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Shellharbour Golf Club v Wheeler

Shellharbour Golf Club v Wheeler

Case [1999] NSWSC 224 24 March 1999

Unconscionable Conduct

Statutory Construction

Anti-Discrimination Law

Statutory Interpretation

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Reported Decision: 46 NSWLR 253

New South Wales

Supreme Court

CITATION: Shellharbour Golf Club v Wheeler [1999] NSWSC 224

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): 30023/98

HEARING DATE(S): 11 March 1999

JUDGMENT DATE:
24 March 1999

PARTIES :

Shellharbour Golf Club Limited (Appellant)
Lynne Isabel Wheeler (1st Respondent)
James Gough (Second Respondent)
Delmar Veronica Jeffrey (Third Respondent)
Equal Opportunity Tribunal (Fourth Respondent)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Equal Opportunity Tribunal

LOWER COURT FILE NUMBER(S) : 85/95

LOWER COURT JUDICIAL OFFICER: P. Goode, M. Alt, D. McNeill

COUNSEL : I.M. Neil (Appellant)
S. Winters (1st Respondent)
Submitting appearance (2nd Respondent)
Submitting appearance (3rd Respondent)
Submitting appearance (4th Respondent)

SOLICITORS: Russell McClelland Brown (Appellant)
Redfern Legal Centre (1st Respondent)
Leo & Morrison (2nd Respondent)
Maguire & McInerney (3rd Respondent)
I.V. Knight (4th Respondent)

CATCHWORDS: Sex Discrimination; liability of principal for conduct of agent; liability of incorporated golf club for conduct of its president; whether statute imposed onus on principal to prove conduct not authorised by it; whether findings of Equal Opportunity Tribunal involved error of law; Statutory construction; Anti-Discrimination Act, 1977, s 53(1)

ACTS CITED: Anti-Discrimination Act
Commonwealth Sex-Discrimination Act
Interpretation Act

CASES CITED: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Canadian Pacific Railway Co. v Lockhart [1942] AC 591
Deatons Pty Limited v Flew (1949) 79 CLR 370
Ex parte Johnson; re MacMillan 47 SR 16
Haines v Leves (1987) 8 NSWLR 442
Langley v University of New South Wales (1984) EOC 902-018
Samuels Real Estate v Lamb & Anor (1998) EOC 92-923
University of New South Wales v Moorhouse (1974-75) 133 CLR 1
Waters v The Public Transport Commission (1991-92) 173 CLR 349

DECISION: Summons dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION
STUDDERT J
Wednesday 24 March 1999
030023/98 SHELLHARBOUR GOLF CLUB LIMITED v LYNNE ISABEL WHEELER & ORS
JUDGMENT
1 HIS HONOUR : This is an appeal from the decision of the Equal Opportunity Tribunal. The Tribunal entertained a complaint of sexual harassment against the appellant Shellharbour Golf Club Limited and the former president of that club. By its decision delivered on 13 May 1997 the Tribunal found the complaint to have been established and that the club and its former president were jointly and severally liable. Both were ordered to pay damages to the complainant in the sum of $15,500 and legal costs in the sum of $4757.65.
2 The appeal is brought by the Shellharbour Golf Club Limited. The Tribunal and the former president, to whom I shall refer as the “second respondent”, each filed submitting appearances before this Court.
3 Under s 118 of the Anti-Discrimination Act, 1977 appeal lies to this Court on a question of law only, and this Court cannot correct errors of fact: see Haines v Leves (1987) 8 NSWLR 442 and the judgment of Kirby P at 469-470.
The nature of the complaint before the Tribunal
4 The complaint before the Tribunal was directed at sexual harassment. The…

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 Shellharbour Golf Club v Wheeler

Details

AGLC: Shellharbour Golf Club v Wheeler [1999] NSWSC 224
Case: [1999] NSWSC 224
Decision Date: 24 March 1999

CaseChat Overview and Summary

In this case, the plaintiff, Shellharbour Golf Club, brought an action against the defendant, Wheeler, alleging discrimination. The dispute centred on the actions of the club's president, who had made allegedly discriminatory comments to Wheeler. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought a declaration that the club was not liable for the comments made by its president, and that the president's conduct was not authorised by the club.

The legal issues before the court were whether the statute imposed an onus on the club to prove that the president's conduct was not authorised by it, and whether the findings of the Equal Opportunity Tribunal involved an error of law. The court had to determine the proper construction of section 53(1) of the Anti-Discrimination Act 1977 (NSW), which provided that an employer was not liable for the discriminatory conduct of an employee if the employer could prove that the conduct was not authorised by the employer.

The court held that the onus was on the club to prove that the president's conduct was not authorised by it. The court found that the findings of the Equal Opportunity Tribunal did not involve an error of law, as the tribunal had correctly applied the principles of statutory construction. The court held that the president's conduct was authorised by the club, and that the club was therefore liable for the discriminatory comments made. The court ordered the club to pay damages to Wheeler.

Orders