mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8
Outcome: considered
The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was ' based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another [1999] FCA 105 ; (1999) 94 FCR 341 for an analysis of the meaning of 'based on'.
Case: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449
Outcome: followed
Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.
Case: Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133
Outcome: considered
The question of causation that arises in the application of s 18C(1)(a) has been considered in numerous cases. In Purvis v New South Wales (Department of Education and Training) and Another [2003] HCA 62 ; (2003) 202 ALR 133 at 138 the High Court explained per Gleeson CJ, at 171-2 per McHugh and Kirby JJ, at 187 per Gummow, Hayne and Heydon JJ, that the accepted test for causation in the context of anti-discrimination legislation focuses on the 'genuine basis' or 'the true basis' or 'real reason' for the act of the alleged discriminator. The question of causation was also considered in Bropho 135 FCR at [71] wherein French J referred to the description by Kiefel J in Creek v Cairns Post 112 FCR at [28] of the key causation issue as 'whether anything suggests race as a factor' in the act in question. Kiefel J at [23] adopted the approach to the construction of statutory provisions similar to s 9 of the RDA taken by McHugh J in Waters 173 CLR at 401.
Case: Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517
Outcome: referred to
Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66 ; (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another [1965] HCA 46 ; (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.
Case: Shaikh v Campbell &amp; Nivona Pty Ltd [1998] HREOCA 13
Outcome: cited
Under s 17(a) of the RDA it is unlawful for a person to incite the doing of acts made unlawful by a provision of Part II of the RDA. Further s 17(b) makes it unlawful for a person to assist or promote the doing of such an act (whether by financial assistance or otherwise). In Shaikh v Campbell &amp; Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998), in referring to s 17 of the RDA, Commissioner Innes AM stated at 8: 'In order to make out a case under this section the complainant has to show incitement, assistance or promotion of someone carrying out unlawful acts. Incitement denotes encouragement in an active way.' 232 To establish her claims pursuant to this section, Ms Obieta must show that the particular respondents were actively inciting or encouraging behaviour that is made unlawful by a provision of Part II of the RDA (s 17(a)) or that the respondents assisted or promoted the doing of such acts (s 17(b)). 233 Section 5 of the SDA provides a definition of sex discrimination under the SDA and does not of itself give rise to a cause of action. It essentially provides the conditions that are required before a person called the 'discriminator' (s 5(1)) can be found to have discriminated against another person called the 'aggrieved person' (s 5(1)) on the grounds of the sex of the aggrieved person. Under s 5(1) if by reason of the sex of the aggrieved person, or a characteristic that generally pertains to or is generally imputed to a person of that sex, the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of the opposite sex, then the discriminator has discriminated against the aggrieved person. Ms Obieta must establish that the respondent in question treated her less favourably than the respondent would treat a person of the opposite sex in circumstances that are the same or not materially different.
Case: Sharma v Legal Aid (Qld) [2002] FCAFC 196 ; (2002) 115 IR 91
Outcome: cited
The standard of proof that is required to establish unlawful conduct under s 9 of the RDA was considered in Sharma v Legal Aid (Qld) [2002] FCAFC 196 ; (2002) 115 IR 91. The Full Court at [40] said: ' It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54 ; [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] UKHL 36 ; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No 2] [1984] HCA 7 ; (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.'
Case: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Outcome: cited
In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 , a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered... must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '... [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313 ) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744 ) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44 ) '
Case: Tasmanian Wilderness Society Inc and Others v Fraser and Others [1982] HCA 37 ; (1982) 153 CLR 270
Outcome: referred to
Some of the alleged breaches refer to definition or explanatory sections, which cannot give rise to a cause of action. Accordingly the Court will make no reference to the alleged breaches of such sections. Further, no cause of action can arise from an alleged breach of an International Convention as claimed by Ms Obieta (see Tasmanian Wilderness Society Inc and Others v Fraser and Others [1982] HCA 37 ; (1982) 153 CLR 270 at 274 per Mason J). Accordingly the Court will similarly not refer to articles of International Conventions which Ms Obieta claims have been breached. 18 Mr Norman was Ms Obieta's teacher of the modules Interaction in a Legal Office , Interaction with Other Parties and Advocacy Skills , each of which were part of the TAFE course for the Diploma of Business-Legal Studies. 19 On Wednesday 5 May 2004 during a class exercise relating to discrimination, Mr Norman proposed that the class be divided into different groups and that each group would be required to report, either ' for' a particular argument or ' against ' it. He made a comment to the effect ' my two blue-eyed good friends over here would report that there is discrimination and the other group would report there is no discrimination '. Ms Obieta says that Mr Norman indicated that one who would be advocating that there was no discrimination came from the Philippines, thereby indicating Ms Obieta, and the other had a history of China, thereby indicating Ms Chong, another student in the class. Ms Obieta claims that by reason of Mr Norman saying such words loudly and repeatedly on two occasions, she felt discriminated against. She alleges that such conduct breached ss 9 and 18C of the RDA.
