Federal Court of Australia
Federal Court of Australia
Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399 Appeal from: Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56
File number(s): NSD 1366 of 2021
Judgment of: BURLEY J
Date of judgment: 4 May 2023
Catchwords: HUMAN RIGHTS – discrimination – age discrimination in employment – appeal from Federal Circuit Court and Family Court – where appellant was treated less favourably in his employment because of his age in relation to continuing in his role or retiring – assessment of general damages and damages for economic loss challenged on appeal – appeal allowed DAMAGES – assessment of general damages – whether award of damages inadequate – whether trial judge's assessment of award of general damages contained errors of fact and law – where error in trial judge's assessment of damages and characterisation of evidence of harm – reassessment of trial judge's award of general damages DAMAGES – assessment of damages for economic loss – where trial judge concluded damages for economic loss not available because appellant had elected to terminate his employment – where evidence indicated appellant unable to work as a result of discrimination – damages for economic loss awarded
Legislation: Age Discrimination Act 2004 (Cth) ss 14, 15, 18 Australian Human Rights Commission Act 1986 (Cth) s 46PO Fair Work Act 2009 (Cth) s 119
Cases cited: Amaca Pty Ltd v King [2011] VSCA 447; 35 VR 280 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Clarke v Nationwide News Pty Ltd [2012] FCA 307; 201 FCR 389 Fox v Percy [2003] HCA 22; 214 CLR 118 Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56 House v The King [1936] HCA 40; 55 CLR 499 Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; 277 FCR 511 Hull v Thompson [2001] NSWCA 359 Knight v Beyond Properties Pty Ltd [2007] FCAFC 170; 242 ALR 586 Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44 Kozarov v Victoria [2022] HCA 12; 273 CLR 115 Lloyd v Thornbury [2019] NSWCA 154 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; 71 NSWLR 471 O'Brien v Dunsdon (1965) 39 ALJR 78 Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 Reurich v Club Jervis Bay Ltd [2018] FCA 1220 Richardson v Oracle Corporation Australia Pty Limited [2014] FCAFC 82; 223 FCR 334 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Swan v Monash Law Book Co-operative [2013] VSC 326; 235 IR 63 Taupau v HVAC Constructions (Queensland) Pty Ltd & Ors [2012] NSWCA 293 Walker v Citigroup Global Markets Pty Ltd [2006] FCAFC 101; 233 ALR 687 Willett v Victoria [2013] VSCA 76; 42 VR 571
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