Domestic Case Law

McCauley v. Club Resort Holdings Pty Ltd. Queensland Civil and Administrative Tribunal (2013)

Employment discrimination, Sexual harassment

The complainant worked at the Club Resort Holdings Pty Ltd., the respondent.  She was working in a cold larder preparing food when a colleague sexually harassed her.  The complainant sought an investigation by their employer.  The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work.  Ultimately, she resigned.  The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts.  The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment. 

Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination, Property and inheritance rights

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint.  The respondent’s application was denied because there were real factual issues in dispute.  It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached).  In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children.  The complainant was a single mother who sought to rent an apartment from the respondent.  The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.  

R.A. v. N.C. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination

The complainant was a Muslim woman who wore a hijab covering her hair.  While the complainant and the respondent were in a residential elevator, the defendant made disrespectful remarks to the complainant about the complainant’s presumed religion.The two did not know each other – the complainant’s hijab was the only way for the defendant to identify her religion.  The complainant sought an apology.  Video evidence was submitted at trial from CCTV.  Importantly, there was an additional individual in the lift.  As a result of this witness, the tribunal was able to find that the defendant had committed a “public act” for the purposes of the Anti-Discrimination Act 1991 (Qld).  However, the tribunal ultimately did not find for the complainant as the words used were determined by the tribunal to not, in fact, result in religious vilification as the additional individual in the lift did not react to the words. This case is relevant as it goes directly to ongoing discrimination women may face in Australia as a result of expressing their religion (through, for example, wearing a hijab).

J.M. v. Q.F.G. and G.K. Anti-Discrimination Tribunal Queensland (1997)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

The complainant was a woman in an exclusive lesbian relationship for four years. The complainant and her partner wanted to have child but learned that donor insemination in Queensland would not be available for them, so the complainant traveled out of state to seek this treatment. She found the experience to be emotionally and financially draining, so she stopped the treatment. Thus, the complainant decided to try and ask the clinics in Queensland for the donor treatment. She found a clinic at which the respondent was a director. She obtained a referral from her general practitioner and scheduled an appointment with the respondent. At the appointment, the complainant informed the respondent that she was in a long-term lesbian relationship.  The respondent’s position was clear that the clinic only provided treatment to heterosexual couples with infertility problems. Nevertheless, he requested blood tests of the complainant which showed that her ovaries were functioning normally and proceeded to give her a form to fill out and sign for herself and her “husband” in order to start the treatment. The complainant asked the respondent if she could fill only the wife part and sign, but he insisted that it should be signed by the husband.  Since this was not possible in her case, the respondent refused to provide her with the treatment. The claimant then sought treatment outside Brisbane for a while without success. The claimant had a baby by private donation, ultimately bearing risks of possible HIV infection of the semen. The claimant suffered emotional distress from humiliation and discrimination based on her sexual orientation, in addition she had to defer her university degree for all the time she had to spend traveling to clinics outside Queensland. Subsequently, the claimant filed this claim before the Anti-Discrimination Tribunal seeking compensation from the respondent and his clinic. The respondent argued that there was an agreement with the government on artificial insemination by donation in relation to treatment of infertility, and that treatment is to be provided only to heterosexual couples. The Tribunal confirmed that there was no such agreement in place. The respondent also argued the definition of infertility only describes the incapability of heterosexual couples of conceiving because of medical reasons caused by one or both of them. The Tribunal also refused this limitation of the definition and held that the fact that scientifically two females are incapable of conceiving a child is a medical reason that makes them eligible for the same treatment as any heterosexual couple seeking this treatment. Accordingly, the Tribunal found the act of the respondent to be discriminatory against the complainant because she is a lesbian, which is unlawful under the Anti-Discrimination Act 1991, and ordered the clinic to pay the claimant a compensation sum for the humiliation and offence she suffered.

R. v. H. Supreme Court of Queensland (2002)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families.  The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her.  That girl left after certain remarks by the appellant.  The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance.  During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape.  Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.

