Wattle v Kirkland (No.2)

[2002] FMCA 135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATTLE v KIRKLAND & ANOR (No. 2) [2002] FMCA 135

HUMAN RIGHTS – Sex discrimination – sexual harassment – disability discrimination – contested evidence of incidents of harassment – credibility of applicant and respondents.

PRACTICE AND PROCEDURE – Interest – appropriate rate of pre-judgment interest in human rights proceedings.

Disability Discrimination Act 1992 (Cth), ss.15, 17
Federal Magistrates Act 1999 (Cth), s.76
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 16, 28A, 28B

Briginshaw v Briginshaw (1938) 60 CLR 336
Charles v Fuji Xerox [2000] FCA 1531
Elliott v Nanda & Commonwealth [2001] FCA 418
Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217
Kirkland v Wattle [2001] FCA 145
Namol Pty Ltd & Anor v A U Baulderstone Pty Ltd & Ors (1993) 119 ALR 187
Watkins v Fuyer & Anor (1995) EOC ¶92-667
Wattle v Kirkland [2001] FMCA 66

Applicant: MARGARET JEAN WATTLE

First Respondent:

Second Respondent:

RAYMOND KIRKLAND

DAPHNE GERALDINE KIRKLAND

File No: SZ199 of 2001

Delivered on: 21 August 2002

Delivered at: Sydney

Hearing Dates:

2 July in Mudgee

30 July in Sydney

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr D Hillard
Clayton Utz

Counsel for the Respondent: Mr D Williams

Solicitors for the Respondent: Phillip Kruit, Solicitor

ORDERS

1. The Court declares that the first respondent sexually harassed the applicant, and that both respondents discriminated against the applicant, contrary to the Sex Discrimination Act 1984 (Cth).

2. The respondents are to pay damages to the applicant in the sum of $28,035, including pre-judgment interest up to and including 21 August 2002, with any further pre-judgment interest to be assessed at the rate of 9.5 per cent up to the date of entry of these orders.

NOTE

These orders may be settled and entered in accordance with Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ199 of 2001

MARGARET JEAN WATTLE

Applicant

And

RAYMOND KIRKLAND

First Respondent

DAPHNE GERALDINE KIRKLAND

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application brought pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) alleging that the applicant was the subject of sexual harassment contrary to ss.28A and 28B of the Sex Discrimination Act 1984 (Cth) (“the SDA”). The applicant also alleges discrimination contrary to both the SDA (s.5 and either s.14(2)(d) or s.16(d)) based upon the alleged harassment and also that her dismissal from employment was a breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”) (either s.17(1)(b) or s.15(2)(c)).

2. The applicant was engaged as a taxi driver by the respondents who at the time operated a taxi cab business in Mudgee.  The applicant claims that she was sexually harassed by the first respondent on a number of occasions in early 2000.  The applicant was dismissed by the second respondent on 8 February 2000.  The applicant…