Hatic v Linfox Transport (Australia) Pty Ltd - [2003] NSWADT 43

CITATION: Hatic -v- Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Senad Hatic
RESPONDENT
Linfox Transport (Australia) Pty Limited

FILE NUMBER: 021047

HEARING DATES: 23 September 2002

SUBMISSIONS CLOSED: 11/06/2002

DATE OF DECISION:
03/07/2003

BEFORE: Britton A - Judicial Member; Farmer L - Member; Toltz D - Member

APPLICATION: Race Discrimination - In work - Racial - Vilification - Victimisation

MATTER FOR DECISION: Jurisdiction

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Commissioner of Police, New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140
Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26
French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999)
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16

REPRESENTATION: A Cardell-Ree, Solicitor
J Oakley, Barrister

ORDERS: 1. That part of the complaint lodged by the complainant with the President of the Anti-Discrimination Board on 29 June 2000 and referred to the Tribunal that relates to the period before 29 December 1999 is beyond the jurisdiction of the Tribunal. ; 2. The complainant is to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which he seeks to rely within 28 days ; from the date these reasons are published. ; 3. The respondent is to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which it seeks to rely within 28 days of receiving the documents referred to in Order 2;; 4. The complainant is to file and serve in reply within 14 days of receiving the documents referred to in Order ; 3; ; 5. Hearing dates to be set by the Registrar;; 6. Complainant is granted leave on or before 14 days from the date these reasons are published to apply to the Tribunal to have this timetable set aside, if he decides to ask the President to exercise his discretion under s 88(4) of the Anti-Discrimination Act in respect of those matters that occurred before 29 December 1999.; 7. The parties are granted leave to restore this matter for further directions and/or orders upon 7 days notice.

1 This decision concerns the scope of a complaint. The respondent, Linfox Transport (Aust) Pty Ltd makes application under s 111(1) of the Anti-Discrimination Act 1977 (NSW) (“the Act”) to have part of the complaint made by Senad Hatic (“the complainant”) dismissed on the grounds that it is out of time and as a consequence the Tribunal lacks jurisdiction. The complainant contends that the whole of the complaint is “within time” and thus the jurisdictional issue does not arise.
The Complaint
2 Mr Hatic commenced employment with the respondent as a driver in 1996. On 29 June 2000 he lodged a complaint (“the initiating complaint”) with the President of the Anti-Discrimination…

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: [2003] NSWADT 43
Decision Date: 03/07/2003

CaseChat Overview and Summary

In the case of Hatic v Linfox Transport (Australia) Pty Ltd, the complainant, Mr. Hatic, alleged discrimination and unfair treatment by his employer, Linfox Transport, before the Anti-Discrimination Board. The dispute centred around events that transpired prior to 29 December 1999 and involved claims of racial discrimination and unjust termination of employment. The case was referred to the Tribunal for adjudication.

The primary legal issues before the court were whether the Tribunal had jurisdiction over the events that occurred prior to 29 December 1999, and if not, whether the President of the Anti-Discrimination Board had the authority to exercise discretion under s 88(4) of the Anti-Discrimination Act to address those matters. Additionally, the court needed to determine the procedural steps required for the case to proceed.

The Tribunal ruled that it did not have jurisdiction over the events that occurred before 29 December 1999. However, it granted Mr. Hatic leave to apply to the President of the Anti-Discrimination Board to exercise discretion under s 88(4) of the Anti-Discrimination Act. The Tribunal also outlined a procedural timetable for the parties to amend their respective claims and defences, and to exchange witness statements and relevant documents. The hearing dates were to be set by the Registrar, and the parties were allowed to seek further directions and orders within a specified timeframe.

The court's orders included dismissing the part of the complaint related to events before 29 December 1999, requiring the complainant to file amended points of claim, and instructing both parties to exchange amended points of defence, witness statements, and documents within set deadlines. The complainant was also granted leave to apply to the President of the Anti-Discrimination Board to exercise discretion under s 88(4) of the Anti-Discrimination Act, and the parties were allowed to restore the matter for further directions and/or orders with 7 days' notice.

Orders

Orders of the court

1. That part of the complaint lodged by the complainant with the President of the Anti-Discrimination Board on 29 June 2000 and referred to the Tribunal that relates to the period before 29 December 1999 is beyond the jurisdiction of the Tribunal. ; 2. The complainant is to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which he seeks to rely within 28 days ; from the date these reasons are published. ; 3. The respondent is to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which it seeks to rely within 28 days of receiving the documents referred to in Order 2;; 4. The complainant is to file and serve in reply within 14 days of receiving the documents referred to in Order ; 3; ; 5. Hearing dates to be set by the Registrar;; 6. Complainant is granted leave on or before 14 days from the date these reasons are published to apply to the Tribunal to have this timetable set aside, if he decides to ask the President to exercise his discretion under s 88(4) of the Anti-Discrimination Act in respect of those matters that occurred before 29 December 1999.; 7. The parties are granted leave to restore this matter for further directions and/or orders upon 7 days notice.

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

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CITATION:	Hatic -v- Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Senad Hatic RESPONDENT Linfox Transport (Australia) Pty Limited
FILE NUMBER:	021047
HEARING DATES:	23 September 2002
SUBMISSIONS CLOSED:	11/06/2002
DATE OF DECISION:	03/07/2003
BEFORE:	Britton A - Judicial Member; Farmer L - Member; Toltz D - Member
APPLICATION:	Race Discrimination - In work - Racial - Vilification - Victimisation
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police, New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20 Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999) Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
REPRESENTATION:	A Cardell-Ree, Solicitor J Oakley, Barrister
ORDERS:	1. That part of the complaint lodged by the complainant with the President of the Anti-Discrimination Board on 29 June 2000 and referred to the Tribunal that relates to the period before 29 December 1999 is beyond the jurisdiction of the Tribunal. ; 2. The complainant is to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which he seeks to rely within 28 days ; from the date these reasons are published. ; 3. The respondent is to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which it seeks to rely within 28 days of receiving the documents referred to in Order 2;; 4. The complainant is to file and serve in reply within 14 days of receiving the documents referred to in Order ; 3; ; 5. Hearing dates to be set by the Registrar;; 6. Complainant is granted leave on or before 14 days from the date these reasons are published to apply to the Tribunal to have this timetable set aside, if he decides to ask the President to exercise his discretion under s 88(4) of the Anti-Discrimination Act in respect of those matters that occurred before 29 December 1999.; 7. The parties are granted leave to restore this matter for further directions and/or orders upon 7 days notice.