St Joseph's Hospital Ltd v Correy (EOD)

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Appeal Panel - Internal

CITATION: St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4
PARTIES:

APPELLANT
St Joseph's Hospital Ltd

RESPONDENT
Kathryn Correy
FILE NUMBER: 079030
HEARING DATES: 12 September 2007
SUBMISSIONS CLOSED: 12 September 2007
 
DATE OF DECISION: 
29 January 2008
BEFORE: Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS: Jones v Dunkel - applicability of rule in - leave to extend to the merits
MATTER FOR DECISION: Principal matter
DECISION UNDER APPEAL: Correy v St Joseph's Hospital Ltd [2007] NSWADT 104
FILE NUMBER UNDER APPEAL: 061003
DATE OF DECISION UNDER APPEAL: 05/10/2007
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Disability Discrimination Act 1992 (Cth)
Industrial Relations Act 1966
CASES CITED: Attorney General (NSW) v 2UE Sydney Pty Ltd and Others (2006) 236 ALR 385
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Bogie v The University of Western Sydney (1990) EOC 92-313
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 510
Jones v Dunkel (1959) 101 CLR 298
Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
Purvis v New South Wales (2003) 217 CLR 92
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68
Weissensteiner v R (1993) 178 CLR 217
Wollongong City Council v Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:

APPELLANT
P Newall, barrister

RESPONDENT
E Brus, barrister
ORDERS: 1. Leave is granted for the appeal to extend to the merits of the Tribunal’s decision but only on the issue of whether the test in section 49T(1)(a) of the Anti-Discrimination Act 1977 has been satisfied.
2. The order that, “The complaint of discrimination on the ground of responsibilities as a carer is substantiated” is set aside. In substitution for that order, an order is made that, “The complaint of discrimination on the ground of responsibilities as a carer is dismissed.”
3. The order that, “The Respondent to pay the Applicant the sum of $26,121.00 within 28 days” is set aside.
4. The victimisation complaint is remitted to the Tribunal (as originally or similarly constituted) to be heard and decided again, in accordance with the following directions:
a) the issue for determination is whether the necessary causal connection exists between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant;
b) that issue is to be determined in accordance with the Appeal Panel’s decision on the applicability of Jones v Dunkel (1959) 101 CLR 298 and R v Weissensteiner (1993) 178 CLR 217;
c) if the Tribunal finds that the relevant connection exists, it should then decide, on the basis of the existing evidence, whether…
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Details
Case
[2008] NSWADTAP 4
Decision Date

CaseChat Overview and Summary

St Joseph's Hospital Limited sought leave to appeal from a decision of the Anti-Discrimination Tribunal which held that the Respondent was liable to pay the Appellant compensation for discrimination on the ground of carer's responsibilities. The Tribunal's decision was based on its finding that the Respondent had failed to discharge the onus of proving that the dismissal of the Appellant was not on the ground of carer's responsibilities. The Respondent contended that the Tribunal had misapplied the onus of proof and erred in failing to consider the appropriate standard of proof. The appeal was brought before the Court of Appeal, which was required to decide whether the appeal should be allowed to extend to the merits and, if so, what directions should be given to the Tribunal for the reconsideration of the victimisation complaint. The Court of Appeal held that the appeal should be allowed to extend to the merits, but only on the issue of whether the test in section 49T(1)(a) of the Anti-Discrimination Act 1977 had been satisfied. The Court found that the Tribunal had erred in its application of the onus of proof and in failing to consider the appropriate standard of proof. The Court held that the appropriate standard of proof in discrimination cases is the balance of probabilities and that the onus of proof rests on the Respondent to prove that the dismissal was not on the ground of carer's responsibilities. The Court set aside the Tribunal's decision and remitted the victimisation complaint to the Tribunal for reconsideration in accordance with the Court's directions. The Court held that the issue for determination was whether the necessary causal connection existed between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant. The Court directed that the issue should be determined in accordance with the Appeal Panel's decision on the applicability of Jones v Dunkel and R v Weissensteiner. The Court held that if the Tribunal found that the relevant connection existed, it should then decide, on the basis of the existing evidence, whether the Appellant was entitled to a remedy. The Court further set aside the Tribunal's order that the Respondent pay the Appellant compensation and substituted a new order that the complaint of discrimination on the ground of responsibilities as a carer was dismissed.

Orders

Orders of the court

1. Leave is granted for the appeal to extend to the merits of the Tribunal's decision but only on the issue of whether the test in section 49T(1)(a) of the Anti-Discrimination Act 1977 has been satisfied. 2. The order that, "The complaint of discrimination on the ground of responsibilities as a carer is substantiated" is set aside. In substitution for that order, an order is made that, "The complaint of discrimination on the ground of responsibilities as a carer is dismissed." 3. The order that, "The Respondent to pay the Applicant the sum of $26,121.00 within 28 days" is set aside. 4. The victimisation complaint is remitted to the Tribunal (as originally or similarly constituted) to be heard and decided again, in accordance with the following directions: a) the issue for determination is whether the necessary causal connection exists between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant; b) that issue is to be determined in accordance with the Appeal Panel's decision on the applicability of Jones v Dunkel (1959) 101 CLR 298 and R v Weissensteiner (1993) 178 CLR 217; c) if the Tribunal finds that the relevant connection exists, it should then decide, on the basis of the existing evidence, whether the Appellant is entitled to a remedy.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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