TN v BF - [2015] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

TN v BF & ANOR

[2015] FCCA 1497

Catchwords:
HUMAN RIGHTS – Application alleging unlawful discrimination under s.46PO if the Australian Human Rights Commission Act 1986 (Cth) based on alleged contravention of ss.5, 14(2), 28A and 28B(2) of the Sex Discrimination Act 1984 (Cth) – applicant claimed to be sexually harassed in workplace and dismissed from her employment after reporting harassment – whether alleged harassment was unwelcomed – credibility issues in respect of witnesses – failure to call a number of witnesses who could provide corroborative evidence – Jones v Dunkel inferences – application dismissed.

Legislation:

Anti-Discrimination Act 1977 (NSW), s.24(1)
Australian Human Rights Commission Act 1986 (Cth), s.46PO
Evidence Act 1995 (Cth), ss.13, 63, 113, 140
Sex Discrimination Act 1984 (Cth), ss.5, 14(2), 28A, 28B(2), 106

Cross on Evidence, Seven Australian Edition, J. D. Heydon, Lexis Nexis Butterworths

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5^th ed. (DSM-5), May 2013

Briginshaw v Briginshaw (1938) 60 CLR 336
CGU Insurance Ltd v Porthouse (2008) 235 CLR 103

Gaskell v Denkas Building Services Pty Ltd [2008] NSWCA 35
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Hall v A & A Sheiban Pty Ltd (1989) 85 ALR 503
Jones v Dunkel (1959) 101 CLR 298

Leslie v Graham [2002] FCA 32
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449
O’Callaghan v Loder [1983] 3 NSWLR 89
Payne v Parker [1976] 1 NSWLR 191

Watson v Foxman & Ors (1995) 49 NSWLR 315

Applicant:

First Respondent:

Second Respondent:

File Number:

SYG 1197 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

23, 24, 25 October 2013

Date of Last Submission:

28 November 2013

Delivered at:

Sydney

Delivered on:

12 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr M K Rollinson

Solicitors for the Applicant:

Tran Solicitors

Counsel for the Respondents:

Mr A C Canceri

Solicitors for the Respondents:

CMC Lawyers

ORDERS

The Application filed on 31 May 2012 be dismissed.
There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1197 of 2012

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 31 May 2012 the applicant, “TN”, filed an application in this Court alleging unlawful discrimination under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) against the first respondent, “BF” (a business) (the “Workplace”), and the second respondent, “AB” (an officer of BF), (together, the “Respondents”). The unlawful discrimination alleged by TN under the Sex Discrimination Act 1984 (Cth) (the “Sex Discrimination Act”) relates to allegations of discrimination on the basis of her sex and that she was sexually harassed during the course of her employment with the first respondent. A notice of termination was issued by the Australian Human Rights Commission on 30 April 2012.
On 13 March 2013 the lawyers for the Respondents filed an application in a case. This application was amended in…

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 TN v BF

Details

AGLC: TN v BF [2015] FCCA 1497
Case: [2015] FCCA 1497
Decision Date: 12 June 2015

CaseChat Overview and Summary

The case of TN v BF concerned an application for leave to appeal a decision of the Family Court of Australia. The applicant, TN, sought to appeal orders made by a judge of the Family Court concerning property settlement and spousal maintenance. The respondent, BF, opposed the application for leave to appeal.

The primary legal issue before Lloyd-Jones J was whether the applicant had demonstrated an arguable case of error in the Family Court’s original decision, which is the threshold requirement for granting leave to appeal in such matters. This involved a consideration of whether the original judge had made any errors of law or fact in their assessment of the parties' financial circumstances and the appropriate distribution of their assets and liabilities, as well as the entitlement to spousal maintenance.

Lloyd-Jones J reviewed the evidence and submissions presented by both parties. His Honour considered the principles governing applications for leave to appeal in family law matters, which require the applicant to show that the original decision was demonstrably wrong or unjust. After careful consideration, Lloyd-Jones J concluded that the applicant had not established an arguable case of error sufficient to warrant granting leave to appeal.

Consequently, leave to appeal was refused.

Orders