CITATION: Nelson v Pelikan Artline Pty Ltd [2009] NSWADT 272 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Sandra Lea Nelson
Pelikan Artline Pty LimitedFILE NUMBER: 081137 HEARING DATES: 13 July 2009 SUBMISSIONS CLOSED: 21 August 2009
DATE OF DECISION:
23 October 2009BEFORE: Furness G - Judicial Member CATCHWORDS: Deed of release - duress LEGISLATION CITED: Conveyancing Act 1919
Administrative Decisions Tribunal Act 1997
Anti Discrimination Act 1977CASES CITED: Australian & New Zealand Banking Group ats Karam & Ors [2005] NSWCA 344
Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Limited & Ors [2003] HCA 18
Baker v National Distribution Services Limited [1993] 50 IR 254
Bloomingdale Holdings Pty Limited ats 63 Buckley Street Pty Limited [2008] VSC 168
Bridgewater & Ors ats Leahy & Ors [1998] HCA 66
Caltex Oil (Australia) Pty Limited v Best (1990) 170 CLR 516
Carney v Herbert [1985] AC 301
Concrete Constructions (NSW) Pty Limited ats Nelson [1990] HCA 17
David Jones v Australian Workers Union; re Levett (1978) AR 206
Ekerawi v Administrative Decisions Tribunal (NSW) [2009] NSWSC 143
Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Grant v John Grant & Sons Pty Limited (1954) 91 CLR 112
Han v NSW Department of Health [2006] NSWADT 113
Humphries v Proprietors “Surfers Palms North” Group Titles Plan (1994) 179 CLR 597
Hurley v McDonalds Australia Limited (2000) ATPR 41,741
Hurst v Star City Pty Ltd [2009] NSWADT 65
Pittorino v Meynert (as Executrix) of the wills of Guiseppe Pittorino (dec) and Jessipina Pittorino (dec) and Ors [2002] WASC 76
London and South Western Railway Co v Blackmore (1870) LR4 HL610
McFarlane v Daniel (1938) 38 SR (NSW) 337
Oceanic Sun Line Shipping Co Inc ats Fay (1988) 165 CLR 197
Qantas Airways v Gubbins (1992) 28 NSWLR 26
Roseman No2 v United Blended Fabrics [2000] NSWADT 152
Rothmans Distribution Services Limited v Court of the Industrial Court of NSW [1994] 53 IR 157
Sydney City Council v West (1965) 114 CLR 481
The Commercial Bank of Australia Limited v Amadio & Anor [1983] HCA 14
Thomas Brown & Sons Limited v Fazal Deen (1962) 108 CLR 391
Toll v (FGCT) Pty Ltd v Alphapharm Pty Limited (2004) 219 CLR 165
Tozer Kemsley & Millbourn (Australasia) Pty Ltd v Collier’s Interstate Transport Services Limited (1956) 94 CLR 384
Tunbridge v Linde Material Handling Pty Limited (1997) IR 115
Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) IAC 366
Watson v Oxman 49 NSWLR 315REPRESENTATION: APPLICANT
RESPONDENT
L Goodchild, Barrister
H Sonmez, BarristerORDERS: 1. The Tribunal finds that the contract is voidable and therefore is, at the election of the applicant, not a bar to a claim for unlawful discrimination being made and determined
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 28 days. In such event, the opposing party or parties must file and serve…
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Details
- Case
- [2009] NSWADT 272
- Decision Date
CaseChat Overview and Summary
Nelson brought proceedings against Pelikan Artline Pty Ltd in the Administrative Appeals Tribunal, alleging unlawful discrimination under the Anti-Discrimination Act 1977. Pelikan argued that the proceedings were barred by a deed of release executed by Nelson, which purported to release all claims arising from the termination of employment. Nelson claimed the deed was executed under duress and therefore void.
The Tribunal had to determine whether the deed was executed under duress, rendering it void, and if so, whether this would allow Nelson to proceed with their discrimination claims. The central issue was the effect of duress on the enforceability of the deed of release, and whether the doctrine of duress could be invoked to set aside the deed in these circumstances.
The Tribunal found that Nelson had discharged the onus of proving that the deed was executed under duress. It was held that Pelikan had engaged in conduct that amounted to economic duress, including the imposition of an unrealistic deadline and threats of further adverse consequences if Nelson did not sign the release. This conduct left Nelson with no realistic alternative but to sign the deed. Given the established principle that duress vitiates a contract, the Tribunal concluded that the deed was voidable at Nelson's election. Consequently, the deed did not bar Nelson's claim for unlawful discrimination.
The Tribunal ordered that the deed of release was voidable and could be disregarded in the determination of the discrimination claims. No order was made for costs, except in the event that a party applied for costs within the specified timeframe, in which case the matter would be determined on the papers.
The Tribunal had to determine whether the deed was executed under duress, rendering it void, and if so, whether this would allow Nelson to proceed with their discrimination claims. The central issue was the effect of duress on the enforceability of the deed of release, and whether the doctrine of duress could be invoked to set aside the deed in these circumstances.
The Tribunal found that Nelson had discharged the onus of proving that the deed was executed under duress. It was held that Pelikan had engaged in conduct that amounted to economic duress, including the imposition of an unrealistic deadline and threats of further adverse consequences if Nelson did not sign the release. This conduct left Nelson with no realistic alternative but to sign the deed. Given the established principle that duress vitiates a contract, the Tribunal concluded that the deed was voidable at Nelson's election. Consequently, the deed did not bar Nelson's claim for unlawful discrimination.
The Tribunal ordered that the deed of release was voidable and could be disregarded in the determination of the discrimination claims. No order was made for costs, except in the event that a party applied for costs within the specified timeframe, in which case the matter would be determined on the papers.
Orders
Orders of the court
1. The Tribunal finds that the contract is voidable and therefore is, at the election of the applicant, not a bar to a claim for unlawful discrimination being made and determined
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 28 days. In such event, the opposing party or parties must file and serve submissions in response within a further 28 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
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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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