Burns v Media Options Group Pty Ltd
[2013] FCCA 79
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BURNS v MEDIA OPTIONS GROUP PTY LTD & ORS | [2013] FCCA 79 |
| HUMAN RIGHTS – Disability discrimination – sex discrimination – carers’ and family responsibilities. |
| Australian Human Rights Commission Act 1986, ss.46PH, 46PN, 46PO, 46PR Federal Magistrates Court Amendment Rules 2012 (No.1) (SLI.No 94 of 2012) Occupational Health and Safety Act (NSW), s.8 |
| Achal v Electrolux Pty Ltd (1993) 50 IR 236 Alexander v Home Office [1988] 2 All ER 118 Butterworths, Cross on Evidence, vol 1 (at 148) |
| Applicant: | LES ALAN BURNS |
| First Respondent: | MEDIA OPTIONS GROUP PTY LTD |
| Second Respondent: | BHASKAR DATTA |
| Third Respondent: | ANJILA DATTA |
| File Number: | SYG 2211 of 2010 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 3 – 6, 17, 20, 23 May, 15 – 19 August, 12 September, 18 November 2011 |
| Date of Last Submission: | 20 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Edwards |
Solicitors for the Applicant: | Adams & Partners Lawyers |
| Counsel for the Respondents: | Mr A Singh |
Solicitors for the Respondents: | Rajesh Chand & Associates |
ORDERS
The respondents to pay the applicant $81,213.46 as damages for breach of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth).
Pursuant to s.76(3)(d) of the Federal Circuit Court of Australia Act 1999 (Cth), the respondents to pay the applicant $25,000 as interest to the date of judgment.
The respondents to pay to the applicant interest on the judgment amount pursuant to s.77(3) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.39.06 of the Federal Court Rules 2011 (Cth).
CERTIFICATION
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the proceedings reasonably required the employment of an advocate by the applicant.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2211 of 2010
| LES ALAN BURNS |
Applicant
And
| MEDIA OPTIONS GROUP PTY LTD |
First Respondent
| BHASKAR DATTA |
Second Respondent
| ANJILA DATTA |
Third Respondent
REASONS FOR JUDGMENT
I. INTRODUCTION AND BACKGROUND
I.I Introduction
I.II About this Judgment
I.III The “Gateway” to the Applicant’s Submissions
I. IV Relevant Background
I.V Application to the Court
I.VI Relevant Law
I.VII Jurisdiction of the Court
I.VIII Before the Court
I.IX The Judgment: The Time Taken
II. EVIDENCE BEFORE THE COURT
II.I Affidavit and Oral Evidence
II.II Documentary Evidence
II.III Documents Filed and Relied Upon by the Applicant
II.IV Documents Filed and Relied Upon by the Respondents
III. THE APPLICANT’S “THEORY OF THE CASE”
III.I Mr Burns’ Evidence
Overtime
Leave
Ms Mezzomo’s EmploymentDiscrimination
Ms Mezzomo’s Affair and Domestic Violence
Violence and Harassment
Sexual HarassmentRacism
Counselling
“Of Various Application”
Drinking and Smoking
19 October 2005
9 November 2005 – Termination of his Employment
Following Termination of his EmploymentIII.II Mr Salmon’s Evidence
III.III Mr Mezzomo’s Evidence
III.IV Ms Regan’s Evidence
III.V Dr Parmegiani’s Evidence
IV. THE RESPONDENTS’ CASE
IV.I The Respondents’ Alleged Factual Scenario From Which Their “Theory of the Case” Emerged
IV.II The Respondents’ “Theory of the Case”
IV.III The Drafting of the Respondents’ Affidavits
IV.IV The Respondents’ Approach to this Case
IV.V Delay
IV.VI Mrs Datta’s Evidence
Mr Gomez
Tax and PaymentOvertime
Ms Mezzomo
Mr Burns’ Performance Pre-2005
Mr Burns’ Behaviour in 2005Violence
Racism
Sexual Harassment
19 October 2005
9 November 2005 – The Termination of Mr Burns’ Employment
After the Termination of Mr Burns’ EmploymentIV.VII Mr Datta’s Evidence
The Response to Mr Burns’ Complaint to the Commission
Tax and PaymentOvertime
Cash Dealings
Ms Mezzomo
Mr Burns’ Work Prior to July 2005
Leave and AttendanceDiscrimination
Violence
Sexual HarassmentDrinking
Voir DireRacism
19 October 2005
9 November 2005 – The Termination of Mr Burns’ Employment
After the Termination of Mr Burns’ Employment
Keys and Access to Media OptionsIV.VIII Ms Chandra’s Evidence
IV.IX Mr van Laarhoven’s Evidence
IV.X Mr Blinman’s Evidence
IV.XI Mr Gaynor’s Evidence
IV.XII Mr Begley’s Evidence
Overtime and Payment
Ms Mezzomo
Mr Burns’ Behaviour in 2005Violence
Drinking
Discrimination Against Mr Burns
Mr Burns’ DismissalIV.XIII Mr Shuklar’s Evidence
V. UNDERSTANDING OF THE LAW OF EVIDENCE
V.I Category One: Relevance
Category One: Consideration
V.II Category Two: Hearsay
Category Two: Consideration
V.III Category Three: Opinions and “Hypotheticals”
Category Three: Consideration
V.IV Category Four: Credibility
Category Four: Consideration
V.V Category Five: Misleading, Unfair and Inappropriate Questioning
Category Five: Consideration
V.VI Further Basis for Objection
Further Basis for Objection: Consideration
Type One: Questions for Which Evidence was Adduced in the Applicant’s Case
Type Two: Questions to Which No Objection was Made at the Time
Type Three: Questions Which Were Objected to at the Hearing, But on a Different Basis to that Pressed in Written Submissions.
