Pinecot Pty Ltd v Anti-Discrimination Commissioner - [2001] NTSC 107

Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107
PARTIES:PINECOT PTY LTD

v
ANTI-DISCRIMINATION COMMISSIONER

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 65 of 2000 (20018323)
DELIVERED:  30 November 2001
HEARING DATES:  22 October 2001
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Appellant:N Green QC and T Angelopoulos
Respondents:  C McDonald QC
Solicitors:
Appellant:Povey Stirk
Respondents:  John McBride
Judgment category classification:    A
Judgment ID Number:
Number of pages:  33

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
No 65 of 2000 (20018323)
Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107

BETWEEN:
PINECOT PTY LTD

Plaintiff
AND:
ANTI-DISCRIMINATION COMMISSIONER

Defendant

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 30 November 2001)
MILDREN J:

In November 1998 a complaint was made by one SG to the defendant pursuant to Part 6 of the Anti-Discrimination Act (NT). The complaint was lodged against the plaintiff and its employee, one M. After the complaint had been accepted by the defendant, it was investigated and ultimately referred for hearing. At the request of the parties, the defendant directed that the issue of whether or not the plaintiff can be held vicariously liable for an alleged contravention of the Act by M be determined prior to a full hearing of the complaint under s83 of the Act. It was agreed that at all times M was an employee of the plaintiff and that the plaintiff was a corporate body. Otherwise no other facts were found by the defendant. However, it is apparent from the written submissions made to the defendant on behalf of SG that her complaint was one of sexual harassment by M at the plaintiff's workplace and that M was not "an embodiment of the company" within the meaning of Tesco Supermarkets Ltd v Nattrass [1972] AC 153; nor was he the "mind or will" of the plaintiff: see H L Bolton (Engineering) Co Ltd v T J Graham and Son Ltd (1957) 1 QB 159. The submission nevertheless was that the plaintiff was liable for the acts of M because of the provisions of 27(2) of the Act; alternatively, because the plaintiff was vicariously liable for M's conduct.
After hearing submissions from the parties, including counsel instructed to assist the commissioner, the defendant delivered a very comprehensive written decision in which he held that the plaintiff would not be liable under s27(2) of the Act. This part of the defendant's decision assumed that the plaintiff had not put in place safeguards or systems at the workplace designed to prevent sexual harassment or other prohibited behaviour. In submissions to the commission, counsel for SG conceded that there was no evidence and it was not contended that the plaintiff had instructed, induced, incited or provoked M to contravene the Act, but it was put that the plaintiff had caused or assisted the alleged contravention by
...failing to put in place proper and reasonable systems and safeguards to…

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: [2001] NTSC 107
Decision Date: 30 November 2001

CaseChat Overview and Summary

In Pinecot Pty Ltd v Anti-Discrimination Commissioner, the Supreme Court of the Northern Territory dealt with a dispute over whether an employer could be held vicariously liable for an employee's actions that allegedly contravened the Anti-Discrimination Act. The Anti-Discrimination Commissioner had ruled that Pinecot Pty Ltd could be held vicariously liable for the alleged sexual harassment by its employee, David Mudge. The case involved the interpretation of the Act, particularly whether it imposed vicarious liability on employers for their employees' prohibited conduct. The court considered various legal principles and authorities on vicarious liability, statutory interpretation, and the nature of the remedies provided under the Act. After a detailed analysis of the statutory language, the court concluded that the Act did not create an active duty on employers to prevent prohibited conduct or impose vicarious liability for their employees' actions. The court found that the Commissioner had erred in his interpretation of the Act and granted the plaintiff, Pinecot Pty Ltd, the relief it sought, including a declaration that employers cannot be held vicariously liable for their employees' actions under the Act, and an order prohibiting the Commissioner from further hearing the complaint on the basis of vicarious liability.

Orders