Higgins v Orchard - [2022] TASFC 12

[2022] TASFC 12

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Higgins v Orchard [2022] TASFC 12
PARTIES:	HIGGINS, Frayne
v
ORCHARD, Lucy
FILE NO:	2385/2021
DELIVERED ON:	15 December 2022
DELIVERED AT:	Hobart
HEARING DATE:	26, 27 April 2022
JUDGMENT OF:	Brett J, Jago J, Martin AJ
CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Inquiry – Nature and scope of inquiry – Assessment of compensation – Where one respondent compromises with the complainant before inquiry - Compromise to be taken into account when assessing compensation with respect to another respondent with coordinate liability.

Anti-Discrimination Act 1998 (Tas), ss 13(a), 78(1), 86, 89(1), 94.
Charisteas v Charisteas [2021] HCA 29, 393 ALR 38; Haines v Leves (1987) 8 NSWLR 442; Burton v Houston
[2004] TASSC 57; Elliott v Nanda & Commonwealth [2001] FCA 550; Commissioner of Police v Estate of
Russell [2002] 55 NSWLR 232; Hall v A & A Sheiban Pty Ltd (1989) FCA 72, 20 FCR 217; Commonwealth v
Anti-Discrimination Tribunal [2008] FCAFC 104, 248 ALR 494, referred to.

Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:

Appellant: In person
Respondent: C Mackie

Solicitors:

Respondent: Dobson Mitchell Allport

Judgment Number:	[2022] TASFC 12
Number of paragraphs:	97

Serial No 12/2022 File No 2385/2021

FRAYNE HIGGINS v LUCY ORCHARD

REASONS FOR JUDGMENT	FULL COURT BRETT J JAGO J MARTIN AJ 15 December 2022
Orders of the Court:

1      Appeal allowed.
2      The primary judge's order dismissing the appeal from the Anti-Discrimination Tribunal is set aside.
3      The order of the Anti-Discrimination Tribunal requiring the appellant to pay the complainant the sum of $45,000 by way of compensation is set aside, and replaced with an order that the appellant pay compensation to the complainant in the sum of $22,500.
Serial No 12/2022 File No 2385/2021

FRAYNE HIGGINS v LUCY ORCHARD

REASONS FOR JUDGMENT

FULL COURT
BRETT J
15 December 2022

1 On 20 December 2017, the respondent made a complaint to the Anti-Discrimination Commissioner (the Commissioner) concerning the conduct of the appellant. To avoid confusion arising from terms used in respect of the proceedings relevant to this appeal, I will hereafter refer to the respondent to this appeal as the "complainant". The complaint alleged conduct by the appellant towards the complainant during the course of the complainant's employment as an assistant manager of a retail store operated by her employer, Sanity, between January 2013 and late 2017. The appellant worked as a delivery driver on contract for Toll Transport Pty Ltd (Toll). His duties included making regular stock deliveries to the store.
2 The complaint alleged that the conduct in question was in breach of the Anti-Discrimination Act 1998 (the Act). It included that which can be generally characterised as sexual harassment contrary to s 17(2) of the Act, and victimisation contrary to s 18(2) of the Act. The complaint also alleged that Toll was liable…

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 Higgins v Orchard

Details

AGLC: Higgins v Orchard [2022] TASFC 12
Case: [2022] TASFC 12
Decision Date: 15 December 2022

CaseChat Overview and Summary

In *Higgins v Orchard*, the Supreme Court of Tasmania considered an appeal concerning the assessment of compensation by the Anti-Discrimination Tribunal. The dispute arose from a finding of unlawful discrimination against the appellant, Mr. Higgins, and a co-respondent, Mr. Orchard. Prior to the Tribunal's inquiry into the quantum of compensation, Mr. Orchard reached a settlement with the complainant, agreeing to pay a sum of money. The Tribunal subsequently proceeded to assess compensation against Mr. Higgins, taking into account the settlement amount paid by Mr. Orchard.

The central legal issue before the Supreme Court was whether the Anti-Discrimination Tribunal erred in law by reducing the compensation payable by Mr. Higgins by the amount Mr. Orchard had paid in settlement. Specifically, the Court had to determine the proper approach to assessing compensation when one of two respondents with coordinate liability has compromised their liability with the complainant before the inquiry into the quantum of damages.

The Court held that the Tribunal had correctly applied the principles of assessing compensation. It reasoned that where multiple respondents are found to have engaged in conduct that caused the same loss or damage, and one respondent settles with the complainant, that settlement amount should be taken into account when assessing the compensation payable by the remaining respondent. This approach prevents the complainant from recovering more than their actual loss and ensures that the liability is apportioned fairly between the wrongdoers. The Court affirmed that the Tribunal has the power to consider such settlements to avoid double recovery and to ensure that the compensation awarded reflects the complainant's actual loss.

Orders