Type Four: Where Reference was Made During the Hearing and at the Time of the Objection to the Applicant’s Failure to Adduce EvidenceV.VII A General Response from the Applicant to the Respondents’ Objections
V.VIII The “Voir Dire”
V.IX Other Provisionally Admitted Evidence
Provisional Item 1: Scope of Questioning
Provisional Item 2: Misrepresentation of Evidence
Provisional Item 3: The Scope of Re-Examination on the Destruction of Wage Documents
Provisional Item 4: The Scope of Re-Examination on Tendered DocumentsV.X The Standard of Proof
V.XI Motivation of Objections: The Respondents’ Approach During the Hearing
VI. ISSUES OF CONTENTION
VI.I Breach of Contract
VI.II...... The “Principle Issues in Dispute” as Submitted by the Respondents
VI.III Matters Informing Consideration
The Scope of the Enquiry/Consideration
VII. THE CREDIBILITY OF THE WITNESSES
VII.I The Contest of Credibility: Part One
VII.II Standard of Proof – the Respondents’ View
VII.III Mr Datta and Mrs Datta
VII.IV The Contest of Credibility: Part Two
Credibility – The Importance of Context
The Quality of the Respondents’ Corroborative EvidenceVII.V Mr Burns’ Credibility
Category One: Inconsistencies in Mr Burns’ Evidence
Category Two: “I do not remember” or Words to that Effect
Category Three: Mr Burns’ Refusal to Accept Responsibility for Evidence in his Case
Category Four: “Evasive and/or Obfuscatory” Answers
Category Five: “Internal Inconsistencies” in Mr Burns’ Evidence Before the Court
Category Six: Non-Compliance with Court Orders
Category Seven: Inconsistency between Mr Burns’ Evidence and that of Other Witnesses
Further Matters
Mr Burns’ Care for Ms Mezzomo and the Impact of Ms Mezzomo’s Affair and Illness on HimVII.VI Dr Parmegiani’s Credibility
VII.VII Ms Regan’s Credibility
VII.VIII Mr Salmon’s Credibility
VII.IX Mr Mezzomo’s Credibility
VII.X Mr Datta’s Credibility
Mr Datta’s Use of Language
VII.XI Mrs Datta’s Credibility
VII.XII Ms Chandra’s Credibility
VII.XIII Mr van Laarhoven’s Credibility
VII.XIV Mr Blinman’s Credibility
VII.XV Mr Gaynor’s Credibility
VII.XVII Mr Begley’s Credibility
VIII. THE “ISSUES” AS IDENTIFIED BY THE RESPONDENTS
VIII.I Issue One (R): The Applicant’s Consumption of Alcohol at Work and/or Whether he Arrived at Work Intoxicated in 2005.
Issue One (R): The Respondents
Issue One (R): The Applicant
Issue One (R): ConsiderationVIII.II Issue Two (R): The Applicant’s “violent / aggressive temperamental / volatile / argumentative / stubborn / combative / assertive / dominating / easily provoked” Behaviour at Work
Issue Two (R): The Respondents
Issue Two (R): The Applicant
Issue Two (R): The ConsiderationVIII.III Issue Three (R): “When did the applicant’s behaviour deteriorate and [his] attendance [at work] become unreliable?”
Issue Three (R): The Respondents
Issue Three (R): The Applicant
Issue Three (R): ConsiderationVIII.IX Issue Four(R): “Was Vivian Mezzomo an employee of the first respondent?”
