AMERY & ORS. v. STATE OF NEW SOUTH WALES (DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION AND TRAINING) [2004] NSWCA 404

New South Wales Court of Appeal

CITATION : AMERY & ORS. v. STATE OF NEW SOUTH WALES (DIRECTOR-GENERAL NSW DEPARTMENT OF EDUCATION AND TRAINING) [2004] NSWCA 404 HEARING DATE(S) : 01/06/04, 02/06/04, 03/06/04 JUDGMENT DATE : 15 November 2004

JUDGMENT OF : Beazley JA at 1; Hodgson JA at 159; Cripps AJA at 208 DECISION : 1. Appeal allowed.; 2. Set aside Orders made by the Appeal Panel.; 3. Refuse leave to the respondent to appeal on the merits.; 4. Reinstate Orders 1-18 made by the Tribunal.; 5. Set aside Orders 19 and 20 made by the Tribunal.; 6. Order that the appellants are each entitled to interest on the damages awarded provided that the total amount of damages with interest does not exceed $40,000.00; 7. The parties are to bring in Short Minutes or Order to reflect Order 5 within 7 days of the date of these Orders but are to have liberty to apply in respect thereof.; 8. Order that the respondent pay the appellants' costs in the Tribunal and before the Appeal Panel but the parties are to have liberty to apply in respect of same. If such liberty is to be exercised, then it is to be by way of written submissions served upon the opposing party by Thursday 18 November and delivered to the Associate of the Presiding Judge by Friday 19 November 2004 .; 9. The respondent is to pay the appellants' costs of the appeal.

CATCHWORDS : DISCRIMINATION - Indirect discrimination on grounds of sex - Motive for indirect discrimination is irrelevant. - DISCRIMINATION - Construction - Anti-Discrimination Act 1977, s.24(1)(b) - The words "on the ground of the aggrieved person's sex" in s.24(1) are mere surplusage in relation to s.24(1)(b) - The test of 'reasonableness' in s.24(1)(b) is less demanding than one of necessity, but more demanding than a test of convenience. - DISCRIMINATION - Tribunals - Industrial questions - Anti-Discrimination Act 1977, s.54 - Amendments - Existence of an award or industrial agreement is no longer a defence. - ERROR OF LAW - Onus - Relevant and irrelevant considerations - The question whether a consideration is relevant falls to be determined having regard to the matter in issue - Existence of specialist industrial tribunal - Role of court in relation to industrial disputes. - INTEREST - Administrative Decisions Tribunal Act 1997 - Whether claimants entitled to interest by way of compensation for the loss of the use of money that ought to have been paid to them by way of salary but for the discriminatory conduct - A claim for damages under the Act may include a claim for compensatory interest. - COSTS - Administrative Decisions Tribunal Act 1997, s.114(2) - Determination of the application for costs under this section was a question of fact not law. Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Anti-Discrimination (Amendment) Act 1981(No. 15) LEGISLATION CITED : Anti-Discrimination Amendment Act 1994 (No. 28) Industrial Relations Act 1991 Public Finance and Audit Act 1983 Teaching Services Act 1980 Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Australian Medical Council v. Wilson (1996) 68 FCR 46 Commonwealth Bank v HREOC (1997) 80 FCR 78 CASES CITED : Hungerfords v. Walker (1989) 171 CLR 125 IW v. City of Perth (1997) 191 CLR 1 Saraswati v. The Queen (1991) 172 CLR 1 Secretary, Department of Foreign Affairs and Trade v. Styles (1989) 23 FCR 251 PARTIES : Joyce Amery, Lyn Bovard, Margaret Douglas, Jenny Drury, Linda Freeman, Leonie Hancott, Jacki Irvine, Denise McHugh, Karen Mors, Cheryl O'Loan, Marian Platt, Megan Pursche, Marcia Skelton (Appellants) State of New South Wales (Director-General NSW Department of Education and Training) (Respondent) FILE NUMBER(S) : CA 40548/03 COUNSEL : C. Birch SC/P. Lowson (Appellants) P. Menzies QC/T. Anderson (Respondents) SOLICITORS : MacMahon Associates Lawyers (Appellants) The Crown Solicitor (Respondent)