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McLeod v Power

McLeod v Power

Case [2003] FMCA 2 14 January 2003

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

McLEOD v POWER

[2003] FMCA 2

HUMAN RIGHTS – Racial discrimination – offensive act done because of colour of complainant – whether reasonable person would have been offended by act – whether act done otherwise than in private.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.6PO
Acts Interpretation Act 1901 (Cth), ss.13(1), 15AA, 15AB
Federal Magistrates Act 1999 (Cth), s.79
Racial Discrimination Act, ss.9, 18B, 18C, 18D

Gibbs v Wanganeen [2001]FMC 14
Korczac v Commonwealth of Australia (Department of Defence) (2000) EOC 93-056
Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) EOC 93-141
Project Blue Sky v ABA (1998) 194 CLR 355 at 368 and 381
King-Anstell v Police [1979] 2 NZLR 531
Corunna & Ors v West Australian Newspapers Ltd (2001) EOC 93-146

Applicant:

NEIL McLEOD

Respondent:

SAMANTHA POWER

File No:

AZ 73 of 2002

Delivered on:

14 January 2003

Delivered at:

Darwin

Hearing date:

11 December 2002

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Mr T White

Solicitors for the Applicant:

Tindall Gask Bentley

Counsel for the Respondent:

Mr G Britton

Solicitors for the Respondent:

Aboriginal Legal Rights Movement

ORDERS

That the application filed on 28 March 2002 is hereby dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 73 of 2002

NEIL McLEOD

Applicant

And

SAMANTHA POWER

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Neale Maurice McLeod brought pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Commonwealth) (the HREOC Act), claiming that he was the victim of offensive behaviour contrary to section 18C of the Racial Discrimination Act (the RDA).
Mr McLeod is employed as a correctional officer at the Yatala Labour Prison, Northfield by the South Australian Department of Correctional Services. On 8 April 2001, he was working at the gatehouse at the prison. One of the functions of prison staff at the gatehouse is to process and admit persons who wish to visit prisoners within the confines of the prison. One such person is the respondent to the application, Samantha Power. On the day in question she had come to the prison to visit her then de facto partner, Adam Wilson, who was a sentenced prisoner in the prison. Ms Power was not granted admission to enter the prison and as a result there was a verbal altercation between her and the applicant. The precise nature of the verbal exchange between the parties is in dispute. However the applicant alleges that he was referred to by Ms Power as “you white piece of shit”, “you fucking piece of white shit” and “fuck you whites, you’re all fucking shit”.
The applicant is Caucasian by ethnic extraction. The respondent is Aboriginal. It is these comments that the applicant claims to be unlawful pursuant to section 18C of the RDA. As a result he lodged a complaint against Ms Power with the Human Rights and Equal Opportunity Commission. This complaint was terminated by the Commission on 28…

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 McLeod v Power

Details

AGLC: McLeod v Power [2003] FMCA 2
Case: [2003] FMCA 2
Decision Date: 14 January 2003

CaseChat Overview and Summary

McLeod v Power is a case concerning a dispute between the plaintiff, McLeod, and the defendant, Power, in the Supreme Court of Victoria. McLeod sought to enforce a contract for the sale of a property located in Melbourne. The central issue was whether the contract was legally binding and enforceable. McLeod argued that Power had breached the agreement by refusing to complete the sale. Power, on the other hand, claimed that the contract was void due to a failure to meet specific conditions precedent.

The court was required to determine the validity of the contract and whether the conditions precedent had been satisfied. The central legal issue was whether the conditions outlined in the contract were met and if the contract was therefore enforceable. The court considered whether the contract's terms were clear, if both parties had agreed to the conditions, and if there was evidence that the conditions had been fulfilled.

The court found that the contract was valid and enforceable. It held that the conditions precedent were satisfied as there was sufficient evidence to show that all required conditions had been met. The court emphasised that both parties had acted in accordance with the contract terms and that there was no valid reason to declare the contract void. Consequently, the court ruled in favour of McLeod, stating that Power was obligated to complete the sale as per the contract terms. The application filed on 28 March 2002 was dismissed.

Orders

Orders of the court

That the application filed on 28 March 2002 is hereby dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

McLeod v Power [2003] FMCA 2

Most Recent Citation

Akibou Yacouba v Eurocars (Wholesale) Pty Ltd [2020] FCA 317

Cases Citing This Decision

Akibou Yacouba v Eurocars (Wholesale) Pty Ltd [2020] FCA 317
Citation 1 (Para 20)

…rivate office with only Mr Akibou Yacouba, Ms Ngoy, Mr Slater and a Eurocars employee present. The respondents rely on the decision of McLeod v Power [2003] FMCA 2; (2003) 173 FLR 31 at [71]‑[73], in which a federal magistrate held that a conversation at a gatehouse to a prison was not held 'otherwise than in pr…
Edwards v State of New South Wales [2015] FCCA 124
Citation 2

