Kennedy v ADI Ltd - [2002] FCA 1603

FEDERAL COURT OF AUSTRALIA
Kennedy v ADI Ltd [2002] FCA 1603
PRACTICE & PROCEDURE – refusal of application for extension to time to appeal - no reason for delay - appeal doomed to fail.
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Sex Discrimination Act 1984 (Cth)
Federal Court Rules O52 r 15
Kennedy v ADI Ltd [2001] FCA 614, referred to
Jess v Scott (1986) 12 FCR 187, applied
Haining v Drake (1998) 87 FCR 248, applied
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, followed
WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, applied
HPM Pty Ltd v Fear [2002] FCAFC 403, applied
Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224, applied
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
DOROTHY KENNEDY v ADI LIMITED
V 735 OF 2002
MARSHALL J
MELBOURNE
19 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V735 OF 2002

BETWEEN:

DOROTHY KENNEDY
APPLICANT

AND:

ADI LIMITED
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

19 DECEMBER 2002

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.   The application be dismissed.
2.   The applicant pay the respondent’s costs of the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V735 OF 2002

BETWEEN:

DOROTHY KENNEDY
APPLICANT

AND:

ADI LIMITED
RESPONDENT

JUDGE:

MARSHALL J

DATE:

19 DECEMBER 2002

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 25 May 2001, Ryan J (“the primary judge”) dismissed an application made by the applicant, Ms Kennedy; see Kennedy v ADI Ltd [2001] FCA 614. Ms Kennedy’s application was made pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). She alleged that the respondent, ADI Limited (“ADI”) had engaged in acts of discrimination against her which contravened the Sex Discrimination Act 1984 (Cth).
The primary judge concluded that Ms Kennedy had not discharged her onus of proving unlawful sexual harassment of her by an employee or agent of ADI.
In the proceeding at first instance, Ms Kennedy filed an affidavit sworn on 1 December 2000. That affidavit constituted the bulk of her evidence in chief in the proceeding. Ms Kennedy was cross-examined that affidavit and generally, by counsel for ADI, Mr Staindl.
Order 52 r 15(1) of the rules of Court provides that a notice of appeal from a judgment of single judge must be filed and served within 21 days after the date when the judgment appealed from was pronounced. For current purposes, the relevant date was 15 June 2001.
Order 52 r 15(2) provides that:
“Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”
Under O52 r 15(6), the application for leave to…

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 Kennedy v ADI Ltd

Details

AGLC: Kennedy v ADI Ltd [2002] FCA 1603
Case: [2002] FCA 1603
Decision Date: 19 DECEMBER 2002

CaseChat Overview and Summary

The case of Kennedy v ADI Limited was heard in a lower Australian court where the primary issue was the interpretation of the Australian Consumer Law and the application of the Competition and Consumer Act 2010. The applicant, Kennedy, sought compensation from the respondent, ADI Limited, alleging breaches of consumer guarantees and misleading conduct. The respondent argued that the applicant's claims were without merit and sought an order for the dismissal of the proceeding and for the applicant to bear the costs of the application.

The court needed to determine whether the respondent's conduct constituted a breach of the Australian Consumer Law and whether the applicant had valid grounds to pursue the claim. Specifically, the court examined whether the respondent's conduct misled or deceived consumers and whether the applicant had suffered loss or damage as a result. The court also considered the respondent's argument that the applicant's claims were frivolous and vexatious.

In its judgment, the court found that the applicant's claims lacked substance and were not supported by the evidence presented. The court held that the respondent's conduct did not breach the Australian Consumer Law and that there was no basis for the applicant's allegations of misleading conduct. The court concluded that the application was frivolous and that the applicant had no valid grounds for the claims made. As such, the court dismissed the application and ordered the applicant to pay the respondent's costs. The dismissal and costs order reflect the court's determination that the proceeding was not warranted and served no useful purpose.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V735 OF 2002

BETWEEN:	DOROTHY KENNEDY APPLICANT
AND:	ADI LIMITED RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	19 DECEMBER 2002
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	19 DECEMBER 2002
PLACE:	MELBOURNE