Mt v AA - [2009] NSWADT 268

CITATION: MT v AA [2009] NSWADT 268
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
MT
FIRST RESPONDENT
AA
SECOND RESPONDENT
BB
THIRD RESPONDENT
CC

FILE NUMBER: 081100

HEARING DATES: 25 and 26 May 2009

SUBMISSIONS CLOSED: 4 September 2009

DATE OF DECISION:
15 October 2009

BEFORE: Chesterman M - Deputy President; Schneeweiss J - Non-Judicial Member ; Mooney L - Non-Judicial Member

CATCHWORDS: Anti-Discrimination Act 1977 – discrimination on grounds of disability – discrimination against employee – victimisation – aiding and abetting – vicarious liability

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

CASES CITED: Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3
IW v City of Perth (1997) 191 CLR 1
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales (2003) 217 CLR 92
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

REPRESENTATION:
APPLICANT
I Chatterjee, solicitor, and M Woodroofe, agent
FIRST RESPONDENT
A Franks, solicitor
SECOND and THIRD RESPONDENT
In person (at hearing); A Franks, solicitor (written submissions following hearing)

ORDERS: 1. The Applicants’ claim is dismissed as against all three Respondents
2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 In these proceedings, the Applicant claimed that during his employment at a hotel in a country town by the First Respondent, who owned the hotel, he was subjected to discrimination on the ground of disability and victimisation in breach of the Anti-Discrimination Act 1977 (‘the AD Act’) by the Second Respondent, who was the hotel’s manager. The most significant breach of which he complained was his being summarily dismissed by her. He also claimed that her son, the Third Respondent, had aided and abetted breaches of the AD Act by the Second Respondent and had victimised him.

2 The Applicant first complained of these matters to the Anti-Discrimination Board (‘the Board’) in a letter dated 16 December 2007. On 13 October 2008, the President of the Board referred the case to the Tribunal.

3 At the hearing, which took place at the Local Court at Wagga Wagga on 25 and 26 May 2009, the Applicant sought and obtained an order that the court should be closed and that in any public document relating to the proceedings he should be identified by a pseudonym. The grounds for this order were that publication of his identity, together with the fact that he was HIV+ (this being an essential component of his case against the Respondents), would…

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 Mt v AA

Details

AGLC: Mt v AA [2009] NSWADT 268
Case: [2009] NSWADT 268
Decision Date: 15 October 2009

CaseChat Overview and Summary

The applicants, Mt and another, sought a declaration that the employer, AA, had discriminated against Mt on the grounds of disability, in contravention of the Anti-Discrimination Act 1977. Mt alleged that AA had discriminated against her through victimisation, and that her co-workers had aided and abetted this discrimination. The respondents denied these claims. The dispute was heard in the Civil and Administrative Tribunal of New South Wales. The tribunal was required to determine whether Mt had been discriminated against on the basis of her disability, whether her co-workers had aided and abetted this discrimination, and whether AA could be held vicariously liable for the actions of its employees. The tribunal considered the evidence and submissions from both parties, as well as relevant case law and statutory provisions. It found that there was no evidence to support Mt's claims of discrimination or victimisation, and that her co-workers had not aided or abetted any discriminatory behaviour. The tribunal also held that AA could not be held vicariously liable for the actions of its employees in this case. Accordingly, the tribunal dismissed the applicants' claims against all three respondents. There will be no order for costs in these proceedings, unless a party files and serves an application for costs, with supporting submissions, within 21 days. If such an application is filed, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Orders

Orders of the court

1. The Applicants’ claim is dismissed as against all three Respondents

2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	MT v AA [2009] NSWADT 268 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT MT FIRST RESPONDENT AA SECOND RESPONDENT BB THIRD RESPONDENT CC
FILE NUMBER:	081100
HEARING DATES:	25 and 26 May 2009
SUBMISSIONS CLOSED:	4 September 2009
DATE OF DECISION:	15 October 2009
BEFORE:	Chesterman M - Deputy President; Schneeweiss J - Non-Judicial Member ; Mooney L - Non-Judicial Member
CATCHWORDS:	Anti-Discrimination Act 1977 – discrimination on grounds of disability – discrimination against employee – victimisation – aiding and abetting – vicarious liability
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 IW v City of Perth (1997) 191 CLR 1 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales (2003) 217 CLR 92 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT I Chatterjee, solicitor, and M Woodroofe, agent FIRST RESPONDENT A Franks, solicitor SECOND and THIRD RESPONDENT In person (at hearing); A Franks, solicitor (written submissions following hearing)
ORDERS:	1. The Applicants’ claim is dismissed as against all three Respondents 2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.