Kesby v Nguyen-Dang - [2009] NSWADT 34

CITATION: Kesby v Nguyen-Dang & anor [2009] NSWADT 34

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Julie Kesby
REPSONDENTS
Dr Tuan Nguyen-Dang
South Eastern Sydney & Illawarra Area Health Service

FILE NUMBER: 071086 and 071087

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 15 January 2009

DATE OF DECISION:
17 February 2009

BEFORE: Britton A - Deputy President

CATCHWORDS: Amendment of complaint

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174;
Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54;
Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85;
Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330;
Perera v Commissioner of Corrective Services [2007] NSWADT 115;
West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240;
Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24.

REPRESENTATION:
APPLICANT
In person
RESPONDENT
R Pepper, barrister

ORDERS: 1. Leave to amend the complaint made against Dr Nguyen-Dang by Ms Kesby referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board by letter dated 3 August 2007, to include an allegation of unlawful discrimination on the ground of sex, is refused
2. Ms Kesby is directed to notify Dr Nguyen-Dang’s legal representatives, no later than seven days of the date of these orders, if she wishes to proceed with the threat allegation as an allegation of victimisation. If notice is so provided and Dr Nguyen-Dang objects to that characterisation, he must within seven days of receiving notice: (i) notify the Tribunal and all parties of his objection and (ii) advise whether he wishes the objection to be determined at or before the hearing
3. The parties are granted leave to have this matter listed for further directions and/or orders upon seven days notice.

1 These reasons address an application to amend a complaint made by Ms Julie Kesby. In August 2008, Ms Kesby lodged complaints with the President of the Anti-Discrimination Board, alleging sex harassment and victimisation against former colleague, Dr Tuan Nguyen-Dang. Ms Kesby has also made complaints against her former employer, the South Eastern Sydney & Illawarra Area Health Service (the Area Health Service), alleging unlawful discrimination on the ground of sex and victimisation.

2 Throughout the period covered by these complaints, August 2005 to August 2006, Ms Kesby was employed as a Clinical Nurse Consultant with the Cardiac Unit at Wollongong Hospital. The Hospital is operated by the second respondent, the South Eastern Sydney & Illawarra Area Health Service, which at all relevant times was Ms Kesby’s employer. Dr Nguyen-Dang worked between four to 17 hours per week as a staff specialist within the Unit.

3 In the original complaint Ms Kesby alleged that while working in the Cardiac Unit she was sexually harassed by Dr Nguyen-Dang and, when she complained about his conduct, was victimised by him (ss 22B and 50 of the Anti-Discrimination Act 1977).…

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.

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Details

Case: [2009] NSWADT 34
Decision Date: 17 February 2009

CaseChat Overview and Summary

The parties to this matter are Ms Kesby, the complainant, and Dr Nguyen-Dang, the respondent. The dispute involves an application for leave to amend a complaint against Dr Nguyen-Dang, which was referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board. The complaint initially alleged unlawful discrimination and victimisation, but Ms Kesby sought to amend it to include an allegation of unlawful discrimination on the ground of sex. The matter was heard in the Anti Discrimination Tribunal.

The primary legal issue the court had to determine was whether Ms Kesby should be granted leave to amend her complaint to include an allegation of unlawful discrimination on the ground of sex. Additionally, the court needed to decide how to proceed with the allegation of victimisation, as Dr Nguyen-Dang had objected to its characterisation. The court also considered whether the parties should be granted leave to have the matter listed for further directions and/or orders.

The court found that leave to amend the complaint to include an allegation of unlawful discrimination on the ground of sex should be refused. The court reasoned that the application was made late and did not provide adequate grounds for amendment. Regarding the allegation of victimisation, the court directed Ms Kesby to notify Dr Nguyen-Dang's legal representatives within seven days if she wished to proceed with the threat allegation as an allegation of victimisation. If Dr Nguyen-Dang objected to this characterisation, he was required to notify the Tribunal and all parties of his objection and advise whether he wished the objection to be determined at or before the hearing. Finally, the parties were granted leave to have the matter listed for further directions and/or orders upon seven days notice.

The court's final orders were that leave to amend the complaint to include an allegation of unlawful discrimination on the ground of sex was refused. Ms Kesby was directed to notify Dr Nguyen-Dang's legal representatives if she wished to proceed with the threat allegation as an allegation of victimisation. If Dr Nguyen-Dang objected to this characterisation, he was required to notify the Tribunal and all parties of his objection and advise whether he wished the objection to be determined at or before the hearing. The parties were granted leave to have the matter listed for further directions and/or orders upon seven days notice.

Orders

Orders of the court

1. Leave to amend the complaint made against Dr Nguyen-Dang by Ms Kesby referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board by letter dated 3 August 2007, to include an allegation of unlawful discrimination on the ground of sex, is refused 2. Ms Kesby is directed to notify Dr Nguyen-Dang's legal representatives, no later than seven days of the date of these orders, if she wishes to proceed with the threat allegation as an allegation of victimisation. If notice is so provided and Dr Nguyen-Dang objects to that characterisation, he must within seven days of receiving notice: (i) notify the Tribunal and all parties of his objection and (ii) advise whether he wishes the objection to be determined at or before the hearing 3. The parties are granted leave to have this matter listed for further directions and/or orders upon seven days notice.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Kesby v Nguyen-Dang & anor [2009] NSWADT 34
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Julie Kesby REPSONDENTS Dr Tuan Nguyen-Dang South Eastern Sydney & Illawarra Area Health Service
FILE NUMBER:	071086 and 071087
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	15 January 2009
DATE OF DECISION:	17 February 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Amendment of complaint
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330; Perera v Commissioner of Corrective Services [2007] NSWADT 115; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24.
REPRESENTATION:	APPLICANT In person RESPONDENT R Pepper, barrister
ORDERS:	1. Leave to amend the complaint made against Dr Nguyen-Dang by Ms Kesby referred to the Administrative Decisions Tribunal by the President of the Anti Discrimination Board by letter dated 3 August 2007, to include an allegation of unlawful discrimination on the ground of sex, is refused 2. Ms Kesby is directed to notify Dr Nguyen-Dang’s legal representatives, no later than seven days of the date of these orders, if she wishes to proceed with the threat allegation as an allegation of victimisation. If notice is so provided and Dr Nguyen-Dang objects to that characterisation, he must within seven days of receiving notice: (i) notify the Tribunal and all parties of his objection and (ii) advise whether he wishes the objection to be determined at or before the hearing 3. The parties are granted leave to have this matter listed for further directions and/or orders upon seven days notice.