Tully v McIntyre

[2000] QCA 115

SUPREME COURT OF QUEENSLAND

CITATION:

McIntyre & Anor v Tully [2000] QCA 115

PARTIES:

KEVIN McINTYRE
(first appellant)
MANMAC HOLDINGS PTY LTD ACN 064 065 765
(second appellant)
v
GEOFFREY THOMAS TULLY
(respondent)

FILE NO/S:

Appeal No 6049 of 1999
SC No 9739 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2000

JUDGES:

Davies and Thomas JJA, Williams J
Judgment of the Court

ORDER:

Appeal allowed with costs; the order of the Supreme Court of 7 June 1999 be set aside; in lieu thereof it be ordered that the appeal be allowed and orders made by the Anti-Discrimination Tribunal on 25 September 1998 be set aside; order that the respondent pay the appellants' costs of the proceedings in the Supreme Court including reserved costs to be assessed

CATCHWORDS:

DISCRIMINATION LAW – STATE PROVISIONS – QUEENSLAND – where respondent approached appellant in hope that a job would be created for him – discriminatory comments (on age) made when no job was on offer - whether decision made "in deciding who should be offered work" – evidence incapable of disclosing contravention of s 14(1) Anti-Discrimination Act 1991 - no prohibited act of discrimination – damages assessed by tribunal - whether failure to separate components of global damages a legal error – requirement that tribunal give proper reasons and specify how the damages are composed – need for restraint in awarding damages for distress caused by cross-examination – whether basis for award of damages for loss of chance of employment
Anti-Discrimination Act 1991 (Qld) s 14(1), s 7(1), s 10(1), s 124, s 209, s 217

Sellars v Adelaide Petroleum NL (1993-1994) 179 CLR 332 considered
University of Ballarat v Bridges [1995] 2 VR 418 considered

COUNSEL:

J Curran for the appellants
S J Armitage for the respondent

SOLICITORS:

Tunns Lawyers as town agents for Donald W Dickie (Broadbeach) for the appellants
Trilby Misso & Co for the respondent

1. THE COURT: The appellant Mr McIntyre was found by the Anti-Discrimination Tribunal to have discriminated contrary to the requirements of s 14(1)(b) and s 7(1)(f) of the Anti-Discrimination Act 1991. The finding was that he had discriminated on the basis of age in deciding who should be offered work. He and his company (Manmac Holdings Pty Ltd trading as Nashuatec Gold Coast ("Nashuatec")) were ordered to pay compensation to the complainant Mr Tully, assessed at $11,000. Mr McIntyre and Nashuatec appealed unsuccessfully to a judge of the Supreme Court under s 217 of the Anti-Discrimination Act 1991. They now appeal to this court against the rejection of that appeal.

1. The unlawful discrimination is alleged to have occurred during a telephone conversation on 10 April 1997.  It was a telephone call initiated by Mr Tully ("the respondent") who wished to discuss the prospect of his obtaining employment with Nashuatec.  On the evidence the respondent was not applying for any position which was then on offer…