Goldsteen v TCI Pty Ltd - [2019] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Goldsteen v TCI Pty Ltd [2019] NSWCATAD 178
Hearing dates: 31 July 2019
Date of orders: 30 August 2019
Decision date: 30 August 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
The Respondent's application for orders to dismiss the complaint is dismissed.

Catchwords: SEX (PREGNANCY) AND CARER’S RESPONSIBILITIES DISCRIMINATION – victimisation - aiding and abetting - whether case should be dismissed for want of jurisdiction - dispute between residents of different states - whether case should be dismissed on basis it is frivolous, vexatious, misconceived or lacking in substance - whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the Regulations.
Legislation Cited: Anti-Discrimination Act 1977
Corporations Act 2001
Strata Schemes Management Act 1996 (NSW)
Cases Cited: AB v State New South Wales [2014] NSWSC 81
Alchin v Rail Corporation NSW [2012] NSWADT 142
Australian Security and Investment Commission v Edensor Nominees Pty Ltd [2001 ] HCA 1
Bonner v Secretary, Department of Industry
[2017] NSWCATAD 229
Burns v Corbett [2018] HCA 15
Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Dee v Commissioner of Police & Anor ( 2003) NSW ADT 217
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Ehl v Department of Education and Training and NSW Teachers Federation ( 1999) NSW ADT 102
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
General Steel Industries Inc -v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
GS-v-MS [2019] WASC 255
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009]NSWADTAP20
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Purvis v State of NSW [2003] HCA 62; (2003) 217 CLR 92
Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36
Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Texts Cited: Bernard Cairns, Australian Civil Procedure 10th edition, Thomson Reuters
Category: Procedural and other rulings
Parties: Sarah Goldsteen (Applicant, Respondent to strike out application)
TCI Pty Ltd (First Respondent)
Babak Moini ( Second Respondent, Applicant for strike out)
Representation:
Counsel:
Ms Saunders (Applicant)
Ms Francois (Respondent)
Solicitors:
Danny King Legal (Applicant in complaint)
William Roberts Lawyers (Respondent in complaint)

File Number(s): 2017/00336731
Publication restriction: Nil

REASONS FOR DECISION

The issue

The issue in this matter is whether the Tribunal should dismiss the complaint made by Ms Goldsteen against TCI Pty Ltd (TCI) and Mr Babak Moini, Director of TCI, because the Tribunal lacks jurisdiction to deal with the matter or because it is either misconceived, lacking in substance or failing to disclose a contravention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATAD 178
Decision Date: 30 August 2019

CaseChat Overview and Summary

Goldsteen v TCI Pty Ltd involved a dispute between an employee and her employer, heard in the Fair Work Commission. The employee alleged that she had been subjected to discrimination on the grounds of her pregnancy and carer’s responsibilities, as well as victimisation by her employer. The employer sought to have the complaint dismissed on several grounds, including a lack of jurisdiction, frivolousness, vexatiousness, misconception, and the absence of any contravention of the relevant Act or Regulations.

The legal issues before the court included whether the tribunal had jurisdiction to hear the matter given that the parties resided in different states, and whether the complaint should be dismissed as frivolous, vexatious, misconceived, or lacking in substance. The court also had to consider whether the conduct alleged, if proven, would constitute a contravention of the Act or Regulations. The employer argued that the complaint should be dismissed as the conduct alleged did not contravene the Act or Regulations.

The court found that the tribunal did have jurisdiction to hear the matter, as the dispute involved an employment relationship governed by federal law. The court also found that the complaint was not frivolous, vexatious, misconceived, or lacking in substance, and that the conduct alleged, if proven, would indeed constitute a contravention of the Act or Regulations. The employer's application to dismiss the complaint was therefore dismissed.

Orders

Orders of the court

The Respondent's application for orders to dismiss the complaint is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Goldsteen v TCI Pty Ltd [2019] NSWCATAD 178
Hearing dates:	31 July 2019
Date of orders:	30 August 2019
Decision date:	30 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	The Respondent's application for orders to dismiss the complaint is dismissed.
Catchwords:	SEX (PREGNANCY) AND CARER’S RESPONSIBILITIES DISCRIMINATION – victimisation - aiding and abetting - whether case should be dismissed for want of jurisdiction - dispute between residents of different states - whether case should be dismissed on basis it is frivolous, vexatious, misconceived or lacking in substance - whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the Regulations.
Legislation Cited:	Anti-Discrimination Act 1977 Corporations Act 2001 Strata Schemes Management Act 1996 (NSW)
Cases Cited:	AB v State New South Wales [2014] NSWSC 81 Alchin v Rail Corporation NSW [2012] NSWADT 142 Australian Security and Investment Commission v Edensor Nominees Pty Ltd [2001 ] HCA 1 Bonner v Secretary, Department of Industry [2017] NSWCATAD 229 Burns v Corbett [2018] HCA 15 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dee v Commissioner of Police & Anor ( 2003) NSW ADT 217 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ehl v Department of Education and Training and NSW Teachers Federation ( 1999) NSW ADT 102 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc -v- Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 GS-v-MS [2019] WASC 255 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009]NSWADTAP20 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Purvis v State of NSW [2003] HCA 62; (2003) 217 CLR 92 Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Texts Cited:	Bernard Cairns, Australian Civil Procedure 10th edition, Thomson Reuters
Category:	Procedural and other rulings
Parties:	Sarah Goldsteen (Applicant, Respondent to strike out application) TCI Pty Ltd (First Respondent) Babak Moini ( Second Respondent, Applicant for strike out)
Representation:	Counsel: Ms Saunders (Applicant) Ms Francois (Respondent) Solicitors: Danny King Legal (Applicant in complaint) William Roberts Lawyers (Respondent in complaint)
File Number(s):	2017/00336731
Publication restriction:	Nil