Kirkland v Wattle

[2002] FCA 145

FEDERAL COURT OF AUSTRALIA

Kirkland v Wattle [2002] FCA 145

RAYMOND KIRKLAND v MARGARET JEAN WATTLE

N 1362 OF 2001

DOWSETT J
14 FEBRUARY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1362 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	RAYMOND KIRKLAND APPELLANT
AND:	MARGARET JEAN WATTLE RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	14 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.The matter be remitted to the Federal Magistrates Court for re-hearing by another magistrate.

THE COURT CERTIFIES THAT:

3.In the opinion of the Court it would be appropriate for the Attorney-General, pursuant to s 6(3) of the Federal Proceedings (Costs) Act 1981 (Cth), to authorize a payment of $300 to the respondent.

4.In the opinion of the Court it would be appropriate for the Attorney-General, pursuant to s 8(3) of the Federal Proceedings (Costs) Act 1981 (Cth), to authorize payments to both the appellant and the respondent as the Attorney-General sees fit for costs incurred in relation to the new trial.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1362 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	RAYMOND KIRKLAND APPELLANT
AND:	MARGARET JEAN WATTLE RESPONDENT

JUDGE:	DOWSETT J
DATE:	14 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a magistrate awarding damages pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The unlawful discrimination complained of is as defined in s 3 of the Act, namely conduct rendered unlawful pursuant to Part II of the Sex Discrimination Act 1984 (Cth). The relevant definition is of the term “unlawful discrimination” and not that of the term “discrimination” which does not apply for the purposes of s 46PO.

2. The award of damages was made against the present appellant.  The proceedings had been brought against him and his wife, Daphne Geraldine Kirkland, trading as Kirk’s Radio Cab.  However the magistrate found that a company, Kirk’s Enterprises Pty Ltd owned that name and was trading under it.  He concluded that the company was the respondent’s employer.  Mr and Mrs Kirkland were directors.  The claim against Mrs Kirkland was dismissed.

3. I need not rehearse in great detail the facts of the case save to say that the complainant, the present respondent was employed by Raymond and Daphne Kirkland as a taxi driver.  She complained of certain conduct by Mr Kirkland, the appellant towards her, which conduct would certainly amount to sexual harassment, and commenced proceedings.  The magistrate accepted her evidence and awarded her the sum of $24,200.  I should say in passing that the basis of calculating the award may be suspect but that matter has not been addressed on appeal.  The matter must go back for re-trial for another reason. 

4. In par 35 of his reasons the magistrate said: