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San v Dirluck Pty Ltd

San v Dirluck Pty Ltd

Case [2005] FMCA 750 9 June 2005

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAN v DIRLUCK PTY LTD & ANOR

[2005] FMCA 750

HUMAN RIGHTS – Sex and Race Discrimination in Employment – sexual harassment – whether the applicant was discriminated against by her employer and two other employees – whether senior staff failed to respond adequately to complaints made by the applicant – whether the applicant suffered isolation and hostility from colleagues – whether remarks made to the applicant by her employer and other employees were no more than casual banter between work people and could not be found to constitute ‘unwelcome conduct of a sexual nature’ so as to breach s.28A of the SDA or offensive conduct prohibited pursuant to s.18C of the RDA – whether alleged discriminatory words were said to the applicant because of her behaviour or because of her sex – whether the applicant was constructively dismissed.

HREOC Act 1986, s.46PO
Sex Discrimination Act 1984 (Cth), ss.5(1), 14(2), 28A & 28B, 106(1)
Racial Discrimination Act 1975 (Cth), ss.9(1), (2), 15(1)(b), (c), 18A(1)

Brigginshaw v Brigginshaw (1938) 60 CLR 336
Shiels v James [2000] FMCA 2
Horman v Distribution Group Ltd [2002] FCA 219
Jones v Dunkel (1959) 101 CLR 298
Hughes (formerly De Jager) v Car Buyers Pty Ltd (2004) EOC 93-344
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] 1650 FCA
Waters v Public Transport Corporation (1991) 173 CLR 349
Hall v Sheiban [1988-89] 85 ALR 503
Commonwealth v HREOC [2000] FCA 1150
Gilroy v Angelov [2000] FCA 1775
Commonwealth of Australia v Evans [2004] FCA 564
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
Rexlynne Nominees Pty Ltd v Last Frontier Picture Co Pty Ltd [1999] FCA 1380
Kelly v TPG Internet Pty Ltd (No 2) [2005] FMCA 291

Applicant:

VIOLET SAN

First Respondent:	DIRLUCK PTY LTD (TRADING AS JOE’S MEAT MARKET)
Second Respondent:	DEREK LAMB

File Number:

SYG 2881 of 2004

Judgment of:

Raphael FM

Hearing date:

9 & 10 May 2005

Date of Last Submission:

10 May 2005

Delivered at:

Sydney

Delivered on:

9 June 2005

REPRESENTATION

Counsel for the Applicant:

Ms M Tibbey

Solicitors for the Applicant:

Kingsford Legal Centre

Counsel for the Respondent:

Ms K Nomchong

Solicitors for the Respondent:

Moray & Agnew

ORDERS

The respondents to pay the applicant damages in the sum of $2,000.00 for breach of s.18C of the Racial Discrimination Act 1975 (Cth) and s.28B of the Sex Discrimination Act 1984 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2881 of 2004

VIOLET SAN

Applicant

And

DIRLUCK PTY LTD (TRADING AS JOE'S MEAT MARKET) DEREK LAMB

Respondent

REASONS FOR JUDGMENT

History

The applicant brings these proceedings against the respondents, her former employer and one of its managers respectively, pursuant to s.46PO of the Human Rights & Equal Opportunity Commission Act 1986

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 San v Dirluck Pty Ltd

Details

AGLC: San v Dirluck Pty Ltd [2005] FMCA 750
Case: [2005] FMCA 750
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the Federal Court, San initiated legal proceedings against Dirluck Pty Ltd, alleging that the company's conduct constituted a breach of anti-discrimination laws. Specifically, San claimed that the company's actions violated section 18C of the Racial Discrimination Act 1975 (Cth) and section 28B of the Sex Discrimination Act 1984 (Cth). The nature of the dispute centred on discriminatory practices in the workplace, which San argued had a detrimental impact on their employment conditions and opportunities.

The central legal issues before the court involved determining whether Dirluck Pty Ltd had indeed engaged in discriminatory practices and, if so, whether those actions breached the provisions of the Racial Discrimination Act and the Sex Discrimination Act. The court had to assess the evidence presented by both parties and interpret the relevant statutory provisions to ascertain whether the threshold for liability had been met.

After reviewing the evidence and the applicable legislation, the court found that Dirluck Pty Ltd had indeed engaged in conduct that breached the aforementioned sections of the Acts. The court concluded that the discriminatory actions taken by the company were unlawful and constituted a breach of the statutory provisions. Consequently, the court ordered Dirluck Pty Ltd to pay San damages in the sum of $2,000.00. This decision underscores the importance of compliance with anti-discrimination laws and the legal consequences that may arise from non-compliance.

Orders

Orders of the court

The respondents to pay the applicant damages in the sum of $2,000.00 for breach of s.18C of the Racial Discrimination Act 1975 (Cth) and s.28B of the Sex Discrimination Act 1984 (Cth).

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.

Citations

AGLC Citation

San v Dirluck Pty Ltd [2005] FMCA 750

Most Recent Citation

Evan-Ashley Solace v Mettler-Toledo Limited [2025] FWC 3070

Cases citing this decision · 5 of 5 shown

Evan-Ashley Solace v Mettler-Toledo Limited
[2025] FWC 3070

…[41] Magar [49] citing San v Dirluck Pty Ltd [2005] FMCA 750; 222 ALR 91; Taylor v August & Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1.…
Magar v Khan
[2025] FCA 874 Para 11

…xual conduct or expressly inform the person that the conduct is unwelcome before the conduct can be characterised as unwelcome: San v Dirluck Pty Ltd [2005] FMCA 750; 222 ALR 91 at [23] (Raphael FM). Similarly, as Katzmann J pointed out in Taylor v August & Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1 at [53] : … t…
Noble v Baldwin
[2011] FMCA 283

…Gama (2008) 167 FCR 537; [2008] FCAFC 69 Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 San v Dirluck Pty Ltd and Another (2005) 222 ALR 91; [2005] FMCA 750 Shiels v James [2000] FMCA 2 South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402; [2005] FCAFC 130 Toben v Jones (2003) 129 FCR 515; [2003…
Gama v Qantas Airways Ltd (No 2)
[2006] FMCA 1767 Para 6

…s asked for an apology. I have made it plain in previous decisions ( Rachael Evans v National Crime Authority [2003] FMCA 375 at [115]; San v Dirluck [2005] FMCA 750 at [49]; Phillips v Mandic [2005] FMCA 330 at [16]) that I believe that an apology is something which should come from the heart. I do not think it i…
Hewett v Davies & Anor
[2006] FMCA 1678 Para 15

…r intimidated: Elliot v Nanda [2001] FCA 418 as per Moore J at [108]-[109]; Aldridge v Booth (1988) 80 ALR 1 as per Spender J at [p.5]; San v Dirluck (2006) 222 ALR 91 at [32].…

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Cases cited in this decision · 15 of 15 shown

KELLY v TPG Internet Pty Ltd (No.2)
[2005] FMCA 291 Para 3

…eded in her claim although not all of her claims. The normal order would be that costs follow the event. I had in Kelly v TPG Internet Pty Ltd (No 2) [2005] FMCA 291indicated that it is not appropriate to fillet costs decisions so that the unsuccessful party obtains relief for the costs of that part of the hearing…
Rafiq v MIMIA
[2004] FCA 564 Para 1

…as Hall v Sheiban [1988-89] 85 ALR 503; Commonwealth v HREOC [2000] FCA 1150; Gilroy v Angelov [2000] FCA 1775 and Commonwealth of Australia v Evans [2004] FCA 564. The principle which can be distilled from those authorities is that damages should be assessed in a manner similar to those for personal injury so t…
Font v Paspaley Pearls & Ors
[2002] FMCA 142 Para 5

…remarks attributed to him by the applicant. I am satisfied that this form of “sexual banter” can constitute unwelcome conduct of a sexual nature: Font v Paspaley Pearls (2002) EOC 93-232 , Hughes (formerly De Jager) v Car Buyers Pty Ltd (2004) EOC 93-344. I also accept the evidence of Ms San that it was unwelcome. I do this bec…
Horman v Distribution Group Ltd
[2002] FCA 219 Para 2

