McCoy v Lever - [2008] NSWADT 206

CITATION: McCoy v Lever [2008] NSWADT 206

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Donna McCoy
RESPONDENT
Mark Lever

FILE NUMBER: 081008

HEARING DATES: 12 June 2008

SUBMISSIONS CLOSED: 12 June 2008

DATE OF DECISION:
1 August 2008

BEFORE: Scahill A - Judicial Member

CATCHWORDS: 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: Dee v Commissioner of Police and Anor [2003] NSWADT 217
Ehl v Department of Education and Training and NSW Teachers Federation [1999] NSWADT 102
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

REPRESENTATION:
APPLICANT
In person
RESPONDENT
In person

ORDERS: 1. The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy’s home during Ms McCoy’s absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA
2. All complaints of vilification against Mr Lever are dismissed pursuant to section 102 ADA
3. The withdrawal of the complaint in relation to unidentified telephone calls to Ms McCoy’s home in late July 2006 is noted
4. Costs are reserved.

REASONS FOR DECISION
1 On 18 of May 2007 Ms Donna McCoy made a complaint to the Anti -Discrimination Board (ADB) alleging that she had been sexually harassed, vilified and victimised in the area of employment while working for Australian Cooperative Foods Ltd trading as Dairy Farmers. The complaint letter annexed a report from an investigator Mr Butt setting out details of Ms McCoy’s allegations.

2 On the 11th of October 2007 the ADB advised Mr Lever that it was investigating complaints which involved allegations against him. On the 11th of December 2007 the ADB received a response to the complaint from Mr Lever. Mr Lever denied that he had sexually harassed or victimised Ms McCoy.

3 Following the ADB's investigation into the complaints the President of the ADB referred the complaint against Mr Lever to the Administrative Decisions Tribunal (ADT) pursuant to section 93C of the Anti - Discrimination Act 1977 on or around 1st April 2008.

4 On the 14th of April 2008 Mr Lever lodged an application seeking amongst other things that Ms McCoy's complaint him be dismissed as frivolous vexatious, misconceived or lacking in substance. This application was heard by the Tribunal on 12 June 2008.

The complaint of sexual harassment, vilification and victimisation against Dairy Farmers and Mr Lever

5 Ms McCoy's letter of the 18th of May 2007 made a complaint that she had been sexually harassed and victimised subsequent to the making of her complaint of sexual harassment and further vilified as result of her complaint of sexual harassment while employed by Dairy Farmers.

The complaint of sexual harassment against Mr Lever

6 The complaint of sexual…

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: [2008] NSWADT 206
Decision Date: 1 August 2008

CaseChat Overview and Summary

The case of McCoy v Lever was heard in the Australian court and involved a complaint of sexual harassment and vilification against Mr Lever by Ms McCoy. The dispute centred on specific incidents including telephone calls and a visit to Ms McCoy's home during her absence from work, as well as broader allegations of vilification. The court was required to determine whether these complaints were frivolous, vexatious, misconceived, or lacking in substance, as per the relevant provisions of the Anti-Discrimination Act.

The primary legal issue before the court was to assess the validity of the complaints brought against Mr Lever by Ms McCoy. The court needed to determine if the complaints met the criteria for being dismissed as frivolous, vexatious, misconceived, or lacking in substance. This involved a careful analysis of the facts presented and the applicable legal standards set out in the Anti-Discrimination Act.

The court found that the complaint of sexual harassment relating to the telephone calls and the visit to Ms McCoy's home did not meet the required threshold for a valid complaint and was dismissed accordingly. Similarly, all complaints of vilification were also dismissed as they did not satisfy the criteria for being deemed valid. The court noted the withdrawal of the complaint regarding unidentified telephone calls to Ms McCoy's home in late July 2006. Costs were reserved for a later determination.

Orders

Orders of the court

1. The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy's home during Ms McCoy's absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA 2. All complaints of vilification against Mr Lever are dismissed pursuant to section 102 ADA 3. The withdrawal of the complaint in relation to unidentified telephone calls to Ms McCoy's home in late July 2006 is noted 4. Costs are reserved.

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:	McCoy v Lever [2008] NSWADT 206
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Donna McCoy RESPONDENT Mark Lever
FILE NUMBER:	081008
HEARING DATES:	12 June 2008
SUBMISSIONS CLOSED:	12 June 2008
DATE OF DECISION:	1 August 2008
BEFORE:	Scahill A - Judicial Member
CATCHWORDS:	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:	Dee v Commissioner of Police and Anor [2003] NSWADT 217 Ehl v Department of Education and Training and NSW Teachers Federation [1999] NSWADT 102 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	1. The complaint of sexual harassment against Mr Lever relating to telephone calls and the visit to Ms McCoy’s home during Ms McCoy’s absence from work referred to in paragraphs 21 to 28 is dismissed pursuant to section 102 of the ADA 2. All complaints of vilification against Mr Lever are dismissed pursuant to section 102 ADA 3. The withdrawal of the complaint in relation to unidentified telephone calls to Ms McCoy’s home in late July 2006 is noted 4. Costs are reserved.