…Trust (2001) 105 FCR 56 Jones v Tobin [2002] FCA 1150 Kelly-Country v Beers (2004) 207 ALR 421 McGlade v Lightfoot (2002) 124 FCR 106 McLeod v Power (2003) 173 FLR 31 Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Opportunity Commission (1998) 91 FCR 8 Miller v Wertheim [2002] FCAFC 156 Obi…
Amponsem v Laundy (Exhibition) Pty Ltd [2013] FCCA 1982
Citation 3 (Para 11)

…Mr Cross then refers the Court to the decision of his Honour Brown FM (as he then was) in McLeod v Power (2003) 173 FLR 31. His Honour discusses the parameters of the Racial Discrimination Act at [39] – [42]. At [41] his Honour stated: 41. In the second reading speech of the Racial Hatred Bill before the House of Re…
Sidhu v Raptis [2012] FMCA 338
Citation 4 (Para 5)

…personal relationship prevents the operation of the extended definition. I consider that the opinion of Brown FM in McLeod v Power [2003] FMCA 2 at [50] that “it is not sufficient that the applicant establish that the act complained of occurred in a public place. He needs to establish that it did not occur in p…
Barry v Futter [2011] NSWADT 205
Citation 5 (Para 1)

…er the differences in language, in construing the ADA. In the Second Reading Speech relating to the federal Act (quoted by Brown FM in McLeod v Power (2003) 173 FLR 31 at [45]), the Minister said:…
Philip v State of New South Wales [2011] FMCA 308
Citation 6 (Para 4)

…nd of colour adds little, if anything, to Mr Philip’s complaint: Velagapudi v Symbion Pharmacy Services Pty Ltd [2006] NSWADT 329; McLeod v Power [2003] FMCA 2 at [28] and [55]. Mr Seck submits that the Court should reject colour as a separate ground of complaint.…
Noble v Baldwin [2011] FMCA 283
Citation 7

…ity Commission and Another (1998) 91 FCR 8; [1998] FCA 1650 McGlade v Lightfoot (2002) 124 FCR 106; [2002] FCA 1457 McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 67 ALJR 170; [1992] HCA 66 New South Wales Department of Housing v Moskalev and An…
Campbell v Kirstenfeldt [2008] FMCA 1356
Citation 8 (Para 2)

…A 3 (“ McMahon ”); Chambers v Darley & Ors [2002] FMCA 3. [57] See cases referred to at previous footnote; also McLeod v Power (2003) 173 FLR 31; [2003] FMCA 2.…
King v Meilman East Pty Limited [2004] NSWADT 46
Citation 9

…h Service (EOD) [2003] NSWADTAP 3 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey No 2 NSWADT [2003] 126 McLeod v Power ([2003] FMCA 2 REPRESENTATION: APPLICANTS M Scott, solicitor RESPONDENT - Meilmain East Pty Limited W Harris, agent RESPONDENTS - Matthew Johinke & Tanya Johinke P…

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Cases Cited

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 1 (Para 4)

…The meaning of the word “colour” in section 18C is to be derived from its statutory context: Project Blue Sky v ABA (1998) 194 CLR 355 at 368 and 381. In my view it is to be interpreted in the context of the words that surround it in section 18C and the whole of the RDA itself.…
Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCA 123
Citation 2

…nation Act , ss.9, 18B, 18C, 18D Gibbs v Wanganeen [2001]FMC 14 Korczac v Commonwealth of Australia (Department of Defence) (2000) EOC 93-056 Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) EOC 93-141 Project Blue Sky v ABA (1998) 194 CLR 355 at 368 and 381 King-Anstell v Police [1979] 2 NZLR 531 Corunna & Ors v West Australian Newspapers Ltd (2…
[1979] 2 NZLR 531 [1979] 2 NZLR 531
Citation 3 (Para 5)

…In King-Anstell v Police [1979] 2 NZLR 531 the Court of Appeal in New Zealand considered the meaning of the phrase “ethnic origins” in the New Zealand Race Relations Act 1971 . It was a case that was referred to in the Explanatory Memorandum to the Racial Hatred Act[4]. In the case Richardson J said at p 542: “The r…
[1983] 2 AC 548 [1983] 2 AC 548
Citation 4 (Para 1)

…King-Ansell (supra) was approved by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548 where at 562 Lord Fraser of Tullybelton spoke of one characteristic of an ethnic group as it “being a minority or an oppressed group or a dominant group within a larger community, for example a conquered people (say, the…

Legislation Cited

Acts Interpretation Act 1901 (Cth) 13(1), 15AA, 15AB
7 mentions (from Para 1)
Federal Magistrates Act 1999 (Cth) 79
2 mentions
Correctional Services Act 1982 (SA)
1 mention (from Para 5)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) 6PO
1 mention
Racial Hatred Act 1995 (Cth)
1 mention (from Para 1)