Background

Penny Thew is a specialist employment, discrimination and industrial law barrister. She has expertise in matters arising under the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1996 (NSW), as well as in claims involving discrimination law, contractual disputes and restraints of trade. Penny also appears regularly in litigation involving succession law, disposition of assets and possession.

Penny is known for her responsiveness and strategic, client-focused approach to litigation. She works with a broad range of clients, including corporate clients, government agencies and individuals. This gives her an insight into all sides of a dispute and helps her stay sharply attuned to her clients’ interests when it comes to achieving the best possible end goal.

Between 2000 and 2005, Penny practised as a solicitor in the areas of employment, industrial and discrimination law, acting for corporate and government clients, as well as employer associations. She also undertook an internship with the International Labour Office in Geneva, Switzerland. Prior to this, she worked as a policy advisor for the Human Rights and Equal Opportunity Commission (now the Australian Human Rights Commission), during which time she worked on the Report of the National Pregnancy and Work Inquiry 1999 and the NSW Pay Equity Inquiry in 1998.

Penny is a part-time Tribunal Member of the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal, and was reappointed for a five year term in 2019. She is also an editorial committee member of Bar News, the journal of the NSW Bar Association.



Focus Areas + Select Cases

Fair Work Act interpretation (2020). Penny appeared for an applicant in Federal Court of Australia Full Court proceedings which distilled the bases upon which applicants can make certain claims under Part 3-1 of the Fair Work Act 2009 (Cth).

Indemnity principle in costs proceedings (2018-2019). Penny appeared in Federal Court of Australia Full Court and High Court special leave proceedings. These affirmed that the indemnity principle is satisfied, and costs can therefore prima facie be awarded, provided there is a contingent liability to pay costs at the time of making a costs order (led by Dr Birch SC).

Gambling behaviours not found to be a disability (2018). Penny appeared in disability discrimination proceedings in which she successfully defended an allegation that an applicant patron’s ‘gambling behaviours’ constituted a ‘disability’ or associated manifestation within the meaning of the legislation. Penny obtained a similar finding in unrelated proceedings in 2017 in relation to ‘gambling addiction’.

Best Practice Guidelines (2015). As a Bar Association committee member, Penny drafted the NSW Bar Association’s model Best Practice Guidelines directed at eradicating sexual harassment, discrimination and bullying at the Bar. The model Best Practice Guidelines have since been adopted by more than 50% of the private Bar in NSW.

‘Unreasonable act or omission’ giving rise to costs (2007). Penny appeared in proceedings establishing that an opposing party’s failure to accept a reasonable settlement offer constitutes an unreasonable act or omission justifying a costs order under predecessor provisions to section 570 of the Fair Work Act 2009 (Cth). The often-cited decision remains a leading authority for the availability of costs under the Fair Work Act 2009 (Cth).

 

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225; (2020) 292 IR 317 (appeals under general protections provisions of Fair Work Act 2009 (Cth))

El Ali v Royal & Ors; Zreika v Royal & Ors [2019] HCATrans 227 (led by Dr Birch SC; indemnity principle)

Zreika v Royal [2019] FCAFC 82; (2019) 271 FCR 65 (led by Dr Birch SC; dispositions of shares and assets); Zreika v Royal (No 2) [2019] FCAFC 237; (2019) 141 ACSR 261 (led by Dr Birch SC; costs and consequential orders)

 

King v PIA Mortgage Services Pty Ltd & Ors [2018] FCCA 3426 (led by Taylor SC; general protections claim under the Fair Work Act 2009 (Cth) and Australian Consumer Law claim); King v PIA Mortgage Services Pty Ltd & Ors (No 2) [2019] FCCA 1460 (penalties under the Fair Work Act 2009 (Cth))

Johnston v Ainslie Football Club Limited (Discrimination) [2018] ACAT 104 (disability discrimination; ‘gambling behaviours’ alleged as a disability)

Hinder v The Salvation Army (NSW) Property Trust (No 3) [2017] NSWCATAD 16 (disability discrimination; ‘gambling addiction’ alleged as a disability)

McDonald v Parnell Laboratories (Aust) Pty Ltd (2007) 168 IR 375 (breach of employment contract and family responsibilities discrimination claim under the Sex Discrimination Act 1984 (Cth) and section 659(2)(f) of the Workplace Relations Act 1996 (Cth); McDonald v Parnell Laboratories (Aust) (No 2) (2007) 164 FCR 591; 175 IR 251 (costs under the Workplace Relations Act 1996 (Cth))

Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.4) [2019] FCCA 3639; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.3) [2019] FCCA 3159; Clarke v Nursing and Midwifery Council of New South Wales & Ors (No.2) [2019] FCCA 3035 (dismissal of various breach of duty and consumer law applications; costs)

Royal v Nazloomian, in the matter of Royal [2019] FCA 555 (bankruptcy notice set aside)

Mine Subsidence Board v Kozak [2017] NSWSC 421 (possession)

Curry v Curry [2017] NSWSC 461 (possession)

Royal v El Ali [2016] FCA 782; Royal v El Ali (No 2) [2016] FCA 1156; Royal v El Ali (No 3) [2016] FCA 1573; Royal v El Ali (No 4) [2017] FCA 299; Royal v El Ali; In the Matter of the Bankrupt Estate of El Ali [2014] FCA 834; Royal v El Ali, in the matter of the bankrupt estate of El Ali [2013] FCA 923; Royal v El Ali [2011] NSWSC 602 (led by Dr Birch SC; dispositions of shares and assets rendered void, consequential and costs orders)

Venn v Mine Subsidence Board [2013] NSWLEC 30 (appeal under the Mine Subsidence Compensation Act 1961 (NSW))

Neale v Mine Subsidence Board [2013] NSWLEC 34 (appeal under the Mine Subsidence Compensation Act 1961 (NSW))

Wright (President of the Law Council of Australia), Nomchong SC, McKenzie (NSW Legal Services Commissioner) and Thew, ‘The Winds of Change?’ [2020] Bar News (Summer) 6.

Thew and Nomchong SC, “The other pandemic: sexual harassment and bullying in law”, Lawyers Weekly, 14 October 2020.

Thew, “Us Too?: One year on from the IBA’s damning report” [2020] LSJ (Issue 68) 76.

Birch SC, Thew and France, “Alienations of property with intent to defraud” [2020] LSJ (Issue 63) 88.

Thew, “Us Too? Findings on bullying and harassment in the legal profession” [2019] Bar News (Winter) 10.

Cheshire SC and Thew, “Meeting the challenges of the modern Bar; A Clerk’s View” [2019] Bar News (Winter) 52.

Corsaro SC and Thew, “Obtaining leave to appear - NSW Civil and Administrative Tribunal” [2019] Bar News (Winter) 71.

Thew and Tronson, “What is the economic cost of discrimination?” [2019] (Autumn) Bar News 67.

Thew and Taylor SC, “The Pursuit of Excellence: the Bar Association’s Best Practice Guidelines” [2016] (Spring) Bar News 51.

Contributing author to Australian Master Workplace Relations Guide, CCH, 1st ed, 2006; 2nd ed, 2007; 3rd ed, 2008; 4th ed, 2009.

Contributing editor of “Discrimination in Education, Goods and Services” in Australian and New Zealand Equal Opportunity Law, CCH loose leaf service, 2009.

Contributing author to Colvin, Watson and Burns, The Workplace Relations Handbook: A Guide to the Workplace Relations Act 1996 (Cth), 2nd ed, Butterworths, 2004.


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