Gutierrez v Mur Shipping Australia Pty Limited

The Court of Appeal heard an appeal from the Federal Circuit and Family Court of Australia in the case of Gutierrez v Mur Shipping Australia Pty Limited. The appellant, Mr Gutierrez, was an employee of the respondent, Mur Shipping Australia Pty Limited, who claimed that he was subjected to age discrimination in his employment, leading to his dismissal. The primary judge had found in favour of Mr Gutierrez and awarded him $20,000 in general damages and no damages for economic loss. The respondent appealed against the decision, arguing that the award of damages was inadequate and that the trial judge had erred in law and fact in assessing the damages. The appeal focused on the assessment of general damages and damages for economic loss, with the respondent arguing that the primary judge had mischaracterised the evidence of harm and that the award of damages was not justified.

The Court of Appeal found that the appeal should be allowed and that Mr Gutierrez was entitled to an award of $90,000 for general damages and an amount for economic loss. The Court found that the primary judge had erred in his assessment of the award of general damages, as he had mischaracterised the evidence of harm and had not considered the full extent of the impact of the discrimination on Mr Gutierrez. The Court also found that the primary judge had erred in his assessment of damages for economic loss, as he had concluded that damages were not available because Mr Gutierrez had elected to terminate his employment. However, the evidence showed that Mr Gutierrez was unable to work as a result of the discrimination, and therefore damages for economic loss were available.

The Court of Appeal allowed the appeal and set aside the order for general damages, ordering that Mr Gutierrez be paid $90,000 in general damages. The Court also directed the parties to provide short further submissions addressing the quantum of damages for economic loss. The Court found that the provisional view was that the amount claimed by Mr Gutierrez should be awarded, but some adjustment may be necessary. The respondent was ordered to pay the appellant's costs of the appeal. The Court noted that any party wishing to be heard in relation to the submissions in relation to the assessment of damages for economic loss was to notify the associate to Justice Burley by the time identified in the judgment.