Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: TU v Vaisman [2013] NSWADT 8 Hearing dates: 29 October 2012 Decision date: 15 January 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The complaint is not summarily dismissed.
2. The matter is listed for a case conference on 23 January 2013 at 3 pm.
Catchwords: SUMMARY DISMISSAL - damages awarded against employer for breach of Anti-Discrimination Act - employer in liquidation - whether an abuse of process to commence separate proceedings against other respondents on basis that they are jointly liable for damage - operation of Anshun estoppel - operation of Reichel estoppel Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Law Reform (Miscellaneous Provisions) Act 1946Cases Cited: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Australian Postal Commission v Dao (1985) 3 NSWLR 565
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
Brinsmead v Harrison (1972) LR 7 CP 547
Commissioner of Police v Estate of Russell [2002] 55 NSWLR 232
Cooper v Human Rights Commission [1999] FCA 180
Elliott v Nanda (2001) 111 FCR 240
Foodco Group Pty Ltd v Northgan Pty Ltd (1998) 83 FCR 356; 41 IPR 138; (1998) ATPR 41-636
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Harris v 718932 Pty Ltd [2000] NSWSC 784
Henville v Walker (2001) 206 CLR 459
Johnson v Gore Wood & Co (a firm) [2000] UKHL 65; [2002] 2 AC 1
Moy v Warringah Council [2004 ] NSWCCA 77
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26
Reichel v Magrath (1889) 14 App Cas 665
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290
Webb v State of Queensland (Queensland Health) [2005] QADT 26
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448Texts Cited: Rees, Rice and Lindsay, Australian Anti-Discrimination Law, The Federation Press, 2008 Category: Interlocutory applications Parties: TU (Applicant)
Jacov Vaisman (First Respondent)
Karen Baker (Second Respondent)Representation: HIV/AIDS Legal Centre (Applicant)
Bruce Diamond Dimarco Lawyers (First Respondent)
Ms Baker (No appearance)
File Number(s): 121051 Publication restriction: Orders in terms of section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 have been made in relation to the applicant.
REASONS FOR DECISION
Introduction
The Tribunal has previously ordered that Advanced Medical Institute (AMI) pay TU damages of $30,000 for refusing to treat him for erectile dysfunction on the ground that he is HIV positive: TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290. The company that owns AMI, AMI Australia Holdings Pty Ltd, had not paid the $30,000…
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Details
- AGLC
- Tu v Vaisman [2013] NSWADT 8
- Case
- [2013] NSWADT 8
- Decision Date
CaseChat Overview and Summary
The applicant, TU, sought compensation from Vaisman and others for alleged discrimination and unfair dismissal, claiming damages under the Anti-Discrimination Act. Vaisman, the employer, was in liquidation, and TU sought to hold other respondents liable for the damages. The central issue was whether it would be an abuse of process to proceed with separate proceedings against the other respondents who were alleged to be jointly liable for the damages. Additionally, the court had to consider the applicability of the Anshun and Reichel estoppels in this context.
The court examined the principles of Anshun and Reichel estoppels, which prevent parties from relitigating issues that have already been determined in another proceeding. The court noted that the Anshun estoppel is a common law estoppel that prevents a party from relitigating issues that have been determined in a previous proceeding, while the Reichel estoppel is a statutory estoppel that prevents a party from relitigating issues that have been determined in a previous proceeding where the party had an opportunity to be heard. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents as they had not had an opportunity to be heard in the previous proceeding. Furthermore, the court held that the Anshun and Reichel estoppels did not apply in this case as the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding.
The court found that the complaint was not summarily dismissed, and the matter was listed for a case conference on 23 January 2013 at 3 pm. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents, and the Anshun and Reichel estoppels did not apply in this case. The court held that the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding. The court held that the applicant had not acted unreasonably in commencing separate proceedings against the other respondents.
The court made an order that the complaint was not summarily dismissed and listed the matter for a case conference on 23 January 2013 at 3 pm. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents, and the Anshun and Reichel estoppels did not apply in this case. The court held that the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding. The court held that the applicant had not acted unreasonably in commencing separate proceedings against the other respondents.
The court examined the principles of Anshun and Reichel estoppels, which prevent parties from relitigating issues that have already been determined in another proceeding. The court noted that the Anshun estoppel is a common law estoppel that prevents a party from relitigating issues that have been determined in a previous proceeding, while the Reichel estoppel is a statutory estoppel that prevents a party from relitigating issues that have been determined in a previous proceeding where the party had an opportunity to be heard. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents as they had not had an opportunity to be heard in the previous proceeding. Furthermore, the court held that the Anshun and Reichel estoppels did not apply in this case as the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding.
The court found that the complaint was not summarily dismissed, and the matter was listed for a case conference on 23 January 2013 at 3 pm. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents, and the Anshun and Reichel estoppels did not apply in this case. The court held that the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding. The court held that the applicant had not acted unreasonably in commencing separate proceedings against the other respondents.
The court made an order that the complaint was not summarily dismissed and listed the matter for a case conference on 23 January 2013 at 3 pm. The court held that it was not an abuse of process to proceed with separate proceedings against the other respondents, and the Anshun and Reichel estoppels did not apply in this case. The court held that the previous proceeding did not involve a determination of the issues that were being litigated in the current proceeding. The court held that the applicant had not acted unreasonably in commencing separate proceedings against the other respondents.
Orders
Orders of the court
1. The complaint is not summarily dismissed.
2. The matter is listed for a case conference on 23 January 2013 at 3 pm.
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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