Vitality Works Australia Pty Ltd v Yelda

[2021] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vitality Works Australia Pty Ltd v Yelda [2021] NSWCA 4

Hearing dates:

1 February 2021

Date of orders:

1 February 2021

Decision date:

02 February 2021

Before:

Payne JA

Decision:

(1)   The Notice of Motion filed and dated 25 January 2021 by Vitality Works Australia Pty Ltd is dismissed.

(2)   Vitality Works Australia Pty Ltd to pay Ms Yelda’s costs of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – stay of proceedings – matter of practice and procedure – whether stay should be granted of Tribunal damages hearing

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW), s 83

Civil Procedure Act2005 (NSW), ss 56-60, s 67

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685

Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd [2014] NSWCA 87

Nikolaidis v Legal Services Commissioner [2005] NSWCA 91

Rockdale Beef Pty Ltd v New South Wales Industrial Relations Commission (2005) 148 IR 395; [2005] NSWCA 369

Symonds v Egan National Valuers (NSW) Pty Ltd [1996] NSWCA 513

Vitality Works Australia Pty Ltd v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210

Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203

Category:

Procedural rulings

Parties:

Vitality Works Australia Pty Ltd (Applicant)
Reem Yelda (First Respondent)
NSW Civil and Administrative Tribunal (Second Respondent)

Representation:

Solicitors:
FCB Workplace Law (Applicant)
First Respondent in person

File Number(s):

2020/317513

Judgment

1. PAYNE JA: The present case involved an application for a stay of a damages hearing fixed to be heard on 15 February 2021 by the NSW Civil and Administrative Tribunal (NCAT), pending the determination of an application for leave to appeal by Vitality Works Australia Pty Ltd (Vitality Works) about the question of liability, which was determined unfavourably to Vitality Works in October 2020. On 1 February 2021, I dismissed Vitality Works’ motion seeking a stay with costs and reserved reasons. These are my reasons.

2. On 3 July 2018, the respondent on the motion, Ms Yelda, commenced proceedings against Vitality Works and her employer, Sydney Water Corporation (Sydney Water), in NCAT alleging unlawful discrimination within the meaning of the Anti-Discrimination Act 1977 (NSW). At all relevant times those proceedings have been managed and heard together. On 19 October 2018, Senior Member Scahill in NCAT determined that liability would be determined before damages.

3. On 1 October 2019, NCAT determined that Vitality Works and Sydney Water contravened the Anti-Discrimination Act in relation to the creation and display of a poster containing a photograph of Ms Yelda: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2019] NSWCATAD 203.

4. Vitality Works and Sydney Water appealed. On 13 October 2020, the NCAT Appeal Panel dismissed the appeals: Vitality Works Australia Pty Ltd v Yelda; Sydney Water Corporation v Yelda [2020] NSWCATAP 210.

5. On 25 November 2020, Senior Member Dubler…