Mitchell v Clayton Utz & Ors (No 2)
In January 2010, Magistrate Hennessy of the NSW Administrative Decisions Tribunal (ADT) considered an application filed by Mr Mitchell to correct orders arising out of his Honour’s previous decision (Mitchell v Clayton Utz & Ors [2009] NSWADT 266 (13 October 2009)) under s 87 of the Administrative Decision Tribunal Act 1997 (NSW). Clayton Utz opposed the application saying that the order did not contain an omission or, in the alternative, that the correction sought by Mr Mitchell was inconsistent with the reasoning in the prior decision.
After stating the Tribunal’s power to correct errors (at [2]), Magistrate Hennessy republished the correction sought by Mr Mitchell (at [3]). That correction relates to the leave granted in respect of Complaint (3) as per the case summary above. Mr Mitchell contended that the order should instead have read (changes in italics):
Leave is granted for the following complaints or parts of complaints to proceed:
c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless those names were accompanied by other conduct of a sexual nature as described in paragraphs 43 and 45 above and the comment alleged to have been made by Mr Williams that ‘solicitors could take paralegals home for sex’; [edited]
Submissions
Magistrate Hennessy gave the following edited summary of the submissions (at [5] – [7]):
Mitchell
Mr Mitchell submitted that it was ‘obvious’ that the Tribunal intended to grant leave in relation to allegations of joking/harassment that articulated ‘the associations between overcoats and deviant sexual behaviours’. He noted that that phrase had been quoted directly from the original complaint. Mr Mitchell submitted that by using the qualifying phrase ‘with no accompanying conduct of a sexual nature’ in [43], the Tribunal was recognising that in some cases the words ‘trench’ or ‘trench coat’ could constitute sexual harassment if, at the same time, Mr Williams or Mr Taylor ‘articulated the associations between trenchcoats and deviant sexual behaviour’. Mr Mitchell accepts that in cases where they merely used the word ‘trench’ or ‘trenchcoat’ without any accompanying conduct of a sexual nature, leave was not granted. Mr Mitchell says that during a case conference on 2 December 2009, Clayton Utz submitted that the Tribunal only granted leave for Mr Mitchell to proceed in relation to the complaints against Mr Williams and Mr Taylor which referred to Mr Mitchell as ‘flasher’.
Clayton Utz
Clayton Utz accepted that in [45] of the decision the Tribunal granted leave in relation to behaviour that ‘articulated associations between overcoats and deviant sexual behaviours’. Clayton Utz went on to say that this behaviour constituted making ‘fun of [the Applicant] by conduct or email communication’ and making ‘jokes [about the Applicant] for changing in his office’. According to Clayton Utz, the Tribunal has distinguished this behaviour from the behaviour of calling the Applicant ‘trench’ or ‘trench coat’ with no ‘accompanying conduct of a sexual nature’ as described in [43] of the decision. Clayton Utz accepted that the order granting leave for complaints of sexual harassment against Mr Williams and Mr Taylor to proceed includes the ‘behaviour’ referred to in [45] of the decision.
In a second successive win for Mr Mitchell, Magistrate Hennessy agreed that there was “a minor inconsistency between [43] of the Tribunal’s decision and the relevant order” and corrected the order as follows (at [10]):
Leave is granted for the following complaints or parts of complaints to proceed:
c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for
(i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature;
(ii) the comment alleged to have been made by Mr Williams that ‘solicitors could take paralegals home for sex’.
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