Hehir v Smith - [2002] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

Hehir & Another v Smith [2002] QSC 136

PARTIES:

JOHN HEHIR
(first appellant)
and
FINANCIAL ADVISERS AUSTRALIA PTY LTD
(second appellant)
v
SANDRA SMITH
(respondent)

FILE NO:

S 6622/01

DIVISION:

Trial Division

PROCEEDING:

Appeal from Anti-Discrimination Tribunal

DELIVERED ON:

16 May 2002

DELIVERED AT:

Brisbane

JUDGE:

Wilson J

ORDER:

1.     That the appeal be allowed;

2.       That the order of the Anti-Discrimination Tribunal that the appellants pay the respondent the sum of $17,000.00 by way of compensation within 60 days of the date of the order be set aside;

3.       In lieu thereof, that the appellants pay the respondent the sum of $14,000.00 by way of compensation on or before 31 May 2002;

4.       That the costs of the proceedings before the Anti-Discrimination Tribunal be remitted to the Tribunal for it to determine, taking account of submissions already made to it, the extent of the appellants' success in the appeal to the Supreme Court, and any further submissions it may receive on costs;

5.       That as for the costs reserved by the Chief Justice on 23 August 2001, the appellants pay the respondent’s costs of and incidental to the interlocutory application to be assessed on the standard basis;

6.       Otherwise, that the respondent pay the appellants' costs of and incidental to the appeal to be assessed on the standard basis, those costs to be limited to the costs of the hearing on 22 February 2002 and one half of all other costs of and incidental to the appeal;

7. That the respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973.

CATCHWORDS:

PROCEDURE – COSTS – appeal to Supreme Court from Anti-Discrimination Tribunal – where appellant succeeded in having compensation reduced - where respondent made appellant offer equal to result on appeal

Anti-Discrimination Act 1991 (Qld), s 209(1)(b), s 213
Appeal Costs Fund Act 1973 (Qld), s 15(1)

Deepcliffe Pty Ltd v Gold Coast City Council [2001] QCA 396, Appeal No 10673 of 2000, 25 September 2001, considered.
Griffith University v Ivory, SC No 1818 of 1997, 9 May 1997, considered.
JB Geraghty & ors v Dairy Industry Tibunal & ors [2001] QSC 145, SC No 1466 of 2000, 19 May 2000, considered.
Tector v FAI General Insurance Co [2000] QCA 426, Appeal No 7391 of 1999, 17 October 2000, considered.

COUNSEL:

DP O’Gorman for the appellants

SJ Keim for the respondent

SOLICITORS:

Lynch & Company for the appellants

Susan Moriarty for the respondent

WILSON J: When I published my reasons for judgment in this matter on 10 April 2002, I agreed to receive written submissions on costs (both before the Anti-Discrimination Tribunal and on appeal) and on the form of the order. Such submissions were subsequently received.

The appellants sought orders -

(i)that the respondent pay the appellants' costs of the appeal to be assessed on the standard basis;
(ii)that the respondent be granted an indemnity…

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.

Continue reading Hehir v Smith

Details

AGLC: Hehir v Smith [2002] QSC 136
Case: [2002] QSC 136
Decision Date: 16 May 2002

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the appellant, Hehir, sought an appeal against a decision of the Anti-Discrimination Tribunal. The dispute concerned a compensation award made in favour of the respondent, Smith, following an anti-discrimination claim. The Anti-Discrimination Tribunal had awarded Smith $17,000 in compensation, which Hehir sought to reduce on appeal to the Supreme Court. The central legal issues revolved around the appropriate level of compensation for the discrimination experienced by Smith, and the costs associated with the appeal process, particularly in light of the respondent's settlement offer equivalent to the outcome of the appeal.

The court reviewed the evidence and arguments presented at the Anti-Discrimination Tribunal and considered the appeal's merits. The Supreme Court found that the original compensation award was excessive and reduced it to $14,000. Regarding costs, the court held that Smith was entitled to an indemnity certificate for the appeal costs under the Appeal Costs Fund Act 1973. The court also remitted the costs of the proceedings before the Anti-Discrimination Tribunal back to the Tribunal for reassessment, taking into account the appellant's success on appeal. As for the reserved costs, the court ordered Hehir to pay Smith’s costs of the interlocutory application on the standard basis and otherwise, Smith to pay Hehir's costs of the appeal, limited to specific costs.

