Shiels v James

[2000] FMCA 2

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

Registry:

Sydney

Applicant

Donna Marie Shiels

Respondent 1:

Trevor Leighton James

Respondent 2:

Lipman Pty Limited

File No:

SZ3/2000

Hearing Dates:

31 August, 1, 4 September 2000

Date of Decision:

13 September 2000

Before:

Kenneth Raphael FM

Primary Legislation:

Sex Discrimination Act 1984, ss5, 14, 16(d), 28A & 28B. Human Rights and Equal Opportunity Commission Act 1986 s46PO

Application:

Discrimination in employment on grounds of sexual harassment

Matter for Decision:

Principal Matter

REPRESENTION

Applicant:

Ms Diana Stewart instructed by Messrs Higgins & Higgins, Solicitors

Respondents:

Ms Katherine Eastman instructed by Messrs Cowley Hearne, Solicitors

ORDERS:

1.   Respondents to pay the Applicant $17,000.00

2.   Respondents to pay the Applicant’s costs.

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY
No SZ3/2000

BETWEEN:

DONNA MARIE SHIELS
Applicant

and

TREVOR LEIGHTON JAMES
First Respondent

LIPMAN PTY LIMITED
Second Respondent

REASONS FOR JUDGMENT

What is the nature of the dispute?

1This application is brought by Donna Marie Shiels against Trevor Leighton James and Lipman Pty Limited pursuant to s.46PO of the Human Rights and Equal Opportunity Act 1986 (Cwth) [HREOC Act] claiming that she was the subject of sexual harassment contrary to s.28B (6) of the Sex Discrimination Act 1984 (Cwth) [SDA]. 

2The Applicant also alleged discrimination under s.16(d) of SDA which deals with discrimination against contract workers and that the corporate Respondent was liable under this section and under s.106 of the SDA for the actions of its employees and Mr James.

3The proceedings when originally commenced, included as a Respondent Anthony Michael Wood.  However, on the first day of the hearing it was submitted by Counsel for the Respondents that whilst the original complaint had included an allegation against Mr Wood, this allegation had been withdrawn by a letter from the Applicant’s solicitors, Messrs Higgins & Higgins, to HREOC dated 2 November 1998 [Exhibit 1] which stated in terms:

“Mr Tony Woods (sic) is not to be identified as a Respondent”.

4On the second morning of the hearing the Applicant’s Counsel formally withdrew the claim against Mr Wood. 

5Although the proceedings before this Court were not conducted by way of points of claim or other form of pleading the original affidavit of the Applicant indicated that it would be alleged that Ms Shiels’ employment with Lipman Pty Limited was terminated as a result of the discrimination which she had allegedly suffered. This allegation would give rise to a claim in damages for loss of earnings. It was submitted by Counsel for the Respondent that although this claim was contained in the application to the Court it was not contained in the original complaint to HREOC. S.46PO(3) HREOC Act states:

“The unlawful discrimination alleged in the application:

(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the complaint; or

(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”

6The effect of…