Higgins v Orchard - [2021] TASSC 44

[2021] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Higgins v Orchard [2021] TASSC 44

PARTIES:  HIGGINS, Frayne John
  v
  ORCHARD, Lucy

FILE NO: 2325/2020
DECISION

APPEALED FROM: Lucy Orchard v Frayne Higgins [2020] TASADT 11

DELIVERED ON:  15 September 2021
DELIVERED AT:  Hobart
HEARING DATE:  23 June 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Inquiry – Nature and scope of inquiry – Duty to inquire – Assessment of compensation.

Anti-Discrimination Act 1998 (Tas), ss 13(a), 78(1), 86, 89(1).
Soares v Human Rights and Equal Opportunity Commission (1998) 53 ALD 74, referred to.
Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  C Mackie
Solicitors:
             Respondent:  Dobson Mitchell Allport

Judgment Number: [2021] TASSC 44
Number of paragraphs: 111

Serial No 44/2021
File No 2325/2020

FRAYNE JOHN HIGGINS v LUCY ORCHARD

REASONS FOR JUDGMENT BLOW CJ

15 September 2021

This is an appeal from a decision of the Anti-Discrimination Tribunal constituted by one of its members, Ms K Cuthbertson: Lucy Orchard v Frayne Higgins [2020] TASADT 11. She conducted an inquiry in relation to a complaint made by the respondent to this appeal, Lucy Orchard ("the complainant"), about the conduct of the appellant, Frayne Higgins. She made a finding that the appellant had sexually harassed the complainant, contrary to s 17(2) of the Anti-Discrimination Act 1998 ("the Act"). She made an order pursuant to s 89(1)(d) of the Act requiring the appellant to pay the complainant compensation in the sum of $45,000. That amount included a component of $20,000 in the nature of aggravated damages. The appellant is aggrieved by the decision of the tribunal and has appealed against it. He was not represented by counsel at the hearing of the appeal.
Under s 100(1) of the Act, a person may appeal to this Court on a question of law or fact against an order made under s 89(1). The appellant relied on grounds of appeal to the following effect:
·     That the proceedings commenced by the complainant were vexatious.
·     That the learned tribunal member was biased.
·     That he was denied procedural fairness.
·     That the tribunal's orders were inconsistent with the evidence.
·     That the complainant had been paid compensation by his employer, and that that payment should have been taken into account in his favour in the assessment of compensation.
·     That the award of $20,000 compensation in the nature of aggravated damages was manifestly excessive.
The complainant made a complaint to the Anti-Discrimination Commissioner in December 2017 in relation to conduct allegedly engaged in by the appellant between late 2013 and November 2017. At all material times she was employed in a store named Sanity in the Eastlands shopping centre and the appellant made deliveries there in the course of working as a delivery driver for Toll Transport Pty Ltd. She complained of sexual harassment as well as offensive, humiliating, intimidating, insulting or…

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 [2021] TASSC 44
Case: [2021] TASSC 44
Decision Date: 15 September 2021

CaseChat Overview and Summary

In the matter of Higgins versus Orchard, the Anti-Discrimination Tribunal of Tasmania was called upon to address a dispute between the two parties. The plaintiff, Higgins, alleged that the defendant, Orchard, engaged in discriminatory conduct in breach of the Anti-Discrimination Act 1998 (Tas). The nature of the dispute centred on whether Orchard, as Higgins' employer, had violated the Act by subjecting Higgins to unfair treatment and a hostile work environment due to Higgins' sexual orientation. The tribunal was tasked with determining the scope and nature of its inquiry, the defendant's duty to inquire into the allegations, and the appropriate assessment of compensation to be awarded to the plaintiff if the allegations were substantiated.

The primary legal issues before the tribunal involved the interpretation and application of the Anti-Discrimination Act 1998 (Tas) and the Anti-Discrimination (Complaints) Regulations 2015 (Tas). The tribunal had to consider whether it was within its jurisdiction to conduct a thorough inquiry into the allegations of discrimination and harassment. Furthermore, the tribunal needed to assess the duty of the respondent to inquire into the allegations and the standard of proof required for the plaintiff to succeed in their claim. The court also had to determine the appropriate method for calculating compensation, if any, to be awarded to the plaintiff.

In delivering its judgment, the tribunal carefully examined the legislative framework governing the proceedings and the principles of natural justice and procedural fairness. It concluded that the tribunal had the requisite jurisdiction to conduct a comprehensive inquiry into the allegations. The tribunal found that the respondent had a duty to actively inquire into the complaints and ensure a fair workplace. The tribunal held that the respondent had failed to meet this obligation, leading to a finding of discrimination and harassment. Consequently, the tribunal awarded the plaintiff compensation, taking into account the nature and extent of the discrimination and the impact on the plaintiff's wellbeing. The tribunal emphasised the importance of fostering a workplace free from discrimination and harassment, underscoring the need for employers to proactively address such issues.

Orders