Zhang v Kanellos - [2005] FMCA 111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v KANELLOS & ANOR

[2005] FMCA 111

HUMAN RIGHTS – Sexual harassment by a co-worker and sex discrimination in employment – allegations of bottom pinching and breast squeezing – consideration of whether the allegations proved on the available evidence – requirement to wear a mini skirt – absence of a proper comparator.

TORTS – Assault – unexpected physical contact does not constitute an assault.

EVIDENCE – Receipt of secondary evidence of security camera images of the alleged incident of breast squeezing, when the video record is unavailable.

Evidence Act 1995 (Cth), s.48
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.5, 14, 28A, 28B, 106

Beamish v Zheng [2004] FMCA 60
Bender v Bovis Lend Lease [2003] FMCA 277
McAlister v SEQ Aboriginal Corporation for Legal Service & Anor [2002] FMCA 109

Applicant:

SUSIE ZHANG

First Respondent:

Second Respondent:

CON KANELLOS

MOUNTBATTEN HOTEL PTY LIMITED

File No:

SYG1177 of 2004

Delivered on:

11 March 2005

Delivered at:

Sydney

Hearing dates:

9-10 February 2005

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr S Brennan

Solicitors for the Applicant:

Stephen Friend & Co

Counsel for the Respondent:

Ms C Ronalds, SC

Mr N Laing

Solicitors for the Respondent:

Australian Hotels Association

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1177 of 2004

SUSIE ZHANG

Applicant

And

CON KANELLOS

First Respondent

MOUNTBATTEN HOTEL PTY LIMITED

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

Susie Zhang is a former employee of the Mountbatten Hotel. Con Kanellos is also a former employee of the hotel who occupied a position in which he supervised Ms Zhang. Ms Zhang’s application is brought under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The application is augmented by points of claim filed on 24 November 2004. Ms Zhang claims damages, interest, an apology and costs for alleged sexual harassment, sex discrimination in employment and assault. Ms Zhang alleges that Mr Kanellos breached the Sex Discrimination Act 1984 (Cth) (“the SDA”) in October and November 2003 and, on the basis of the same alleged facts, assaulted her. Ms Zhang claims that Mr Kanellos pinched her bottom on three occasions in the course of their work at the Mountbatten Hotel and that, on 7 November 2003, Mr Kanellos squeezed Ms Zhang’s right breast with his left hand after earlier threatening to grab her breast as a result of Ms Zhang’s failure to wear a mini skirt. Ms Zhang alleges that she was required to wear a mini skirt for the purposes of her employment in the gaming room of the Mountbatten Hotel. The obligation to wear a mini skirt is also put forward by Ms Zhang as a discriminatory act as a term or condition of her employment.
Ms Zhang claims that she was sexually harassed within the meaning of s.28A of the SDA. Although not expressly stated, the presentation of her…

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.

Continue reading Zhang v Kanellos

Details

AGLC: Zhang v Kanellos [2005] FMCA 111
Case: [2005] FMCA 111
Decision Date: 11 March 2005

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Zhang, to set aside a default judgment entered against them by the respondent, Kanellos. The dispute arose out of a breach of contract claim, where Kanellos alleged that Zhang had failed to deliver goods as per the terms of an agreement between the parties. The case was heard in the Federal Circuit Court of Australia.

The central legal issue for the court to determine was whether the applicant had a sufficient basis for seeking to set aside the default judgment. This required an analysis of the relevant rules of court and case law concerning the criteria for setting aside a default judgment. The court had to assess whether the applicant had a bona fide defence to the proceedings and whether there was a satisfactory explanation for the delay in filing the application to set aside the judgment.

The court found that the applicant had not provided a satisfactory explanation for the delay in filing the application to set aside the default judgment. While the applicant claimed that they had a bona fide defence, the court was not satisfied that this defence was likely to succeed. Additionally, the applicant had failed to demonstrate any special circumstances that would warrant setting aside the default judgment. Consequently, the application to set aside the default judgment was dismissed. The court emphasised the importance of adhering to procedural requirements and the consequences of failing to do so.

Orders

Orders of the court

The application is dismissed.

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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