Lunn v Storm Retirement Village (EOD) - [2003] NSWADTAP 62

Appeal Panel - Internal

CITATION: Lunn v Storm Retirement Village (EOD) [2003] NSWADTAP 62 revised - 2/12/2003

PARTIES: APPELLANT
Sharyn Lunn
RESPONDENT
Storm Retirement Village

FILE NUMBER: 039042

HEARING DATES: 11/09/2003

SUBMISSIONS CLOSED: 09/11/2003

DATE OF DECISION:
12/01/2003

DECISION UNDER APPEAL:
Lunn v Storm Retirement Village [2003] NSWADT

BEFORE: Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Bolt M - Member

CATCHWORDS: adequacy of reasons - finding contrary to evidence - relevant/irrelevant considerations

MATTER FOR DECISION: Principal Matter

FILE NUMBER UNDER APPEAL: 021123

DATE OF DECISION UNDER APPEAL: 05/22/2003

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Supreme Court Rules 1970

CASES CITED: Assal v Department of Health, Housing & Community Services (1992) EOC 92-409
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Collector of Customs v Pozzolanic (1993) FCR 280
Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995)
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hatic v Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43
Langley v Niland [1981] 2 NSWLR 104
McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477
Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11)
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140
O'Callaghan v Loder [1983] 3 NSWLR 89
Pannizutti v Trask (1987) 10 NSWLR 531
Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported)
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Rajski v Powell (1987) 11 NSWLR 522
Spellson v George (1992) 26 NSWLR 666
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Wickstead v Browne (1992) 30 NSWLR 1
Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26

REPRESENTATION: APPELLANT
C Howell, counsel
RESPONDENT
S Winters, counsel

ORDERS: 1 The Tribunal’s order that it has no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001 is affirmed; 2 The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside; 3 The Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002; 4 The matter is remitted for reconsideration by a differently constituted Tribunal.

Background to the complaint

1 Ms Lunn, the appellant, started working for the Storm Retirement Village (the respondent) as the Director of Nursing on 3 May 1999. On 17 January 2002 she complained to the President of the Anti-Discrimination Board…

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.

Keep reading for free

Create a free CaseChat account to read Lunn v Storm Retirement Village (EOD) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWADTAP 62
Decision Date: 12/01/2003

CaseChat Overview and Summary

The case of Lunn v Storm Retirement Village (EOD) involved the plaintiff, Lunn, who brought a complaint to the Administrative Appeals Tribunal (AAT) alleging discrimination and victimisation by the defendant, Storm Retirement Village. The Tribunal had previously dismissed the complaint, finding it lacked jurisdiction over events occurring before a specific date and that the evidence did not support the claims of discrimination and victimisation. Lunn appealed the decision to the court, arguing that the Tribunal’s findings were flawed and that it should have jurisdiction over the earlier events.

The primary legal issues before the court were whether the Tribunal had correctly exercised its jurisdiction regarding events prior to a certain date, whether the Tribunal’s findings were contrary to the evidence, and what considerations were relevant or irrelevant in its decision-making process. The court had to determine if the Tribunal had erred in law by dismissing the complaint based on jurisdictional grounds and whether the Tribunal had appropriately weighed the evidence in making its findings.

In addressing these issues, the court found that the Tribunal had correctly affirmed its lack of jurisdiction over events before a specific date, but it had erred in dismissing the complaint of victimisation for the period prior to another date. The court held that the Tribunal should have jurisdiction over the period six months before a particular date, contrary to its earlier finding. Furthermore, the court noted that the Tribunal's findings were contrary to the evidence presented, particularly in regard to the discrimination and victimisation claims. The court concluded that the Tribunal had considered irrelevant factors and failed to address relevant ones in making its determination.

Accordingly, the orders made by the court affirmed the Tribunal’s jurisdictional limitation on events before a certain date but set aside the dismissal of the discrimination and victimisation complaints. The court substituted these orders with a decision that the Tribunal had jurisdiction over the victimisation claim for the period six months prior to another date. The matter was then remitted to a differently constituted Tribunal for reconsideration, ensuring a fresh perspective on the evidence and applicable legal standards.

Orders

Orders of the court

1 The Tribunal’s order that it has no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001 is affirmed; 2 The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside; 3 The Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002; 4 The matter is remitted for reconsideration by a differently constituted Tribunal.

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

Full text does not contain this section.

CITATION:	Lunn v Storm Retirement Village (EOD) [2003] NSWADTAP 62 revised - 2/12/2003
PARTIES:	APPELLANT Sharyn Lunn RESPONDENT Storm Retirement Village
FILE NUMBER:	039042
HEARING DATES:	11/09/2003
SUBMISSIONS CLOSED:	09/11/2003
DATE OF DECISION:	12/01/2003
DECISION UNDER APPEAL:	Lunn v Storm Retirement Village [2003] NSWADT
BEFORE:	Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Bolt M - Member
CATCHWORDS:	adequacy of reasons - finding contrary to evidence - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal Matter
FILE NUMBER UNDER APPEAL:	021123
DATE OF DECISION UNDER APPEAL:	05/22/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Supreme Court Rules 1970
CASES CITED:	Assal v Department of Health, Housing & Community Services (1992) EOC 92-409 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Collector of Customs v Pozzolanic (1993) FCR 280 Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hatic v Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43 Langley v Niland [1981] 2 NSWLR 104 McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 O'Callaghan v Loder [1983] 3 NSWLR 89 Pannizutti v Trask (1987) 10 NSWLR 531 Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported) Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Rajski v Powell (1987) 11 NSWLR 522 Spellson v George (1992) 26 NSWLR 666 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Wickstead v Browne (1992) 30 NSWLR 1 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:	APPELLANT C Howell, counsel RESPONDENT S Winters, counsel
ORDERS:	1 The Tribunal’s order that it has no jurisdiction to deal with any events alleged to have occurred prior to 17 July 2001 is affirmed; 2 The Tribunal’s order dismissing the complaint of perceived homosexuality discrimination is set aside; 3 The Tribunal’s order dismissing the complaint of victimisation for the period prior to 17 January 2002 is set aside. In substitution for that order, a decision is made that the Tribunal has jurisdiction to entertain a complaint of victimisation occurring during the period of 6 months prior to 18 February 2002; 4 The matter is remitted for reconsideration by a differently constituted Tribunal.