Du Bois-Hammond v. Ariel Anti-Discrimination Tribunal Queensland (2004)

Employment discrimination, Gender discrimination

The complainant worked as a Reservations Manager at the Raging Thunder Pty where both respondents, Cole and Ariel, were directors. The complainant became pregnant and went on maternity leave in agreement with the directors that she would return to the company at the same position after her maternity leave. Closer to the date when the complainant was about to return back from her maternity leave, she contacted Mr. Cole and discussed the possibility of returning on a part-time basis, but Mr. Cole informed her it was not possible for a managerial position to be part-time. The complainant tried to contact Mr. Cole again to inform him that she was willing to work full-time, but could not reach him, so she sent him the message through the receptionist. After several calls with Mr. Cole and without a definitive answer on her return date to work, Mr. Ariel called the complainant to inform her of a company restructuring and that her position was no longer available and that the two newly introduced positions were already filled by her colleagues. The complainant asked if they were going to offer any similar positions, but Mr. Ariel told her they had no more positions and he would not create one for her. The complainant suffered emotional distress and financial loss due to becoming redundant, therefore filed for this complaint seeking compensation. The complainant alleged that, due to her pregnancy and maternity leave, the respondents (i) failed to discuss the terms of her returning to work; (ii) failed to discuss her offer to work part-time;(iii) failed to appoint her in the new position of Call Center Manager and appointed Ms. S. instead; (iv) failed to appoint her in the new created position of 2IC and appointed Ms. G.; and, (v) failed to offer her an alternative position. The Anti-Discrimination Tribunal did not find the respondents liable for all of the complainant’s allegations, but ruled that the company and Mr. Ariel failed to offer the complainant the 2IC position after restructuring even though she was more experienced and familiar with this role than Ms. G., who was only covering for the complainant during her maternity leave.  Thus, the Tribunal found that the reason for not offering this position to the complainant was due to her maternity leave.  The company and Mr. Ariel also failed to offer the complainant any alternative position, again due to her maternity leave, and therefore her return was not considered while planning the restructuring of the company. The Tribunal found that respondents did not discriminate against complainant in conversations about her returning to work, in not discussing her offer to work part-time, in choosing to restructure, or in failing to appoint her in the Call Center Manager position under the Anti-Discriminatory Act 1991. However, the Tribunal did find that if complainant had not been on maternity leave at the time of the restructuring, she would have been offered the 2IC position, and that decision constituted pregnancy discrimination on the part of the first and third respondents.  Also, the Tribunal found the failure to offer complainant a suitable alternative position constituted pregnancy discrimination.  Therefore, the Tribunal ruled a compensation sum to be paid the complainant.

McRostie v. Boral Resources Anti-Discrimination Tribunal Queensland (1999)

Employment discrimination, Gender discrimination

The complainant was an employee of the respondent company. The complainant filed this complaint against the respondent primarily for appointing a man, J., in the position of Administration Manager without advertising the position and therefore not giving the complainant an opportunity to compete for the position. The complaint rested on the following: (i) discriminating in complainant’s salary because  J., even though he held positions of similar ranking and job descriptions over the years, always received a higher salary than the complainant by at least $5,000; (ii) removing complainant’s name from the list of attendees to the Perth Conference of the Institute of Quarrying; (iii) not giving her the opportunity to relieve her line manager from his duties during his absence and giving this task to J.; (iv) deciding not to give her the task of delivering a presentation even though she was the project coordinator and instead giving it to J.; (v) placing J. on the Archipegalo Project and denying complainant’s request for leave time; and (vi) selecting J. to conduct a computer training when complainant had expertise in the area.  The complainant suffered from emotional distress and subsequently resigned from her position.  The complainant sought compensation for the ongoing financial loss caused by not finding a full-time employment since her resignation. The Anti-Discrimination Tribunal did not find discrimination on the part of respondent based on complainant’s allegations, except for two years of salary discrimination.  Accordingly, the Tribunal ordered the respondent to pay the complainant a compensation sum for the difference in the salaries within 30 days.