The final orders of the court were to allow the appeal, set aside the original compensation order, substitute it with a reduced compensation payment of $14,000, remit the costs of the proceedings before the Anti-Discrimination Tribunal back for reassessment, and direct that Smith pay Hehir’s costs of the interlocutory application. Additionally, the court ordered Hehir to pay Smith's costs of the appeal to a limited extent, and granted Smith an indemnity certificate for the appeal costs.

Orders

Orders of the court

1. That the appeal be allowed;

2. That the order of the Anti-Discrimination Tribunal that the appellants pay the respondent the sum of $17,000.00 by way of compensation within 60 days of the date of the order be set aside;

3. In lieu thereof, that the appellants pay the respondent the sum of $14,000.00 by way of compensation on or before 31 May 2002;

4. That the costs of the proceedings before the Anti-Discrimination Tribunal be remitted to the Tribunal for it to determine, taking account of submissions already made to it, the extent of the appellants' success in the appeal to the Supreme Court, and any further submissions it may receive on costs;

5. That as for the costs reserved by the Chief Justice on 23 August 2001, the appellants pay the respondent’s costs of and incidental to the interlocutory application to be assessed on the standard basis;

6. Otherwise, that the respondent pay the appellants' costs of and incidental to the appeal to be assessed on the standard basis, those costs to be limited to the costs of the hearing on 22 February 2002 and one half of all other costs of and incidental to the appeal;

7. That the respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hehir & Another v Smith [2002] QSC 136
PARTIES:	JOHN HEHIR (first appellant) and FINANCIAL ADVISERS AUSTRALIA PTY LTD (second appellant) v SANDRA SMITH (respondent)
FILE NO:	S 6622/01
DIVISION:	Trial Division
PROCEEDING:	Appeal from Anti-Discrimination Tribunal
DELIVERED ON:	16 May 2002
DELIVERED AT:	Brisbane
JUDGE:	Wilson J
ORDER:	1. That the appeal be allowed; 2. That the order of the Anti-Discrimination Tribunal that the appellants pay the respondent the sum of $17,000.00 by way of compensation within 60 days of the date of the order be set aside; 3. In lieu thereof, that the appellants pay the respondent the sum of $14,000.00 by way of compensation on or before 31 May 2002; 4. That the costs of the proceedings before the Anti-Discrimination Tribunal be remitted to the Tribunal for it to determine, taking account of submissions already made to it, the extent of the appellants' success in the appeal to the Supreme Court, and any further submissions it may receive on costs; 5. That as for the costs reserved by the Chief Justice on 23 August 2001, the appellants pay the respondent’s costs of and incidental to the interlocutory application to be assessed on the standard basis; 6. Otherwise, that the respondent pay the appellants' costs of and incidental to the appeal to be assessed on the standard basis, those costs to be limited to the costs of the hearing on 22 February 2002 and one half of all other costs of and incidental to the appeal; *7. That the respondent be granted an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act* 1973.**
CATCHWORDS:	PROCEDURE – COSTS – appeal to Supreme Court from Anti-Discrimination Tribunal – where appellant succeeded in having compensation reduced - where respondent made appellant offer equal to result on appeal Anti-Discrimination Act 1991 (Qld), s 209(1)(b), s 213 Appeal Costs Fund Act 1973 (Qld), s 15(1) Deepcliffe Pty Ltd v Gold Coast City Council [2001] QCA 396, Appeal No 10673 of 2000, 25 September 2001, considered. Griffith University v Ivory, SC No 1818 of 1997, 9 May 1997, considered. JB Geraghty & ors v Dairy Industry Tibunal & ors [2001] QSC 145, SC No 1466 of 2000, 19 May 2000, considered. Tector v FAI General Insurance Co [2000] QCA 426, Appeal No 7391 of 1999, 17 October 2000, considered.
COUNSEL:	DP O’Gorman for the appellants SJ Keim for the respondent
SOLICITORS:	Lynch & Company for the appellants Susan Moriarty for the respondent