Martin v Hunter Personnel Pty Ltd - [2002] NSWADT 53

CITATION: Martin -v- Hunter Personnel Pty Ltd & ors [2002] NSWADT 53

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Cathlene Martin
RESPONDENTS
Hunter Personnel Pty Ltd
Hugh McKensey
Paul Hankinson
Victor Lewis
Peter Hicks

FILE NUMBER: 981007

HEARING DATES: 11/02/2002

SUBMISSIONS CLOSED: 02/11/2002

DATE OF DECISION:
04/11/2002

BEFORE: Rees N - Judicial Member; Mooney L - Member; Silva A - Member

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Commissioner of Police v Orr [2001] NSWADTAP 16
McGlade v HREOC [2000] FCA 1477
Crewdson v Niland [2002] NSWADTAP 5
Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4

REPRESENTATION: D Hillard, solicitor
R Warren, barrister

ORDERS: 1. Application by the respondents that the complaint be dismissed pursuant to s111 of the Anti-Discrimination Act 1977 refused; 2. The applicant to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which she seeks to rely within 28 days of the date of publication of these reasons; 3. The second, third, fourth and fifth respondents to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which they seek to rely within 28 days of receiving the documents referred to in Order 2; 4. The parties be granted leave to approach the Registrar for the allocation of hearing dates; 5. The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.

1 In this case the respondents have applied for an order pursuant to s111 of the Anti-Discrimination Act 1977 (the Act) that the complaint before the Tribunal be dismissed. The complainant (the applicant in this inquiry), Ms Cathlene Martin, has alleged that the five respondents, Hunter Personnel Pty Ltd, Mr Hugh McKensey, Mr Paul Hankinson, Mr Victor Lewis, and Mr Peter Hicks discriminated against her, in employment, on the ground of disability.

2 The application by the respondents was heard by the Tribunal in Sydney on 11 February 2002. The parties were legally represented: the respondents by Mr Warren, and the applicant by Mr Hillard. It was common ground between the parties that the first respondent, Hunter Personnel Pty Ltd, was wound up by order of the Supreme Court of New South Wales on 24 September 1999 and is now deregistered. Consequently, for the reasons which appear below, it appears that the first respondent cannot participate in these proceedings and that Mr Warren was only able to appear for the second to the fifth respondent.

3 In the paragraphs that follow we have set out the background to this complaint, the submissions made in support of, and in opposition to, the s111 application, and our reasons for refusing that application. In addition, we have made various directions for the future conduct of this inquiry.

History of the proceedings

4 In order to set out the history of this complaint it has been necessary…

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: [2002] NSWADT 53
Decision Date: 04/11/2002

CaseChat Overview and Summary

In Martin v Hunter Personnel Pty Ltd, the applicant, Martin, sought to lodge a complaint of sex discrimination against the respondents, Hunter Personnel Pty Ltd and several of its directors, under the Anti-Discrimination Act 1977 (NSW). The dispute arose from Martin's allegations that she was dismissed from her employment due to her sex, and that the respondents had failed to provide her with a reason for her termination and subsequent refusal to provide a reference.

The legal issues before the court included whether the complaint was validly lodged and if it disclosed a cause of action under the Act. The respondents argued that the complaint was defective and should be dismissed. The court needed to determine whether the complaint was within the allowable timeframe, whether it sufficiently disclosed a cause of action, and if it was in the interests of justice to allow the complaint to proceed.

The court found that the complaint was indeed validly lodged within the prescribed period, and that it sufficiently disclosed a cause of action. It was noted that the complaint outlined the basic facts and legal grounds for the alleged discrimination, even though it was not in the perfect form. The court held that it was in the interests of justice to allow the complaint to proceed, albeit with some conditions. The applicant was required to file and serve amended documents within a specified timeframe, and the respondents were similarly required to respond within a set period. The court granted the parties leave to approach the Registrar for the allocation of hearing dates and to restore the matter for further directions and/or orders upon notice. Ultimately, the court refused the respondents' application to dismiss the complaint.

Orders

Orders of the court

1. Application by the respondents that the complaint be dismissed pursuant to s111 of the Anti-Discrimination Act 1977 refused; 2. The applicant to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which she seeks to rely within 28 days of the date of publication of these reasons; 3. The second, third, fourth and fifth respondents to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which they seek to rely within 28 days of receiving the documents referred to in Order 2; 4. The parties be granted leave to approach the Registrar for the allocation of hearing dates; 5. The parties be granted leave to restore this matter for further directions and/or orders upon 7 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:	Martin -v- Hunter Personnel Pty Ltd & ors [2002] NSWADT 53
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Cathlene Martin RESPONDENTS Hunter Personnel Pty Ltd Hugh McKensey Paul Hankinson Victor Lewis Peter Hicks
FILE NUMBER:	981007
HEARING DATES:	11/02/2002
SUBMISSIONS CLOSED:	02/11/2002
DATE OF DECISION:	04/11/2002
BEFORE:	Rees N - Judicial Member; Mooney L - Member; Silva A - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police v Orr [2001] NSWADTAP 16 McGlade v HREOC [2000] FCA 1477 Crewdson v Niland [2002] NSWADTAP 5 Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4
REPRESENTATION:	D Hillard, solicitor R Warren, barrister
ORDERS:	1. Application by the respondents that the complaint be dismissed pursuant to s111 of the Anti-Discrimination Act 1977 refused; 2. The applicant to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which she seeks to rely within 28 days of the date of publication of these reasons; 3. The second, third, fourth and fifth respondents to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which they seek to rely within 28 days of receiving the documents referred to in Order 2; 4. The parties be granted leave to approach the Registrar for the allocation of hearing dates; 5. The parties be granted leave to restore this matter for further directions and/or orders upon 7 days notice.