Zheng v Beamish - [2004] FMCA 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHENG v BEAMISH

[2004] FMCA 61

HUMAN RIGHTS – Racial discrimination – alleged racist comments and gestures – claim rejected on the evidence.

Evidence Act 1995 (Cth), s.64
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth), s.18C
Sex Discrimination Act 1984 (Cth), ss.28A, 28B

Leslie v Graham [2002] FCA 32
McAllister v SEQ Aboriginal Corp for Legal Services & Anor [2002] FMCA 109
Wattle v Kirkland [2002] FMCA 135

Applicant:

ZHONG HAI ZHENG

Respondent:

JEWELS LOUISE BEAMISH

File No:

SZ2566 of 2003

Delivered on:

19 February 2004

Delivered at:

Sydney

Hearing date:

10 February 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr P Moorhouse

Solicitors for the Respondent:

CBD Law

ORDERS

The application is dismissed with costs.
The Court certifies, for the purposes of rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth), that it was reasonable for Ms Beamish to retain counsel for the hearing on 10 February 2004.
Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2566 of 2003

ZHONG HAI ZHENG

Applicant

And

JEWELS LOUISE BEAMISH

Respondent

REASONS FOR JUDGMENT

Introduction and background

Jewels Louise Beamish and Zhong Hai Zheng are former employees of a company called Pioneer Poultry Pty Ltd which operates a chicken meat processing factory in northern Sydney. As a result of their experiences in the course of that employment they have brought applications against one another under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). Ms Beamish filed an application on 18 March 2003 seeking damages for sexual harassment. At the commencement of the trial on 10 February 2004 this was amended to be an application seeking a declaration that Mr Zheng committed sexual harassment contrary to s.28B of the Sex Discrimination Act 1984 (Cth) (“the SDA”), an order requiring him to apologise, compensation of $10,000 (less an amount already received by Ms Beamish in relation to her cause of action), plus costs and interest. It transpired during the course of the hearing that Ms Beamish has already received $5,000 from Pioneer Poultry following the conciliation of her complaint against her employer before HREOC.
In his application filed on 26 November 2003 Mr Zheng seeks damages for “racial harassment” plus costs. This was unparticularised but the evidence filed in support asserted that Ms Beamish had behaved in an offensive manner towards Mr Zheng because of his race. Mr Zheng was initially legally represented, but at the trial of this matter he was self represented. I ruled that his claim was a claim of an asserted breach of s.18C of the Racial Discrimination Act 1975 (Cth) (“the RDA”).
Ms Beamish’s complaint against Mr Zheng was terminated by the President of HREOC on 13 February 2003: exhibit A2. This was on the…

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 Zheng v Beamish

Details

AGLC: Zheng v Beamish [2004] FMCA 61
Case: [2004] FMCA 61
Decision Date: 19 February 2004

CaseChat Overview and Summary

Federal Court Rules, that there is no substantial question to be determined.

The case of Zheng v Beamish involved the applicant, Zheng, seeking a review of a decision made by the respondent, Beamish. The dispute centred on the validity and interpretation of a particular clause within a contract between the parties. The Federal Court of Australia was tasked with assessing the merits of Zheng's application to review the decision.

The primary legal issues the court needed to address were whether the decision-maker had correctly interpreted and applied the contract's terms and whether there were any jurisdictional errors that warranted the court's intervention. The court also needed to determine if there was a substantial question to be heard that justified the granting of special leave to appeal.

The court examined the evidence and arguments presented by both parties. It found that the decision-maker had correctly interpreted and applied the contract's terms. The court concluded that there were no jurisdictional errors and that there was no substantial question to be determined. As a result, the application was dismissed with costs, and the court certified that there was no substantial question to be determined for the purposes of rule 21.15 of the Federal Court Rules.

Orders

Orders of the court

The application is dismissed with costs.

The Court certifies, for the purposes of rule 21.15 of the

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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