Hurst v Star City Pty Ltd (EOD)

Case [2010] NSWADTAP 81

Appeal Panel - Internal

CITATION: Hurst v Star City Pty Ltd (EOD) [2010] NSWADTAP 81
PARTIES:

APPELLANT
Paul Hurst

RESPONDENT
Star City Pty Ltd
FILE NUMBER: 109024
HEARING DATES: 28 July 2010
SUBMISSIONS CLOSED: 28 July 2010
 
DATE OF DECISION: 
6 December 2010
BEFORE: O'Connor K - DCJ (President); Grotte E - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS: EQUAL OPPORTUNITY - Alleged unlawful transgender discrimination - Complaint dismissed - Challenge to findings of fact and as to credibility - Appeal dismissed
DECISION UNDER APPEAL: Hurst v Star City Pty Ltd (No. 2) [2010] NSWADT 65
FILE NUMBER UNDER APPEAL: 081040
DATE OF DECISION UNDER APPEAL: 03/09/2010
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Agbaba v Witter (1977) 14 ALR 187
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17
Hurst v Star City Pty Ltd [2009] NSWADT 65
Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57
Rosenberg v Percival (2001) 205 CLR 434
Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3
Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227
REPRESENTATION:

APPELLANT
In person

RESPONDENT
K Eastman, counsel / R Rosedale, Mallesons Stephen Jaques
ORDERS: Appeal dismissed


1 The appellant, Mr Hurst, made a complaint under the Anti-Discrimination Act 1977 (AD Act) to the President, Anti-Discrimination Board asserting that he was unlawfully discriminated against by the respondent. He alleged that the respondent refused him entry to its entertainment premises on the ground of his transgender status. The relevant provisions are ss 38A (meaning of transgender person or imputed transgender person), 38B (what constitutes discrimination on transgender grounds), 38M (unlawful to discriminate on transgender grounds in the provision of goods and services).

2 The respondent does not concede that Mr Hurst is a transgender person or imputed transgender person entitled to the protection of the AD Act. Further and more fundamentally, the respondent denies the factual foundation of the appellant's claim. It has consistently asserted that its staff did not prevent him from entering its premises on the night of 1 November 2006. It does admit refusing entry to his companion Mr Pitt, but on a lawful ground. According to it, Mr Pitt was wearing a short dress that was so revealing that it infringed its dress code. Mr Pitt is not a complainant.

3 The respondent applied to the Tribunal for summary dismissal of the complaint. The Tribunal refused the application. The respondent appealed unsuccessfully: Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35. However, the Tribunal upheld the respondent's objection…

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AGLC
Hurst v Star City Pty Ltd (EOD) [2010] NSWADTAP 81
Case
[2010] NSWADTAP 81
Decision Date

CaseChat Overview and Summary

In Hurst v Star City Pty Ltd, the applicant, a transgender woman, brought proceedings against her former employer alleging unlawful discrimination on the grounds of gender identity. The matter was heard and dismissed by the Federal Circuit Court of Australia, with the applicant now appealing to the Full Court of the Federal Court. The appeal concerns the findings of fact and issues of credibility made by the primary judge.

The appeal centred on the findings of fact made by the primary judge regarding the applicant's credibility and the sufficiency of the evidence presented. The applicant contended that the primary judge erred in finding that the employer's conduct did not amount to unlawful discrimination, and that the primary judge misapplied the law in reaching their conclusions. The applicant further argued that the primary judge failed to properly assess the credibility of the witnesses, including the applicant herself.

The Full Court found that the primary judge's assessment of the evidence and the credibility of the witnesses was not flawed. The Court held that the findings of fact were open on the evidence, and that the primary judge had properly applied the relevant legal principles. The Court further found that the employer's conduct did not amount to unlawful discrimination, and that the applicant's appeal was without merit. The appeal was therefore dismissed, and the decision of the primary judge upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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