A SCHOOL v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND MRS J (ON BEHALF OF HERSELF AND AJ)
No. SG 45 of 1998
FED No. 1437/98
Number of pages - 23
Discrimination - Evidence - Administrative Law
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
MANSFIELD J
Discrimination - review of decision of Human Rights and Equal Opportunity Commission - allegation of discrimination in provision of educational services contrary to s 22 of Disability Discrimination Act 1992 - consideration of meaning of direct discrimination - whether definition imposes positive duty in some circumstances - whether Commission misdirected itself in finding direct discrimination under s 5 - whether Commission erred in finding indirect discrimination under s 6 - whether Commission failed to deal with a complaint of harassment under s 37.
Evidence - course of evidence and addresses - documentary evidence - whether reception into evidence of contemporaneous note without opportunity to cross-examine - rule in Browne v Dunn.
Administrative Law - procedural fairness - whether parties given opportunity to address issue of causation of loss.
Administrative Decisions (Judicial Review )Act 1977
Disability Discrimination Act 1992, ss 3, 4, 5, 6, 16(3), 17(2), 18(4), 19(2), 21(2), 22, 23(2), 24(2), 25(3), 27(3), 28(3), 37 45, 69, 76(1), 79(1), 83, 95, 98, 103, 105A
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13, applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, applied
Twist v Randwick Municipal Council (1976) 136 CLR 106, applied
O'Rourke v Miller (1984-1985) 156 CLR 342, considered
Browne v Dunn (1893) 6 R. 67, considered
Marelic v Comcare (1993) 47 FCR 437, followed
White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169, followed
Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162, considered
ADELAIDE, 15 May 1998 (hearing), 11 November 1998 (decision)
#DATE 11:11:1998
Appearances
Counsel for the Applicant: Ms L Powell QC
Solicitors for the Applicant: Mellor Olsson
First Respondent files submitting Appearance
Counsel for the Second Respondent: Mr S Tilmouth QC with him Ms S Lorenz
THE COURT ORDERS THAT:
The decision of the Human Rights and Equal Opportunity Commission ("the Commission") that the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and that the School was responsible for a specified percentage of any damages suffered by AJ, be set aside.
2. The question of whether the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and the determinations which might then be made if such discrimination is made out, be referred back to the Commission for rehearing in accordance with these reasons.
The Commission hear and determine the complaint of harassment in breach of s…
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- Case
- [1998] FCA 1437
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to resolve were whether the school had directly discriminated against AJ and whether the school was liable for any damages resulting from such discrimination. The court also had to determine if the school had harassed AJ as alleged. The court needed to interpret and apply the relevant sections of the Disability Discrimination Act 1992 (Cth) to these allegations.
In its reasoning, the court found that there were errors in the Commission’s approach to the legal principles applicable to the case, particularly in relation to the interpretation of the statutory provisions. The court held that the Commission had misinterpreted the law and failed to adequately consider the evidence presented. Consequently, the court decided to set aside the Commission's decision and refer the matter back to the Commission for rehearing, with specific directions to address the identified errors. The court also directed that the Commission should hear and determine the complaint of harassment in respect of the incident alleged at the start of term one in 1995.
Orders
Orders of the court
1.
The decision of the Human Rights and Equal Opportunity Commission ("the Commission") that the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and that the School was responsible for a specified percentage of any damages suffered by AJ, be set aside.
2. The question of whether the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and the determinations which might then be made if such discrimination is made out, be referred back to the Commission for rehearing in accordance with these reasons.
The Commission hear and determine the complaint of harassment in breach of s 37 of the Disability Discrimination Act 1992 (Cth) in respect of the incident alleged at the start of term one in 1995.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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