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Lovejoy v Myer Stores Ltd

Lovejoy v Myer Stores Ltd

Case [1999] VSC 271 4 August 1999

Anti-Discrimination Law

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SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 6670 of 1998

A.A. LOVEJOY	Appellant
v
MYER STORES LTD & STEPHEN PART	Respondents
No. 7211 of 1998
A.A. LOVEJOY	Plaintiff
v
MYER STORES LTD, S. PART AND OTHERS	Defendants

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JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 and 22 July 1999
DATE OF JUDGMENT:	4 August 1999
CASE MAY BE CITED AS:	Lovejoy v Myer Stores Ltd and Anor (No. 2)
MEDIA NEUTRAL CITATION:	[1999] VSC 271

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Anti-Discrimination Tribunal – Appeal - Equal Opportunity Acts 1984 and 1995 – Prerogative writ – Judicial review – Order 56 - Extension of time – Special circumstances

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	Mr D. Perkins	Kuek & Assoc.
For the Respondents/Defendants	Mr S.W. Kaye QC with Ms F. O'Brien	Freehill Hollingdale & Page

HER HONOUR:

Adam Lovejoy brought two proceedings, one being an appeal and one by originating motion seeking to challenge a decision of the Anti Discrimination Tribunal.

The background to the proceedings are that Mr Lovejoy lodged complaints under the Equal Opportunity Act 1984 ("the 1984 Act") alleging religious and sexual discrimination and victimisation, sexual harassment and discrimination on the grounds of impairment, namely mental illness. The complaints were made against Myer Stores Limited and its employees (collectively referred to hereafter as "Myer"). Myer is the principal respondent and defendant in both proceedings. Myer operates a very large department store in the central business district of Melbourne.

Mr Lovejoy alleged that Myer discriminated against him in the provision of goods and services "by engaging in a course of conduct over the period from Mothers' Day 1993 until Christmas 1993 of harassing, assaulting and humiliating … and excluding or ejecting him from Myer stores". In summary, Mr Lovejoy alleged that Myer had refused him access to specific areas of its department store in Melbourne, threatened eviction, directed his conduct and, eventually, refused him entry to the store. Mr Lovejoy alleged that Myer conducted itself in this way contrary to the 1984 Act. Myer alleged that insofar as it treated Mr Lovejoy less favourably it did so as a result of his conduct within the department store and the concern and anxiety caused to Myer staff by that conduct. Myer applied to the Equal Opportunity Board pursuant to s.46C of the 1984 Act to have the complaint struck out on the grounds that it was frivolous, vexatious, misconceived or lacking in substance. In its reasons dated 10 April 1996 the Board concluded that "the complaint is lacking in substance in those aspects of it that claim discrimination on the ground of sex and religion or political activity or belief. The complaint in all its other parts should proceed to a full hearing". As a consequence of the ruling of the Board the complaint of Mr Lovejoy was confined to discrimination based on the ground of impairment being mental illness.

The Equal Opportunity Act 1995 ("the 1995 Act

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 Lovejoy v Myer Stores Ltd

Details

AGLC: Lovejoy v Myer Stores Ltd [1999] VSC 271
Case: [1999] VSC 271
Decision Date: 4 August 1999

CaseChat Overview and Summary

In the case of Lovejoy v Myer Stores Ltd, the applicant, Lovejoy, appealed a decision of the Anti-Discrimination Tribunal. Lovejoy had alleged that Myer Stores Ltd had discriminated against her on the basis of her disability, in contravention of the Equal Opportunity Acts 1984 and 1995. The Tribunal dismissed Lovejoy's application for an extension of time to file her appeal, leading to her appeal to the Supreme Court of Victoria. The primary legal issue in the appeal was whether the Supreme Court had the authority to grant an extension of time for the appeal under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Additionally, the court needed to determine whether the Tribunal's decision to refuse Lovejoy's application for an extension of time constituted a jurisdictional error, warranting judicial review.

The court began by examining the relevant provisions of the Supreme Court Rules and the Anti-Discrimination Act 1998. It was established that the Supreme Court has the inherent jurisdiction to extend time under Order 56, but such extensions are not to be granted lightly. The court found that Lovejoy had failed to demonstrate special circumstances warranting an extension of time. Furthermore, the court held that the Tribunal's decision to refuse the extension of time was not a jurisdictional error, as it did not involve a failure to exercise the relevant statutory power or to take into account relevant considerations. Instead, the Tribunal had correctly exercised its discretion in accordance with the statutory provisions and relevant case law. Consequently, the court dismissed Lovejoy's appeal and affirmed the Tribunal's decision.

The Supreme Court's decision in this case underscores the importance of demonstrating special circumstances to justify an extension of time in appellate proceedings. The court's ruling also highlights the limited scope of judicial review in cases involving the exercise of discretion by administrative tribunals. The court's dismissal of Lovejoy's appeal and affirmation of the Tribunal's decision serves as a reminder of the need for parties to carefully consider the timeliness of their legal actions and to provide compelling reasons for any delays in filing their appeals.

Orders