Issue Four (R): The Respondents
Issue Four (R): The Applicant
Issue Four (R): ConsiderationVIII.V Issue Five (R): “When did Phillip Blinman commence employment?”.........
Issue Five (R): The Respondents
Issue Five (R): The Applicant
Issue Five (R): ConsiderationVIII.VI Issue Six (R): “Overtime”
Issue Six (R): The Respondents
Issue Six (R): The Applicant
Issue Six (R): ConsiderationVIII.VII Issue Seven (R): “Evidence about the $4012.81 deposit on 7 February 2005.”
Issue Seven (R): The Respondents
Issue Seven (R): The Applicant
Issue Seven (R): ConsiderationVIII.VIII Issue Eight (R): “Did the applicant engage in sexual harassment at the workplace?”
Issue Eight (R): The Respondents
Issue Eight (R): The Applicant
Issue Eight (R): ConsiderationVIII.IX Issue Nine (R): “Did the applicant make racist comments at the workplace?”
Issue Nine (R): The Respondents
Issue Nine (R): The Applicant
Issue Nine (R): ConsiderationVIII.X Issue Ten (R): “Did the second respondent make a comment about ‘rough sex’?”
Issue Ten (R): The Respondents
Issue Ten (R): The Applicant
Issue Ten (R): ConsiderationVIII.XI Issue Eleven (R): “Did the second respondent tell the applicant to leave or get rid of Ms Mezzomo and make inappropriate comments about Vivian Mezzomo?”
Issue Eleven (R): The Respondents
Issue Eleven (R): The Applicant
Issue Eleven (R): ConsiderationVIII.XII Issue Twelve (R): “Was the applicant discriminated against in relation to his working hours?”
Issue Twelve (R): The Respondents
Issue Twelve (R): The Applicant
Issue Twelve (R): ConsiderationVIII.XIII Issue Thirteen (R): “What happened on 19 October 2005?”
Issue Thirteen (R): The Respondents
Issue Thirteen (R): The Applicant
Issue Thirteen (R): ConsiderationVIII.XIV Issue Fourteen (R): “The period Monday, 24 October 2005 to Tuesday, 8 November 2005”
Issue Fourteen (R): The Respondents
Issue Fourteen (R): The Applicant
Issue Fourteen (R): ConsiderationVIII.XV Issue Fifteen (R): “When did Stewart Webb commence work for the first respondent?”
Issue Fifteen (R): The Respondents
Issue Fifteen (R): The Applicant
Issue Fifteen (R): ConsiderationVIII.XVI Issue Sixteen (R): “The termination of the applicant[‘s employment]”
Issue Sixteen (R): The Respondents
Issue Sixteen (R): The Applicant
Issue Sixteen (R): Consideration
The Letter of Termination
The Letter of Reply to the Commission
Drinking of AlcoholSmoking
Physical Violence Against Four Staff Member
Verbal and Sexual Harassment
Racial Abuse
Bullied staff
IX. THE DISPOSITION OF THE APPLICANT’S CLAIMS
IX.I Consideration
IX.II Claim One (A): Mr Datta told Mr Burns that he should leave, or get rid of, Ms Mezzomo
IX.III Claim Two (A): Mr Datta pressured Mr Burns to come to work and not leave until he had finished the tasks allocated to him
IX.IV Claim Three (A): Mr Datta told Mr Burns that he should not stay home to care for Ms Mezzomo
IX.V Claim Four (A): Mr Datta berated Mr Burns for being late to work
IX.VI Claim Five (A): Mr Datta berated Mr Burns for not being available to work overtime
IX.VII Claim Six (A): Mr Datta made derogatory comments about Ms Mezzomo
IX.VIII Claim Seven (A): Mr Datta refused to give Mr Burns time off to care for Ms Mezzomo
IX.IX Claim Eight (A): Mr Datta berated, and abruptly terminated, phone calls from Mr Burns seeking leave to look after Ms Mezzomo
IX.X Claim Nine (A): Mr Datta demoted Mr Burns when he took time off without approval to care for Ms Mezzomo
IX.XI Claim Ten (A): Mr Datta terminated Mr Burns’ employment for reasons that were fabricated and did so with two police officers in attendance
IX.XII Claims Eleven to Fifteen (A)
IX.XIII Claim Eleven (A): Mrs Datta told Mr Burns that he was stupid
IX.XIV Claim Twelve (A): Mrs Datta told Mr Burns that she was sick of his problems
IX.XV Claim Thirteen (A): Mrs Datta told Mr Burns that he had cost them money because of Ms Mezzomo
IX.XVI Claim Fourteen and Fifteen (A): Mrs Datta told Mr Burns that his work should come before Ms Mezzomo and Mrs Datta Asked Mr Burns why he would take care of Ms Mezzomo
IX.XVII Claim Sixteen (A): Media Options and Mr Datta imposed a requirement on Mr Burns that he take leave at times determined by Media Options and himself
IX.XVIII Claim Seventeen (A): Media Options and Mr Datta imposed a requirement that Mr Burns be available to work the same overtime that he had worked prior to Ms Mezzomo’s illness
IX.XIX Was the Respondents’ Conduct Discriminatory?