R. v. Hunter Supreme Court of Queensland (2014)

Domestic and intimate partner violence, Femicide

The appellant and the victim were married for 37 years. On 6 May 2010, the victim was struck at least 15 times on the head, face, and forearm with severe force, causing her death. When police arrived, they found the victim’s body doused in petrol in the garage near her car.. Police found the appellant lying on the floor in the lounge room in the house with a head injury and had a letter opener sticking out of his right hand. The appellant was taken to hospital and later interviewed by the doctors and police. The appellant told police that he got out of bed, walked into the lounge room, and was hit on the head by a man wearing a stocking over his head. Throughout this interview and later investigations by the police, the appellant maintained that there was an intruder who entered the house, assaulted him, and then killed his wife. At trial, the Crown’s case against the appellant included several pieces of circumstantial evidence:  the victim was covered by appellant’s clothing, someone attempted to clean up the blood with towels, the victim was doused in petrol but not ignited, indicating that someone tried to destroy DNA, the footprints around the victim’s body matched footwear commonly worn by appellant, the appellant’s DNA was on a bloody metal bar found near the victim’s body, the metal bar appeared to come from the household, blood in and around the house matched victim’s and appellants, appellant had dried, flaky blood on him, the appellant gave inconsistent accounts of the events, appellant lied to officials, and appellant had the motive to kill her because he had financial difficulties and was the beneficiary of her life insurance. In light of the evidence, the appellant was convicted of  murdering the victim.The appellant filed an appeal on the grounds that the trial judge erred in  (i) directing the jury that they could use appellant’s lie in relation to the murder weapon belonging to him as implied admission of his guilt; (ii) directing the jury that they could use appellant’s lie about owning footwear similar to that which left footprints around the victim’s body as implied admission of his guilt; (iii) admitting the lack of reaction from the appellant when learning of his wife’s death as evidence of his guilt; (iv) failing to direct the jury in relation to evidence that the appellant did not ask how his wife died; (v) misdirecting the jury in relation to motive; and, (vi) failing to direct the jury in relation to evidence of DNA analysis. The Supreme Court dismissed the appeal, finding that the trial judge did not err in jury instructions or admissions. 

Brown v. Moore Supreme Court of Queensland (1996)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was a married aboriginal woman employed at the The Black Community Housing Service as a bookkeeper since 1985 and later as an Administrator until her resignation in August 1992. The first appellant became the director of the Housing Service in December 1990, and the second appellant was the employer, The Black Community Housing Service. The respondent started receiving calls from the appellant where he expressed his love to her and made inappropriate sexual remarks. The appellant also made inappropriate sexual remarks to the respondent when attending meetings together, on other occasions he gifted her “sexually explicit figurines,” and “touched her sexually suggestively on numbers of occasions.” The respondent did not confront the appellant in fear of losing her job, but she did complain to the board of directors who took no action against the appellant. Respondent filed a complaint against the appellant on the basis of sexual harassment and discrimination, and ultimately resigned when the board of directors would not remove appellant from his position while the investigation was underway. The Anti-Discrimination Tribunal found the claims of the respondent to be true. The Tribunal also learned that the employer did not have any policies on discrimination or sexual harassment, nor provided its employees with a training regarding the same. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the employer and the appellant pay the respondent compensation for damages caused by the discrimination and sexual harassment. The first appellant filed this appeal stating that the Tribunal had no evidence that the respondent suffered any hurt and/or humiliation, nor that the respondent’s resignation was due to the behaviour of the appellant. The first appellant also objected on the compensation amount being “excessive in the circumstances.” The second appellant appealed, stating that the employer was not vicariously liable for the acts of the first appellant. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.

Mount Isa Mines, Ltd. v. Hopper Supreme Court of Queensland (1998)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was employed as an apprentice by the first appellant, the second appellant was her supervisor, and the third, fourth, and fifth appellants were her co-apprentices. Over the course of the respondent’s employment with the first appellant, she was subject to unlawful discrimination and sexual harassment by the third, fourth, and fifth appellants (among others). The complaint by the respondent included her receiving sexual comments and unequal treatment by her superiors and co-workers because she was a female, and many of her peers told her that she was not fit for her job because she was a female. Examples of these acts were a display of pictures and posters of half-dressed women in various parts of the workplace, addressing the respondent in the presence of others at a training with inappropriate comments, not giving the respondent the same work opportunities as her male peers, and providing her with unfavourable report cards that included clear comments against her as a female. The Anti-Discrimination Tribunal in the first instance found that the first appellant was negligent in providing the proper training to its employees on anti-discrimination and sexual harassment at the work place, subsequently allowing the other appellants to act in a discriminatory way towards the respondent because of her gender. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the appellants to pay the respondent compensation  for damages caused by discrimination and sexual harassment. The appellants’ filed this appeal objecting to the Tribunal’s findings. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.