Dee v Commissioner of Police & Anor [2003] NSWADT 217

Dee v Commissioner of Police & Anor [2003] NSWADT 217

The original complaint expressly identified sex discrimination, giving the Tribunal jurisdiction to consider that claim, but it contained no reference or sufficient factual basis for victimisation, so the victimisation claim was beyond jurisdiction. The President had exercised power under s.88(4) to accept the out of time part of the complaint, and any timing of notice after steps under ss.89(1) and 92 did not affect the Tribunal's jurisdiction. There was no basis at the preliminary stage to dismiss the First Respondent from the sexual harassment proceedings because s.53 was capable of applying to sexual harassment and, taking the Applicant's material at its highest, the question of...

Jurisdiction
Australia
Judgment Date
15 September 2003
Procedural Posture
Sex Discrimination, Sexual Harassment and Victimisation Complaint Under the Anti Discrimination Act 1977 / Preliminary Matter; First Respondent's Application Under S.111 to Dismiss or Limit Parts of the Complaint and to Be Removed as a Party
Outcome
First Respondent's preliminary application was partly upheld only in relation to dismissal of the victimisation complaint; the remaining applications were rejected.
Legal Topics
['sex Discrimination' 'sexual Harassment in the Workplace' 'victimisation' 'tribunal Jurisdiction' 'out of Time Complaint' 'vicarious Liability' 'summary Dismissal Under S.111']
['anti Discrimination Law' 'employment Law'] ['sex Discrimination' 'sexual Harassment in the Workplace' 'victimisation' 'tribunal Jurisdiction' 'out of Time Complaint' 'vicarious Liability' 'summary Dismissal Under S.111']

Case Brief

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Procedural Posture

Sex Discrimination, Sexual Harassment and Victimisation Complaint Under the Anti Discrimination Act 1977 / Preliminary Matter; First Respondent's Application Under S.111 to Dismiss or Limit Parts of the Complaint and to Be Removed as a Party

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to hear the Applicant's sex discrimination complaint raised in the Amended Points of Claim." "Whether the Tribunal had jurisdiction to hear the Applicant's victimisation complaint raised in the Amended Points of Claim." "Whether parts of the complaint occurring before 23 June 1999 were outside the Tribunal's jurisdiction because they were lodged out of time." 'Whether the First Respondent should remain a party to the sexual harassment proceedings on the basis of possible vicarious liability.']

Ratio Decidendi

The original complaint expressly identified sex discrimination, giving the Tribunal jurisdiction to consider that claim, but it contained no reference or sufficient factual basis for victimisation, so the victimisation claim was beyond jurisdiction. The President had exercised power under s.88(4) to accept the out of time part of the complaint, and any timing of notice after steps under ss.89(1) and 92 did not affect the Tribunal's jurisdiction. There was no basis at the preliminary stage to dismiss the First Respondent from the sexual harassment proceedings because s.53 was capable of applying to sexual harassment and, taking the Applicant's material at its highest, the question of...

Court Disposition

First Respondent's preliminary application was partly upheld only in relation to dismissal of the victimisation complaint; the remaining applications were rejected.

Orders

  • ["The First Respondent's application to have the Applicant's complaint of sex discrimination dismissed is rejected." "The First Respondent's application to have the Applicant's complaint of victimisation dismissed is upheld." "The First Respondent's application to have part of the complaint dismissed under s.111...