LORANG v MATER MISERICORDIAE HOSPITAL and ANOR [1994] NSWCA 362

LORANG v MATER MISERICORDIAE HOSPITAL and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and CLARKE JA 18 May 1994, 30 June 1994

[1994] NSWCA 362

ANTI-DISCRIMINATION LEGISLATION — Anti-Discrimination Act 1977 — discrimination on ground of age — hospital notifies intended termination of specialist anaesthetist's appointment as Visiting Medical Officer in accordance with its by-laws — by-laws provide that specialist anaesthetists "are required to retire on their sixty-fifth birthday and are not eligible for re-appointment'? — whether hospital's conduct is unlawful under s49ZV of the Act — whether hospital has engaged in conduct "with a view to causing an employee to retire from employment" on the ground of the employee's age — specialist anaesthetist concedes he is not an employee of the hospital — argues that his employment (including contracts to provide services) was with patients referred by reason of his appointment to the hospital — argues that conduct of hospital caused him, as employee of patients, to retire from employment, viz as anaesthetist at hospital — Equal Opportunity Tribunal finds in favour of anaesthetist — on appeal to Supreme Court Hulme J reverses finding for error of law — on further appeal to the Court of Appeal — held: (Gleeson CJ and Clarke JA; Kirby P dissenting):

STATUTES — construction — Anti-Discrimination Act 1977 — proper approach to construction — purposive approach — achievement of purposes or objects of the Act as disclosed in its language — achievement of beneficial and reformatory purposes of Act — avoidance of overly narrow construction which would defeat its purposes.

(1) The hospital did not engage in conduct "with a view to" causing the anaesthetist to retire.

Rajski v Carson and Ors (1988) 15 NSWLR 84 (CA) considered;