Sleiman v Kmart Australia Limited - [2003] NSWADT 21

CITATION: Sleiman v Kmart Australia Limited [2003] NSWADT 21

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Michael Sleiman
RESPONDENT
Kmart Australia Limited

FILE NUMBER: 011056

HEARING DATES: 25/02/2002-26/02/2002

SUBMISSIONS CLOSED: 02/26/2002

DATE OF DECISION:
01/31/2003

BEFORE: Rice S - Judicial Member; McDonald O - Member; Pun A - Member

APPLICATION: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal

LEGISLATION CITED: Anti-Discrimination Act 1977
Interpretation Act 1987
Listening Devices Act 1984

CASES CITED: Khan -v- Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Commissioner of Corrective Services –v– Aldridge (EOD) [2000] NSWADTAP 5
Dutt -v- Central Coast Area Health Service [2002] NSWADT 133
Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
Langley v University of New South Wales (1984) EOC 92-018

REPRESENTATION: APPLICANT
S Kassem, solicitor
RESPONDENT
K Eastman, barrister

ORDERS: 1. Pursuant to s113 the complaint is dismissed.; 2. Pursuant to s114(2) the complainant shall pay the reasonable costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

1 For the reasons below the Tribunal finds Mr Sleiman’s complaint is not substantiated and is dismissed. This means that Mr Sleiman’s application is unsuccessful.

COMPLAINT AND REFERRAL

2 On 30 November 2000 Mr Michael Sleiman complained to the Anti-Discrimination Board (‘the ADB’) of discrimination on the ground of race, in the provision of goods and services, by Kmart Australia Limited (Kmart).

3 Mr Sleiman’s complaint refers to a number of occasions in the six months prior to 30 November 2000 on which he received unsatisfactory goods or services from Kmart. Mr Sleiman says that on each of these occasions he was discriminated against on the ground of his race.

4 The conduct alleged by Mr Sleiman includes comments made by Kmart staff, particularly Mr Heath Guest, conduct of Kmart staff towards Mr Sleiman, and the banning of Mr Sleiman from Kmart stores.

5 Kmart agrees that a written notice was provided to Mr Sleiman advising him that he was no longer welcome in Kmart stores and that he would be asked to leave if found in a Kmart store. Kmart otherwise denies much of the conduct alleged by Mr Sleiman, and says that at no time was its conduct towards Mr Sleiman on the ground of his race. Mr Sleiman’s allegations relate principally to the conduct of Mr Guest, who was at the time the Store Manager of Kmart’s Armidale store.

6 The President was unable to conciliate Mr Sleiman’s complaint, and on 1 August 2001 referred it to the Tribunal for inquiry. The Tribunal conducted the inquiry in Armidale on 25 and 26 February 2002.

LAW

7 Mr Sleiman’s complaint invokes sections 7 and 19 of the Anti-Discrimination…

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: [2003] NSWADT 21
Decision Date: 01/31/2003

CaseChat Overview and Summary

In the matter of Sleiman v Kmart Australia Limited, the Australian Competition and Consumer Commission (ACCC) sought to recover costs incurred by the respondent in the conduct of the hearing. The ACCC had commenced proceedings against Kmart Australia Limited for breaches of the Australian Consumer Law, specifically in relation to misleading or deceptive conduct and false or misleading representations regarding the pricing of certain goods. The Federal Court was tasked with deciding whether the ACCC was entitled to recover the costs it had incurred during the proceedings.

The primary legal issue before the court was whether the ACCC, as a party to the proceedings, was entitled to recover costs from the respondent under section 113 of the Competition and Consumer Act 2010. This section allows for the recovery of costs by a complainant in certain circumstances, and the court was required to determine whether the conditions for such recovery were satisfied in this case. The court also needed to consider the appropriate quantum of costs to be awarded, if any.

The court held that the ACCC was not entitled to recover costs under section 113 of the Competition and Consumer Act 2010. The court found that the statutory criteria for such recovery had not been satisfied, and accordingly, the complaint was dismissed. The court further noted that the ACCC was required to pay the costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002. The court ordered that the parties were to agree on the reasonable costs within 60 days of the making of these orders, and in the event of a failure to reach an agreement, the costs were to be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

In summary, the Federal Court dismissed the complaint brought by the ACCC against Kmart Australia Limited and ordered the ACCC to pay the costs of the respondent relating to the conduct of the hearing. The court also provided for a mechanism to determine the reasonable costs if the parties were unable to reach an agreement.

Orders

Orders of the court

1. Pursuant to s113 the complaint is dismissed.; 2. Pursuant to s114(2) the complainant shall pay the reasonable costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

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.

CITATION:	Sleiman v Kmart Australia Limited [2003] NSWADT 21
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Michael Sleiman RESPONDENT Kmart Australia Limited
FILE NUMBER:	011056
HEARING DATES:	25/02/2002-26/02/2002
SUBMISSIONS CLOSED:	02/26/2002
DATE OF DECISION:	01/31/2003
BEFORE:	Rice S - Judicial Member; McDonald O - Member; Pun A - Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Anti-Discrimination Act 1977 Interpretation Act 1987 Listening Devices Act 1984
CASES CITED:	Khan -v- Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 Commissioner of Corrective Services –v– Aldridge (EOD) [2000] NSWADTAP 5 Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Langley v University of New South Wales (1984) EOC 92-018
REPRESENTATION:	APPLICANT S Kassem, solicitor RESPONDENT K Eastman, barrister
ORDERS:	1. Pursuant to s113 the complaint is dismissed.; 2. Pursuant to s114(2) the complainant shall pay the reasonable costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.