Case: Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515
Outcome: cited
In Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] Carr J agreed with the adoption by Kiefel J of the approach taken by McHugh J in Waters 173 CLR. At 31 Carr J said: 'The authorities on the issue of causation in the context of the discrimination legislation were reviewed by Kiefel J in Cairns Post at [19]-[27]. It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.'
Case: Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47
Outcome: referred to
Three important considerations arise from the above. Firstly, the burden of proof lies upon Ms Obieta to establish discrimination, harassment or victimisation whether it arises pursuant to the RDA or the SDA. Secondly, with respect to claims of unlawful discrimination, harassment or victimisation under the RDA, it is essential that the discrimination, harassment or victimisation be proved, on the balance of probabilities, on the ground of Ms Obieta's race (see Victoria v Macedonian Teachers' Association of Victoria Inc and Another [1999] FCA 1287 ; (1999) 91 FCR 47). Similarly, with regard to a claim for sexual discrimination, harassment or victimisation under the SDA, discrimination, harassment or victimisation based upon Ms Obieta's sex must be established on the balance of probabilities: see Aboriginal Legal Rights Movement Inc v South Australia and Another (No1) (1995) 64 SASR 551 at 553.
Case: Adam P. Brown Male Fashions v Phillip Morris [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: applied
The Court has the power to set aside or vary the previous orders because those orders are interlocutory orders over which the Court maintains its control: see Adam P. Brown Male Fashions v Phillip Morris [1981] HCA 39 ; (1981) 148 CLR 170 (' Phillip Morris ') at 178. However, for reasons that I shall endeavour to briefly state I am of the clear view that the orders sought should not be made and that each of the notices of motion of the respondent should be dismissed with costs. 5 Gray J, after hearing the parties, granted the interlocutory injunctions sought by APRA. His Honour was in no doubt that there was a serious issue to be tried and that the balance of convenience favoured the grant of the injunctive relief sought. Siminton has not adduced evidence of any new facts that have come into existence or been discovered that render the enforcement of the orders unjust: see Phillip Morris at 178. His challenge to the orders appears to be an endeavour to rely on the Court's power to set aside interlocutory orders as a substitute for an appeal. The challenge should be refused as it is a misuse of process and, in any event, is wholly without merit. In particular, I am not satisfied that any proper basis has been demonstrated for interfering with his Honour's orders.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: cited
The standard of proof is the civil standard, but because the claim is for a penalty, to the level of satisfaction in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-362.
Case: Jones v Dunkel (1959) 101 CLR 298
Outcome: cited
In my opinion, in the absence of any explanation for failing to call Mr Carslake and none was proffered, it would be right to draw the inference that Mr Carslake's evidence would not have assisted the respondent on this and the other two relevant conversations: Jones v Dunkel (1959) 101 CLR 298. There is no suggestion that Mr Carslake was not available to be called and I find that a conscious decision was made not to call him. 32 I accept Mr Zito's evidence and I find that on 3 May 2004 Mr Feehan told Mr Zito that he would close the site down because Mr Zito's employees were not members of the Union and because the site lacked the appropriate facilities. I also find that either later on 3 May 2004, or on 4 May 2004, Mr Feehan attended the site with Mr Carslake and Mr Carslake spoke to Mr Zito and told Mr Zito that he would not be able to pour concrete the next day. 33 The respondent said that he told Mr Zito that he would be back on 5 May 2004. I accept that aspect of the respondent's evidence because it is consistent with both Mr Potter's and Mr Zito's evidence. Moreover, he did return on 5 May 2004 as he promised.
Case: O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1
Outcome: followed
The issue to be determined is whether the respondent intentionally hindered or obstructed an employer or employee. That question is simply a question of fact. A person may intentionally hinder or obstruct another person by an active act or conduct which is essentially negative in character: O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 49-50. 22 Here the case against the respondent is that he did both. He both performed acts and failed to perform acts which showed that he intentionally hindered or obstructed both employers and employees. 23 The Halifax Street site is on the corner of Halifax Street and Cardwell Street, Adelaide. It is on the southern side of Halifax Street and its eastern border was on Cardwell Street. Part of its southern border at that time was on Ely Place. The rest of its southern border was on Gilles Street. The site was owned by the Southcott family but it was the Kinsmen Group who was the developer of the site. Scott Salisbury Homes were in May 2004 commencing to build eight separate two-storey townhouses or units with separate strata titles on an area of the site called "Stage 4". Stage 4 was on the western boundary of the site near Ely Place. The only access to the site was from Halifax Street, there being no access either from Cardwell Street or Ely Place. The area of the site immediately adjacent to Halifax Street was called the common access roadway. It was into that area that traffic coming from Halifax Street onto the site would enter. Immediately south of the common access area and to the east of Stage 4 was an area undergoing remediation. There was an access lane area between Stage 4 and the area undergoing remediation upon which traffic, including trucks, could travel to get access to all of Stage 4. Trucks could not turn in that access lane area. If a truck needed to turn it had to turn into the common access area immediately off Halifax Street. If a truck wanted to travel down the access lane area, the truck driver would have had to back down the lane if the truck driver wished to drive out nose first, or back out if the truck driver had chosen to drive in nose first. The common access area was sometimes used as a parking area for employees on the site and had been so used prior to the day in question.
Case: Pine v Doyle (2005) 143 IR 98
Outcome: followed
Such a finding is consistent with him telling Mr Zito that he would be back the next day and with his later actions. He parked his car next to Rocky Mastrullo's truck. Shortly after he alighted from his car, he was approached by Mr Potter. He was asked to remove his car from the site. A conversation ensued. During the conversation Mr Potter asked to see the respondent's permit and the written notice of entry. The respondent disputed that he needed a written notice and claimed that Mr Potter knew that he would be there that day. The respondent showed Mr Potter his permit as he was obliged to do under s 285D(1). The exercise of a power of entry under the Act is a matter of fact: Pine v Doyle (2005) 143 IR 98. The respondent exercised that power of entry. 61 Mr Potter told him to move his vehicle and told him that the vehicle was parked in a position which would impede the progress of concrete trucks which needed that space in which to turn so that the trucks might back down the access lane to the Stage 4 development. The respondent did not comply with that request, notwithstanding that he was told that the position of his car was in an area designated for the trucks to turn. His silence amounted to a refusal. 62 It was at the time the practice of the Building Industry Task Force to maintain a running sheet as a record of matters that were attended to on particular days. Mr Concannon kept a running sheet of the events of 5 May 2004 which was exhibited to his affidavit.
Case: Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9.
Case: Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125
Outcome: cited
The present application does not call for a detailed discussion of the principles that govern the exercise of the Court's discretion under s 436B(2) of the Act. The reason is that, in my view, on any approach, the discretion should be exercised in favour of the granting of leave for the Liquidators to appoint themselves as administrators. The main question under s436B(2) of the Act is whether the Court is satisfied that the liquidator is an appropriate person to be appointed as administrator. After all, a liquidator is at liberty under s 436B(1) of the Act to appoint another person as administrator without the necessity of leave: see Deputy Commissioner of Taxation v Foodcorp Pty Ltd (1994) 13 ACSR 796 ( Foodcorp) ; Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 ; Nardell Coal Corporation Pty Ltd (recs and mgrs apptd) (in liq) (2003) 47 ACSR 122. It has been suggested, however, that the Court should also have in mind considerations of commercial morality: see Re Data Homes Pty Ltd (in liq) [1972] 2 NSWLR 22; Re Depsun Pty Ltd (1994) 13 ACSR 644; Foodcorp at 798-9. 26 It would be wasteful to put the Liquidators to that effort and expense, having regard to the fact that the members of the committee of inspection in the liquidation have unanimously supported the Proposal, in general, and, in particular, the re-appointment of the Liquidators as administrators for the purpose of advancing it. For this reason I made the order sought under s 447A of the Act. I note that such an order has been made in somewhat similar circumstances in Re Cobar Mines Pty Ltd (rec and mgr apptd) (in liq) (1998) 30 ACSR 125; John R Turk &amp; Sons (Artarmon) Pty Ltd v Newmont Television Pty Ltd [1999] NSWSC 622 and Re Nardell Coal Corporation Pty Ltd (rec and mgr apptd) (in liq) (2003) 47 ACSR 122.