Hastwell v Kott Gunning [2017] FCA 1557

Hastwell v Kott Gunning [2017] FCA 1557

The complaint to the Australian Human Rights Commission was, as a matter of substance, made against the partners comprising the Kott Gunning partnership, identified by the firm name. The use of Kott Gunning Lawyers rather than Kott Gunning made no substantive difference, and the complaint process, correspondence, conciliation participation and evidence of the partners confirmed that the partnership was treated as the respondent. The required commonality between the Australian Human Rights Commission complaint respondent and the Federal Court respondent was present, so the s 46PO preconditions were met and the summary dismissal application failed.

Jurisdiction
Australia
Judgment Date
21 December 2017
Procedural Posture
Federal Court Proceeding Seeking Relief Under S 46 Po(4) of the Australian Human Rights Commission Act 1986 (cth) for Alleged Prohibited Discrimination, and Declarations and Damages for Breach of Contract / Interlocutory Application by the Respondent Seeking Summary Dismissal on Asserted Lack of Jurisdiction
Outcome
The respondent's interlocutory application for summary dismissal was dismissed, with indemnity costs ordered in favour of the applicant.
Legal Topics
['summary Dismissal' 'federal Court Jurisdiction Under S 46 PO of the Australian Human Rights Commission Act 1986 (cth)' 'terminated Australian Human Rights Commission Complaint' 'identification of Complaint Respondent' 'partnership Firm Name' 'commonality Between Complaint Respondent and Court Respondent']
['practice and Procedure' 'discrimination Law' 'employment and Industrial Relations'] ['summary Dismissal' 'federal Court Jurisdiction Under S 46 PO of the Australian Human Rights Commission Act 1986 (cth)' 'terminated Australian Human Rights Commission Complaint' 'identification of Complaint Respondent' 'partnership Firm Name' 'commonality Between Complaint Respondent and Court Respondent']

Case Brief

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Procedural Posture

Federal Court Proceeding Seeking Relief Under S 46 Po(4) of the Australian Human Rights Commission Act 1986 (cth) for Alleged Prohibited Discrimination, and Declarations and Damages for Breach of Contract / Interlocutory Application by the Respondent Seeking Summary Dismissal on Asserted Lack of Jurisdiction

Legal Issues

  1. 1 ['Whether a valid complaint was made to the Australian Human Rights Commission against a legal person where the respondent was identified by the firm name Kott Gunning Lawyers or Kott Gunning.' 'Whether the respondent to the Federal Court proceeding was the same as the respondent to the terminated Australian Human Rights Commission complaint for the purposes of s 46PO(1).' 'Whether the preconditions for the Federal Court to hear the s 46PO aspect of the proceeding were satisfied.' "Whether the respondent's interlocutory application for summary dismissal should be granted."]

Ratio Decidendi

The complaint to the Australian Human Rights Commission was, as a matter of substance, made against the partners comprising the Kott Gunning partnership, identified by the firm name. The use of Kott Gunning Lawyers rather than Kott Gunning made no substantive difference, and the complaint process, correspondence, conciliation participation and evidence of the partners confirmed that the partnership was treated as the respondent. The required commonality between the Australian Human Rights Commission complaint respondent and the Federal Court respondent was present, so the s 46PO preconditions were met and the summary dismissal application failed.

Court Disposition

The respondent's interlocutory application for summary dismissal was dismissed, with indemnity costs ordered in favour of the applicant.

Orders

  • ["The respondent's interlocutory application dated and filed 19 September 2017 be dismissed." "The respondent pay the applicant's costs of and incidental to the interlocutory application, including costs thrown away by reason of granting the respondent's adjournment application on 19 September 2017, and the costs of...