IX.XX Breach of Contract
X. OTHER RELEVANT MATTERS
X.I The Liability of Media Options
X.IIMatters Relevant to s.46PN of the AHRC Act
XI. DAMAGES
XI.I The Submissions
The Applicant
The RespondentsXI.II The Consideration
Interest
General Damages
Aggravated Damages
Exemplary Damages
XII. Other Relief Sought
I. INTRODUCTION AND BACKGROUND
I.I Introduction
This case involved fourteen days of hearing, produced a mountain of documentary material and a large number of claims and, in particular, an even larger number of counter-claims.
The applicant, Mr Les Burns, claims discriminatory treatment on the part of his former employers in 2005, both as to their conduct towards him while employed, and in the termination of his employment.
Mr Burns’ case is simple. At sometime in mid-2005 his then partner, Ms Vivian Mezzomo, became ill with a rare form of cancer which necessitated intensive medical treatment over a relatively short period of time. That included many rounds of chemotherapy. As the only person available to care for Ms Mezzomo and attend to her needs, including her need to undergo multiple medical appointments and dealing with her physical and emotional reaction, Mr Burns was under great pressure in attending to his work duties while addressing Ms Mezzomo’s care needs.
He alleges that his employers provided no flexibility to him in meeting these needs. Amongst other things, this had an impact on his income. He says that this occurred in circumstances where they discriminated against him. When viewed in the context of his family and carer responsibility this amounted to discrimination under the Disability Discrimination Act 1992 (Cth) (“DDA”) and the Sex Discrimination Act 1984 (Cth) (“SDA”) (Specifically, ss.5, 6 and 15 of the DDA and ss.7A and 14 of the SDA). This discrimination extended to the termination of Mr Burns’ employment.
The respondents (the first respondent, Media Options – the company which employed Mr Burns, the second respondent, Mr Bhaskar Datta –the driving force in the business of the company and the third respondent, Mrs Anjila Datta – Mr Datta’s wife) rejected Mr Burns’ claims. Further, they sought to explain the relevant events of 2005 by making a number of counter allegations against Mr Burns.
These included that Mr Burns made racial comments, physically and verbally abused staff, sexually harassed staff, was violent, engaged in bullying behaviour, consumed alcohol at work, including while working with machinery, and smoked at work.
The respondents rely on what they say was the coherent and consistent evidence from a large number of witnesses, which was said to be mutually corroborative, in contrast to what they said was Mr Burns’ evasive, vague and largely uncorroborated evidence, to press the Court to dismiss the application.
As the judgment below will reveal, such a position, while perhaps borne out of hope at the commencement of these proceeding, could not be maintained after any plain reading of the evidence ultimately put before the Court.
What the respondents see as evasive and vague in Mr Burns’ evidence, I see generally as being consistent with the vagaries of memory over some years. Including, the trauma of the undisputed events of 2005 and subsequent years, involving, amongst other things and over a short period of time, the death of Mr Burns’ partner, mother and father. This was, again, generally in contrast to the respondents’ evidence, particularly that of Mr Datta, who even when confronted with the inconsistencies in his own evidence, let alone the inconsistencies in his so-called “corroborations”, refused by and large to acknowledge what was plainly otherwise obvious. Where he did so acknowledge, that acknowledgement was grudging and/or equivocal.
Both parties sought to make the disposition of this case a contest of credibility. For the reasons that follow, that contest, overwhelmingly, must go to the applicant. That the respondents could press such a submission following the hearing, and with the benefit of the Transcript of the hearing provided to them by the Court, is a matter for them and their legal advisers.
Finally, a note must be made of the way the respondents chose to conduct their case before the Court. For example, as will be seen, constant and persistent interruptions to cross-examination based on various views of relevant law and practice was inimical to the efficient and appropriate conduct and disposition of these proceedings.
I.II About this Judgment
The parties took very different, if not diametrically opposed, approaches to the admission of evidence, both oral and documentary, before the Court. It is important to note this for the purposes of understanding as to how this has affected the construction and presentation of this judgment.
