WILSON v BUDSOAR PTY LIMITED & ANOR [1999] NSWCA 228

New South Wales Court of Appeal CITATION : WILSON v BUDSOAR PTY LIMITED & ANOR [1999] NSWCA 228 FILE NUMBER(S) : CA 40721/98 HEARING DATE(S) : 28 June 1999 JUDGMENT DATE : 9 July 1999

Janine Wilson - Claimant PARTIES : Budsoar Pty Limited - First Opponent Equal Opportunity Tribunal - Second Opponent JUDGMENT OF : Sheller JA at 1; Cole AJA at 29

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 30039/98 LOWER COURT JUDICIAL OFFICER : B M James J

COUNSEL : S Winters - Claimant R T Beech-Jones - Opponent Paul Denmeade & Co - Claimant SOLICITORS : Friend & Hazard - First Opponent Equal Opportunity Tribunal - Second Opponent CATCHWORDS : APPLICATION FOR LEAVE TO APPEAL;; DISCRIMINATION - ground of race - remedies - damages - economic loss - whether claimant was to have her employment lawfully terminated ACTS CITED : Anti-Discrimination Act 1977 Industrial Relations Act 1988 CASES CITED: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 DECISION : Application for leave to appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40721/98 SHELLER JA COLE AJA

Friday, 9 July 1999

WILSON v BUDSOAR PTY LIMITED & ANOR JUDGMENT

1 SHELLER JA: The claimant, Janine Wilson, applies for leave to appeal from a decision of B M James J given on 3 September 1998 dismissing her appeal by summons pursuant to s118 of the Anti-Discrimination Act 1977 from a decision of the second opponent, the Equal Opportunity Tribunal (the Tribunal) given on 30 March 1998. In an earlier decision of 27 June 1996 the Tribunal had found that Budsoar Pty Limited, the respondent and the first opponent on this application, had discriminated against her on the ground of race in dismissing her from its employment on 12 February 1993 in contravention of ss 7 and 8 (2) of the Anti-Discrimination Act as in force at the time of her dismissal. In the decision appealed from the Tribunal held that the claimant was not entitled to any damages for economic loss in consequence of her discriminatory dismissal. 2 The claimant, who is a white woman, is a journalist. In May 1991 she became the first permanent full time editor of a publication called "The Koori Mail" published in Lismore. The newspaper circulates principally among aborigines. In January 1992 Budsoar took over the administration of The Koori Mail and became the claimant's employer. The directors of Budsoar were of aboriginal descent. The board appointed a general manager who until July 1992 was Mr Gary Martin and subsequently Mr John Toohey. 3 In December 1992 the board of Budsoar appointed Mr Snell as an independent consultant. At a meeting of the board on 2 December 1992 it was resolved to place the senior employees of Budsoar, including the claimant, on 12 months written contracts of employment. A form of contract was tendered to the claimant but she, after taking advice from a Media, Entertainment & Arts Alliance Union representative, did not sign the contract. 4 On 13 January 1993 Mr Snell told the claimant it was the intention of the directors of Budsoar to replace her as editor with an aboriginal. On 15 January 1993 Mr Snell recommended to the board at an informal meeting that the claimant be dismissed. He gave three reasons: