J-CORP PTY LTD and LEADBITTER - [2008] WASAT 266

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: RAYTHEON AUSTRALIA PTY LTD and COMMISSIONER FOR EQUAL OPPORTUNITY [2008] WASAT 266

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR A WARNER (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)

HEARD: 19 NOVEMBER 2008

DELIVERED : 19 NOVEMBER 2008 – written reasons for extempore decision

FILE NO/S: EOA 28 of 2008

BETWEEN: RAYTHEON AUSTRALIA PTY LTD
Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent

Catchwords:

Exemption application - Exceptions under EO Act - National origin - Race discrimination - Dual nationality - Third country nationals - Citizenship - American defence requirements - International traffic in export administration regulations (USA) - Arms regulations (USA) - ITAR - Access to American technology by foreign nationals

Legislation:

Arms Export Control Act (US)
Equal Opportunity Act 1984 (WA), Pt II, Pt IIA, Pt III, Pt IV, Pt IVA, Pt IVB, s 3, s 4, s 37, s 37(1), s 37(2), s 39, s 49, s 50, s 68, s 68(1), s 135, s 135(1), s 135(6), s 137
Equal Opportunity Regulations 1986(WA), reg 24
International Traffic in Arms Regulations, Pt 120.16, Pt 120.17, Pt 121, s 123, s 124, s 124.8(5), s 125, s 126.7
Racial Discrimination Act 1975 (Cth)
State Administrative Tribunal Act 2004 (WA), s 39(1)(e)

Result:

Exemption granted for five years with conditions

Category: B

Representation:

Counsel:

Applicant: Mr Kirk and Ms Priestly
Respondent: Mr J Rosales-Castanada

Solicitors:

Applicant: Allens Arthur Robinson
Respondent: Commissioner for Equal Opportunity

Case(s) referred to in decision(s):

ACT Human Rights Commission v Raytheon Australia Pty Limited and Ors [2009] ACTSC 55
ADI Limited (Exemption) [2004] VCAT 1963
ADI Limited and Ors and Commissioner for Equal Opportunity and Ors [2005] WASAT 259
BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799
BAE Systems Australia Ltd [2008] SAEOT 1
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
Exemption application re
Boeing Australia Holdings Pty Ltd and related entities [2003] QADT 21
Exemption Application re
Raytheon Australia Pty Limited and Ors [2008] QADT
Exemption Order re ADI, 28 June 2005, New South Wales Government Gazette, 1 July 2005, 3495
Exemption Order re Boeing Australia Holdings Pty Ltd, 8 February 2005, New South Wales Government Gazette, 11 February 2005, 391
Exemption Order re Raytheon Australia Pty Ltd and Ors, 15 October 2008
Raytheon Australia Pty Ltd and Ors [2008] SAEOT 3
Raytheon Australia Pty Ltd and Ors and ACT Human Rights Commission [2008] ACTAAT 19
Raytheon Australia Pty Ltd and Ors Exemption Application (Anti-Discrimination) [2007] VCAT 2230

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In these proceedings the Tribunal made an order s 135(1) of the Equal Opportunity Act 1984 (WA) granting Raytheon Australia Pty Ltd an exemption from the operation of s 37, s 39 and s 49 of the Equal Opportunity Act 1984 (WA). Those sections deal with discrimination on the ground of race. The exemption will…

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.

Keep reading for free

Create a free CaseChat account to read J-CORP PTY LTD and LEADBITTER and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] WASAT 266
Decision Date: 21 OCTOBER 2008

CaseChat Overview and Summary

J-Corp Pty Ltd filed an application for leave to review a decision made by the Building Disputes Tribunal (BDT) on 18 April 2008. The dispute pertains to complaints regarding the construction and completion of a residential building. The application was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the application for leave to review was permissible and, if so, the grounds on which it could be granted. Specifically, the court had to determine whether the argument of duress, which was not raised before the BDT, could form the basis of the review. The court also needed to assess whether the BDT had made an error in its legal conclusions, warranting judicial review.

The court found that the applicant had not argued the duress point before the BDT, and thus, it was not open to the applicant to raise it for the first time in an application for review. However, the court concluded that the argument of duress was so compelling and significant that it constituted a legal error in the BDT's decision. The court acknowledged that the duress argument, if proven, could have a substantial impact on the fairness of the original decision. Consequently, the court granted the application for leave to review in relation to each of the four complaints. The court emphasized that the review was limited to the specific legal error identified and did not constitute a full rehearing of the case.

Orders

Orders of the court

1. Leave to review the decision of the Building Disputes Tribunal made on 18 April 2008 and reflected in Order to Pay 171/ 2007*2008 is granted in relation to each of complaints 1, 2, 3 and 4 as described in these reasons.

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

JUDGE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

Full text does not contain this section.