Mitchell v Clayton Utz and Ors (No 2)[ - [2010] NSWADT 59

CITATION: Mitchell v Clayton Utz and Ors (No 2)[ [2010] NSWADT 59

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Michael Mitchell
RESPONDENTS:
Clayton Utz
Garth Williams
Jamie Taylor
Sonia Goumenis
Katie Best
Trevor Robinson
Joseph Catanzariti
Narelle Rutz

FILE NUMBER: 091046

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27 January 2010

DATE OF DECISION:
26 February 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application to correct decision - inconsistency between decision and statement of reasons - Administrative Decisions Tribunal Act 1997 s 87

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

CASES CITED: Mitchell v Clayton Utz & Ors [2009] NSWADT 266

REPRESENTATION:
APPLICANT
In person
RESPONDENT
M Byrnes, solicitor

ORDERS: The following order of the Tribunal, made on 13 October 2009 is corrected by adding the words in italics:Leave is granted for the following complaints or parts of complaints to proceed:c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for (i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature; (ii)the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'

REASONS FOR DECISION

Introduction

1 On 13 October 2009, the Tribunal granted Mr Mitchell leave to proceed with parts of his complaint of discrimination against Clayton Utz and two employees, Mr Williams and Mr Taylor: Mitchell v Clayton Utz & Ors [2009] NSWADT 266 (13 October 2009). Because of an alleged inconsistency between the Tribunal’s reasoning and the orders made, Mr Mitchell has applied for one of the orders to be ‘corrected’: Administrative Decisions Tribunal Act 1997 (ADT Act) s 87. Clayton Utz opposes that application saying that the order does not contain an omission or, alternatively, the correction Mr Mitchell seeks is not consistent with the Tribunal’s reasoning. The issue has been determined ‘on the papers’: ADT Act, s 76.

Power to correct decisions

2 Section s 87 allows the Tribunal to correct certain errors in decisions:

Power to correct decisions of the Tribunal
(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.
(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.
(3) Examples of obvious errors in the text of a decision or statement of reasons are where:
(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or
(b) there is an…

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: [2010] NSWADT 59
Decision Date: 26 February 2010

CaseChat Overview and Summary

The application for correction of a decision by the Administrative Appeals Tribunal (AAT) was brought before the court by Mitchell, who had previously lodged complaints against Williams, Taylor, and Clayton Utz. The nature of the dispute involved allegations of sexual harassment against Williams, Taylor, and their employer, Clayton Utz. The case was heard by the Federal Court of Australia, which was asked to consider whether the AAT's decision was inconsistent with its accompanying statement of reasons.

The legal issue before the court was whether the AAT had made an error in its decision, specifically whether there was an inconsistency between the decision and the statement of reasons. The court was required to examine the AAT's decision to determine if it was consistent with the reasons provided and whether any such inconsistency warranted a correction under section 87 of the Administrative Decisions Tribunal Act 1997.

In its decision, the court found that there was indeed an inconsistency between the AAT's decision and the accompanying reasons. The court identified that the AAT had granted leave for certain complaints to proceed, but had not explicitly excluded the allegations concerning the use of the term "trench" or "trench coat" unless accompanied by conduct of a sexual nature, and the comment made by Williams regarding solicitors taking paralegals home for sex. The court determined that this omission was a material error that needed to be rectified. As a result, the court granted the application to correct the decision by adding the specified exclusions to the AAT's decision, thereby aligning the decision with the reasons provided.

The final orders of the court were to correct the AAT's decision by adding the specified exclusions to the leave granted for the complaints to proceed. This correction ensured that the decision reflected the reasons given by the AAT, thereby providing clarity and consistency in the tribunal's ruling.

Orders

Orders of the court

The following order of the Tribunal, made on 13 October 2009 is corrected by adding the words in italics:Leave is granted for the following complaints or parts of complaints to proceed:c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for (i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature; (ii)the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'

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:	Mitchell v Clayton Utz and Ors (No 2)[ [2010] NSWADT 59
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Michael Mitchell RESPONDENTS: Clayton Utz Garth Williams Jamie Taylor Sonia Goumenis Katie Best Trevor Robinson Joseph Catanzariti Narelle Rutz
FILE NUMBER:	091046
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	27 January 2010
DATE OF DECISION:	26 February 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application to correct decision - inconsistency between decision and statement of reasons - Administrative Decisions Tribunal Act 1997 s 87
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1977 Anti-Discrimination Act 1977
CASES CITED:	Mitchell v Clayton Utz & Ors [2009] NSWADT 266
REPRESENTATION:	APPLICANT In person RESPONDENT M Byrnes, solicitor
ORDERS:	The following order of the Tribunal, made on 13 October 2009 is corrected by adding the words in italics:Leave is granted for the following complaints or parts of complaints to proceed:c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for (i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature; (ii)the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'