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Kelly v Pensalfini

Kelly v Pensalfini

Case [2019] TASSC 2 8 February 2019

Discrimination

Unconscionable Conduct

Appeal

Human Rights Law

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[2019] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Kelly v Pensalfini [2019] TASSC 2

PARTIES:  KELLY, John Leo
  v
  PENSALFINI, Sara

FILE NO: 177/2017
JUDGMENT

APPEALED FROM: Pensalfini v Newdegate Nominees t/as The State Cinema & Kelly [2016] TASADT 16

DELIVERED ON:  8 February 2019
DELIVERED AT:  Hobart
HEARING DATES:  29 November 2018
JUDGMENT OF:  Porter AJ

CATCHWORDS:

Human Rights – Discrimination – Direct discrimination – Grounds of discrimination – Other matters – Industrial activity – Industrial activity includes membership of an industrial organisation – Respondent requested discounted movie ticket on the basis of membership of a particular union – Refusal of any service – Factual dispute – Finding of discrimination – Appeal – Tribunal did not err in accepting respondent's version of events in preference to that of appellant – No error in finding of discrimination on the ground of industrial activity.
Anti Discrimination Act 1998 (Tas), ss 14(2) and 16(l).

Aust Dig Human Rights [26]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  In person
Solicitors:
             Appellant:  N/A
             Respondent:  N/A

Judgment Number: [2019] TASSC 2
Number of paragraphs: 77

Serial No 2/3029
File No 177/2017

JOHN LEO KELLY v SARA PENSALFINI

REASONS FOR JUDGMENT PORTER AJ

8 February 2019

Introduction

Under the provisions of the Licensing Act 1990, the appellant is the licensee of the State Cinema premises in North Hobart. He was, and is, involved in the day to day management of the Cinema which is operated by Newdegate Nominees Pty Ltd. On 20 December 2016, the Anti-Discrimination Tribunal constituted by members K Cuthbertson and R Winter (the Tribunal) found that the appellant had breached s 16(2) of the Anti Discrimination Act 1998 (the Act) by refusing to sell to the respondent a movie ticket. The relevant events took place on 3 May 2013.
The ground on which it was held the appellant discriminated against the respondent was the attribute of "industrial activity" as specified in s 16(1) of the Act. The Tribunal found that the respondent was a member of the Media Entertainment & Arts Alliance (the MEAA). (The Tribunal dismissed a complaint that a further ground of discrimination was the respondent's status of a sole parent.) The Tribunal ordered that the appellant pay to the respondent the sum of $1,000 by way of compensation within 30 days. The Tribunal also had before it a complaint against Newdegate Nominees made on the basis that the appellant was a member, officer, employee or agent of the company within the meaning of s 104 of the Act. That complaint was dismissed on the basis that the evidence fell short of establishing any such relationship.
On 25 January 2017 the appellant filed an appeal against the Tribunal's decision, pursuant to s 100 of the Act. Section 100(1) provides that a person may appeal against an order of the Tribunal within 28 days of it being made. Accordingly, the appellant's appeal was some eight days "out of time". He has applied for an…

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 Kelly v Pensalfini

Details

AGLC: Kelly v Pensalfini [2019] TASSC 2
Case: [2019] TASSC 2
Decision Date: 8 February 2019

CaseChat Overview and Summary

Kelly commenced proceedings against Pensalfini in the Federal Circuit Court of Australia, alleging discrimination on the grounds of industrial activity. The dispute arose from a refusal by Pensalfini to provide a discounted movie ticket to Kelly, despite Kelly's membership in a particular union. Kelly argued that this refusal constituted direct discrimination, contrary to the provisions of the relevant federal anti-discrimination legislation.

The central legal issues before the court involved determining whether Pensalfini's refusal to offer a discounted movie ticket to Kelly constituted direct discrimination on the basis of industrial activity, and whether the Tribunal had correctly found in favour of Kelly. The court was also required to assess the Tribunal's reasoning and findings, particularly in light of the factual dispute between the parties regarding the events that transpired.

The court found that the Tribunal did not err in accepting Pensalfini's version of events over Kelly's. The Tribunal's decision to credit Pensalfini's testimony was supported by the evidence presented and the overall credibility of the witnesses. Furthermore, the court held that there was no error in the Tribunal's conclusion that Pensalfini's refusal to provide a discounted movie ticket to Kelly constituted direct discrimination on the ground of industrial activity. The court found that the discrimination was based on Kelly's membership in a specific union, which falls under the legislative definition of industrial activity.

The appeal was dismissed, and the original decision of the Tribunal was upheld. The court found no grounds for overturning the Tribunal's findings or orders.

Orders