…This statement was approved by Emmett J in an appeal from this court in Horman v Distribution Group Ltd [2002] FCA 219 . I have adopted this approach in connection with the evidence given in this case. I found that Ms San answered the questions put to her in cross examination carefully, with thought and considera…
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
[2001] HCA 63 Para 6

…he television, and notoriously, on the cinema screen. In the High Court decision Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, Gleeson J discussed the distinction between an activity that is done in private and one that is done in public. His Honour at 42 stated that in identifyin…
Gilroy v Angelov
[2000] FCA 1775 Para 1

…ed. There has been discussion on quantum in such cases as Hall v Sheiban [1988-89] 85 ALR 503; Commonwealth v HREOC [2000] FCA 1150; Gilroy v Angelov [2000] FCA 1775 and Commonwealth of Australia v Evans [2004] FCA 564. The principle which can be distilled from those authorities is that damages should be assessed…
Shiels v James
[2000] FMCA 2 Para 1

…roof is to the civil standard the dicta in Brigginshaw v Brigginshaw (1938) 60 CLR 336 applies. In the second case heard in this court Shiels v James [2000] FMCA 2 I set out the manner in which I would look at questions of fact. “[36] Tribunals and Courts of Law are frequently asked to decide which of two versio…
Commonwealth of Australia v Human Rights and Equal Opportunity Commission
[2000] FCA 1150 Para 1

…his type of activity must be limited. There has been discussion on quantum in such cases as Hall v Sheiban [1988-89] 85 ALR 503; Commonwealth v HREOC [2000] FCA 1150; Gilroy v Angelov [2000] FCA 1775 and Commonwealth of Australia v Evans [2004] FCA 564. The principle which can be distilled from those authorities i…
Rexlynne Nominees Pty Ltd v Last Frontier Picture Co Pty Ltd
[1999] FCA 1380 Para 6

…seful practical test of what is private.” Similar sentiments were expressed in Rexlynne Nominees Pty Ltd v Last Frontier Picture Co Pty Ltd [1999] FCA 1380, a case that discussed whether or not an injunction should be applied to prohibit publication of a video that was alleged to cause irreparable damage to the re…
Waters v Public Transport Corporation
[1992] HCA 9 Para 2

…ers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] 1650 FCA, Waters v Public Transport Corporation (1991) 173 CLR 349. But the discrimination must be on the grounds of sex. The applicant has not satisfied me that it was.…
Waters v Public Transport Corporation
[1991] HCA 49 Para 2

…td (1993) 46 FCR 301, Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] 1650 FCA, Waters v Public Transport Corporation (1991) 173 CLR 349. But the discrimination must be on the grounds of sex. The applicant has not satisfied me that it was.…
Australian Iron & Steel Pty Ltd v Banovic
[1989] HCA 56 Para 2

…behaviour and not because of her sex. An intention to discriminate is not required under the SDA: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, Macedonian Teachers Association of Victoria Inc v Human Rights & Equal…
Jones v Dunkel
[1959] HCA 9 Para 4

…nation as to why that occurred was given. I am entitled to infer that nothing he might have said would have been of any assistance to the respondent: Jones v Dunkel (1959) 101 CLR 298.…
Jones v Dunkel
[1959] HCA 8 Para 4

…y that occurred was given. I am entitled to infer that nothing he might have said would have been of any assistance to the respondent: Jones v Dunkel (1959) 101 CLR 298.…
Briginshaw v Briginshaw
[1938] HCA 34 Para 1

…s made in these proceedings lies on the applicant and that whilst the burden of proof is to the civil standard the dicta in Brigginshaw v Brigginshaw (1938) 60 CLR 336 applies. In the second case heard in this court Shiels v James [2000] FMCA 2 I set out the manner in which I would look at questions of fact. “[36] T…

Legislation cited in this decision · 5

Sex Discrimination Act 1984 (Cth)
14(2), 28A, 5(1) 7 mentions (from Para 1)
Racial Discrimination Act 1975 (Cth)
15(1)(b), 18A(1), 9(1) 4 mentions (from Para 1)
Copyright Act 1968 (Cth)
1 mention (from Para 1)
Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 1)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
1 mention (from Para 1)