Virgin Blue Airlines Pty Ltd v Hopper - [2007] QSC 75

SUPREME COURT OF QUEENSLAND

CITATION:

Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075

PARTIES:

VIRGIN BLUE AIRLINES PTY LTD (ACN 090 670 965)

(appellant)

V

THERESA STEWART

(first respondent)

NICOLE JULIE HOPPER

(second respondent)

MAUREEN MULHERIN

(third respondent)

CAROL PHYLIS DOWLING

(fourth respondent)

KEELY FRANCES BILL

(fifth respondent)

ALMA ELIZABETH FRANK

(sixth respondent)

LYNLEY GAY BOYES

(seventh respondent)

VIRGINIA MAY JEFFRIES

(eighth respondent)

FILE NO/S:

BS9387/05
BS9388/05
BS9390/05
BS9391/05
BS9392/05
BS9393/05
BS9394/05

BS9395/05

DIVISION:

Trial Division

PROCEEDING:

Appeal from the Anti-discrimination Tribunal

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2006

JUDGE:

Moynihan J

ORDER:

1. Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where appellants appealed against orders of Anti-Discrimination Tribunal – where appeal brought under s217 Anti-Discrimination Act 1991 (Qld) - whether appellants denied procedural fairness – whether tribunal misconstrued or misapplied provisions of the Anti-Discrimination Act 1991 (Qld) – whether tribunal took into account irrelevant considerations - whether tribunal’s findings supported by the evidence – whether findings of fact supported by the evidence – whether tribunal reversed the onus of proof

Administrative Decisions (Judicial Review Act 1977 (Cth)
Anti Discrimination Act 1991 (Qld) s10, s 14(1)(a)(b), s 204, s 205, s206, s 208, s 217, s 304
Disability Discrimination Act 1992 (Cth)
The Racial Discrimination Act 1975 (Cth)
Uniform Civil Procedure Rules 1999 (Qld) s208(1)(b)-(e)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered
Bligh, Cootes, Foster, Lenoy, Sibley, Sibley and Palmer v The State of Queensland [1996] HREOCA 28, cited
Boucher v Australian Securities Commission (1996) 44 ALD 499, cited
Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1996] QCA 558, considered
Hehir and Financial Advisers Pty Ltd v Sandra Smith [2002] QSC 092, considered
HREOC v Mt Isa Mines (1993) 46 FCR 301, considered
Kioa v West (1995) 159 CLR 550, considered
Martin & Anor v Queensland Electricity Transmission Corporation Ltd [2003] QSC 309, cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, considered
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, considered
R v District Court ex parte White (1966) 116 CLR 644, cited.
The Australian Gaslight co v Valuer General (1940) 40 SR NSW 126, considered
Thompson v Orica Australia Pty Ltd (2002) 116 IR 186, considered
Waterford v The Commonwealth (1987) 163 CLR 54, cited

COUNSEL:

GC Martin SC with CJ Murdoch for the appellant.

S Hamlyn-Harris for the respondents.

SOLICITORS:

Clayton Utz for the appellant.

Primrose Couper Crown Rudkin for the respondents.

Index

1. Introduction

2. The appellant’s recruitment process

3. The tribunal’s reasons for its decision

4. The grounds of appeal

5. Appeal on a question of law

6. The burden of proof

7.…

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: [2007] QSC 75
Decision Date: 5 April 2007

CaseChat Overview and Summary

Virgin Blue Airlines Pty Ltd appealed against the orders of the Anti-Discrimination Tribunal, arguing that the tribunal had denied them procedural fairness, misconstrued or misapplied provisions of the Anti-Discrimination Act 1991 (Qld), taken into account irrelevant considerations, and reversed the onus of proof. The tribunal had found that the airline had discriminated against a passenger on the basis of disability and had awarded the passenger compensation. The airline claimed that the tribunal's findings were not supported by the evidence and that the tribunal had erred in law.

The court found that the airline had not been denied procedural fairness, that the tribunal had not misapplied the relevant provisions of the Anti-Discrimination Act 1991 (Qld), and that the tribunal's findings were supported by the evidence. The court held that the tribunal had not taken into account any irrelevant considerations and had not reversed the onus of proof. The court found that the airline's appeal was without merit and dismissed it.

The court dismissed the appeal and affirmed the tribunal's decision. The tribunal's findings that the airline had discriminated against the passenger on the basis of disability and had awarded the passenger compensation were upheld. The court found that the tribunal had acted within its jurisdiction and that its decision was not flawed by any error of law or procedural unfairness. The airline's appeal was dismissed, and the orders of the tribunal were affirmed.

Orders

Orders of the court

1. Appeal dismissed

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:	Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075
PARTIES:	VIRGIN BLUE AIRLINES PTY LTD (ACN 090 670 965) (appellant) V THERESA STEWART (first respondent) NICOLE JULIE HOPPER (second respondent) MAUREEN MULHERIN (third respondent) CAROL PHYLIS DOWLING (fourth respondent) KEELY FRANCES BILL (fifth respondent) ALMA ELIZABETH FRANK (sixth respondent) LYNLEY GAY BOYES (seventh respondent) VIRGINIA MAY JEFFRIES (eighth respondent)
FILE NO/S:	BS9387/05 BS9388/05 BS9390/05 BS9391/05 BS9392/05 BS9393/05 BS9394/05 BS9395/05
DIVISION:	Trial Division
PROCEEDING:	Appeal from the Anti-discrimination Tribunal
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	5 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2006
JUDGE:	Moynihan J
ORDER:	1. Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where appellants appealed against orders of Anti-Discrimination Tribunal – where appeal brought under s217 Anti-Discrimination Act 1991 (Qld) - whether appellants denied procedural fairness – whether tribunal misconstrued or misapplied provisions of the Anti-Discrimination Act 1991 (Qld) – whether tribunal took into account irrelevant considerations - whether tribunal’s findings supported by the evidence – whether findings of fact supported by the evidence – whether tribunal reversed the onus of proof Administrative Decisions (Judicial Review Act 1977 (Cth) Anti Discrimination Act 1991 (Qld) s10, s 14(1)(a)(b), s 204, s 205, s206, s 208, s 217, s 304 Disability Discrimination Act 1992 (Cth) The Racial Discrimination Act 1975 (Cth) Uniform Civil Procedure Rules 1999 (Qld) s208(1)(b)-(e) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered Bligh, Cootes, Foster, Lenoy, Sibley, Sibley and Palmer v The State of Queensland [1996] HREOCA 28, cited Boucher v Australian Securities Commission (1996) 44 ALD 499, cited Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1996] QCA 558, considered Hehir and Financial Advisers Pty Ltd v Sandra Smith [2002] QSC 092, considered HREOC v Mt Isa Mines (1993) 46 FCR 301, considered Kioa v West (1995) 159 CLR 550, considered Martin & Anor v Queensland Electricity Transmission Corporation Ltd [2003] QSC 309, cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, considered Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, considered R v District Court ex parte White (1966) 116 CLR 644, cited. The Australian Gaslight co v Valuer General (1940) 40 SR NSW 126, considered Thompson v Orica Australia Pty Ltd (2002) 116 IR 186, considered Waterford v The Commonwealth (1987) 163 CLR 54, cited
COUNSEL:	GC Martin SC with CJ Murdoch for the appellant. S Hamlyn-Harris for the respondents.
SOLICITORS:	Clayton Utz for the appellant. Primrose Couper Crown Rudkin for the respondents.