Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40

Appeal Panel - Internal

CITATION: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 APPELLANT Sally Carter PARTIES: FIRST RESPONDENT Linuki Pty Ltd trading as Aussie Hire SECOND RESPONDENT Mike Fitzgerald FILE NUMBER: 059001 HEARING DATES: 26/04/2005 SUBMISSIONS CLOSED: 04/26/2005 DATE OF DECISION: 08/22/2005

Carter v Linuki Pty Ltd t/as Aussie Hire and Anor [2004] NSWADT 287 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Schembri A - Non Judicial Member CATCHWORDS: fail to exercise jurisdiction - leave to extend to the merits - opportunity to be heard - Sex discrimination - in work - statutory interpretation MATTER FOR DECISION: Principal Matter FILE NUMBER UNDER APPEAL: 041008 DATE OF DECISION UNDER APPEAL: 12/15/2004 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987 Sex Discrimination Act 1984 (Cth) Alexander v Home Office [1998] 1 WLR 968 Battenberg v The Union Club [2004] NSWADT 285 (9 December 2004) Commissioner for Australian Capital Territory State Revenue v Alphaphone (1994) 49FCR 576 Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 Commonwealth v Human Rights and Equal Opportunity Commission & Dopking & Anor (1993) 119 ALR 133 G v R & Department of Health, Housing & Community Services [1993] HREOCA 20 (17 September 1993) CASES CITED: Horne & Anor v Press Clough Joint Venture (1994) EOC 92-591 McDonald v Puplick [1998] NSWSC 428 O'Callaghan v Loder [1983] 3 NSWLR 89 SRBB v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1387 (28 November 2003) Turnbull v NSW Medical Board [1976] 2 NSWLR 281 Wilde v University of Sydney [2003] NSWADT 206 (2 September 2003) Zanella -v- Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220 APPELLANT REPRESENTATION: R Francois, counsel FIRST & SECOND RESPONDENTS M Fitzgerald in person ORDERS: 1. The Tribunal's decision that it does not have jurisdiction to inquire into a complaint of sex discrimination in relation to Mr Fitzgerald not inviting Ms Carter to attend the Christmas party is set aside; 2. In substitution for that decision, the Appeal Panel finds that the Tribunal did have jurisdiction to inquire into that complaint; 3. Ms Carter's complaint of sex discrimination as a result of not being made to feel welcome to attend the Christmas party is substantiated; 4. The respondents are jointly and severally liable to pay damages to Ms Carter in the sum of $500.00; 5. In all other respects, the Tribunal's decision is affirmed; 6. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997