Nunan v Aaction Traffic Services Pty Ltd - [2013] QCAT 565

CITATION:

Nunan v Aaction Traffic Services Pty Ltd
[2013] QCAT 565

PARTIES:	Dominique Mary Nunan (Applicant)
v
Aaction Traffic Services Pty Ltd (First Respondent) Devine Constructions Pty Ltd (Second Respondent) Michael Hotson (Third Respondent)

APPLICATION NUMBER:

ADL069-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

29 July 2013

HEARD AT:

Brisbane

DECISION OF:

Jeremy Gordon, Member

DELIVERED ON:

14 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. On a preliminary issue whether the Deeds of Release made between the Applicant and the First and Second Respondents have also released the Third Respondent from liability for sexual harassment because his liability is joint and several with those Respondents, the answer is in the negative.

2. The Third Respondent did sexually harass the Applicant and is ordered to pay to her compensation in the sum of $102,217 except that the sum recoverable under this order is limited to the amount by which that sum exceeds any amount already paid to the Applicant by the First and Second Respondents.

3. The Third Respondent has permission to apply to the tribunal to amend the amount of compensation he is ordered to pay to take account of any payment made by WorkCover to the Applicant for permanent impairment.

4. The Applicant is to inform the Third Respondent of the amount of any payment for permanent impairment made by WorkCover immediately upon its receipt.

5. The publication of the contents of the Deeds of Release and the contents of the agreements reached between the Applicant and the First and Second Respondents and produced to the tribunal is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

ANTI-DISCRIMINATION - SEXUAL HARASSMENT– three respondents with joint and several liability – release of first two respondents by applicant – whether applicant can pursue the third respondent having released the others – whether tribunal may look at confidential deeds of release – whether non-publication order should be made - whether sexual harassment – correct quantum of award – correct form of order

Anti-Discrimination Act 1991 (Qld) ss 119, 133, 209
Law Reform Act 1995 (Qld) s 6
Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Qld repealed)
Queensland Civil and Administrative Tribunal Act 2009 ss 66, 74, 230

Ritson v Commissioner of Police, NSW Police Force [2013] NSWADT 148
National Roads and Motorists Association v Whitlam [2007] NWSCA 81
King v Hoare (1844) 13 M & W 494
Commissioner of Police v Estate of Edward John Russell & Ors [2002] NSWCA 272
Mount Isa Mines Limited, Joe Kirvensniemi, Darryl Jameson, Chris Ahern, Percy Elliot v Narelle Marie Hopper [1998] QSC 287
Hall v Sheiban (1989) 20 FCR 217
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Barney v State Of Queensland and Anor [2012] QCAT 695
State of Queensland & Anor v Barney [2013] QCATA 104
KW v BG Limited, DP & DF [2009] QADT 7
Poniatowska v…

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: [2013] QCAT 565
Decision Date

CaseChat Overview and Summary

This sexual harassment claim was brought against three respondents, two of whom have been released from liability by the applicant. The third respondent argued that he should also be released. If the claim could proceed, there were issues as to whether there was sexual harassment and if so, the correct order to be made. The Tribunal concluded that the release of two of the respondents who were jointly and severally liable for the alleged acts, did not also release the third respondent from liability. The Tribunal found that the third respondent had sexually harassed the applicant and ordered him to pay compensation in the sum of $102,217. The Tribunal also prohibited the publication of the Deeds of Release and other agreements reached between the applicant and the first and second respondents. The Tribunal found that the release of two of the respondents who were jointly and severally liable for the alleged acts, did not also release the third respondent from liability. The Tribunal found that the third respondent had sexually harassed the applicant and ordered him to pay compensation in the sum of $102,217.

Orders