By and large, the applicant’s approach was to allow evidence in without objection, although objection was taken at some critical points. The stated intention was to then deal with that material in submissions and to argue for such issues as relevance and weight at that time. The respondents’ approach can best be summarised as: “Object now, think later”.
In relation to the construction of this judgment, note must also be made of the circumstances surrounding the giving of post-hearing written submissions. At the conclusion of the last day of the hearing, a timetable was set for the applicant to make written submissions, the respondents to make written submission in reply, and for the applicant to make further written submissions in final reply. Arrangements were made to provide both parties with a full set of transcription of the hearing to facilitate this process (see immediately below under the heading “I.III The ‘Gateway’ to the Applicant’s Submissions” for further detail).
The applicant did not make his submissions within the time provided by the Courts orders (see further below under “I.III The Gateway to the Applicant’s Submissions”). Following the expiration of that time, the applicant sought an amendment to the timetable. In effect, to extend time within which the written submissions could be made. This was vigorously opposed by the respondents.
While this period coincided with the applicant withdrawing his instructions from his solicitor and seeking to engage another solicitor, no satisfactory explanation was presented to the Court as to why no approach was made, at least, within time to extend time.
In any event, I agreed with the respondents and refused the applicant’s application. The consequence of this was that the respondents’ written submissions were not in character submissions in reply to the applicant’s submissions, but rather addressed a broad range of factors which focussed on what can be described as the respondents’ “counter claims”. The subsequent submissions from the applicant therefore were, to a great extent, shaped by this.
The consequence for the Court was that the focus was shifted from the applicant’s actual case, and claims, to the respondents’ counter claims about the applicant’s claimed conduct. That is, the claims of his behaving in a threatening, bullying, racist manner and the like. Such an approach by the respondents was plainly put, in part, to seek to explain the occurrence of certain events but also to portray the applicant in a particular adverse light. While some of this focus was on the issue of the credibility of the applicant’s evidence, at times, the approach was also to portray the respondents’ as “blameless” and the victims of the applicant’s capriciousness.
What was perhaps not understood by the respondents’ is that, even if the Court were to accept that the applicant had behaved “badly”, apart from some possible impact on questions of credibility, this did not mean that the Court was also precluded from finding that they also had behaved “badly” in the sense that while some of their conduct could have, theoretically, been seen as a reaction to the applicant’s conduct, they nonetheless acted, at least at critical times, in such a way as to enable findings that result in the applicant’s case being made out within the relevant statutory framework.
What cannot be forgotten in these proceedings is that the ultimate determinations required of the Court are those relating to the applicant’s statement of claim. The respondents’ strategy seeking to portray the applicant in a poor light can only go so far. Ultimately, they cannot divert attention away from the statement of claim.
Whatever the motives here, the elements above have had a particular impact on the structure of this judgment which requires exposure.
First, as will be seen below, particular sections have focused on, and dealt with, the applicant’s evidence. For examples “II.III Documents Filed and Relied Upon by the Applicant”. It was not necessary to set out a corresponding section for the respondents’ as the large part of their evidence was admitted without objection.
Second, the applicant’s intention, as expressed at the conclusion of hearing, was frustrated by the events outlined at [15] – [17] above. This has required a greater exposition of “claim” and “counter-claims”, also referred to above, than might otherwise have been necessary.
Third, despite what is set out at [18] – [20] above, some considerable attention has been given in this judgment to the respondents’ “counter-claims”, if for no other reason than the respondents are entitled to be heard and their case examined. But, it is as a case in reply to the applicant’s allegations that the Court must then, ultimately, turn to consider their submissions and arguments.
Fourth, the parties’ concerted attack on each other’s credibility, and the way their respective arguments were ultimately presented, required a separate focus on the respective questions of credibility to that of dealing with specific relevant incidents. To the extent that these conceptually greatly overlap, this leads to some unfortunate, but necessary, repetition.
I.III The “Gateway” to the Applicant’s Submissions
In accordance with the timetable set on the final hearing day (18 November 2011), the applicant’s written submissions were due to be filed on or before 24 February 2012. The applicant failed to make submissions in accordance with that timetable.
On 21 February 2012 the applicant’s solicitors, Boulevarde Lawyers, filed a notice of withdrawal of appearance. On 28 February 2012, after the deadline for the filing of written submissions, Adams & Partners Lawyers filed a notice of appearance.
Correspondence was received from the applicant’s solicitors, by email to Chambers, on 21 March 2012. The applicant sought that the timetable for the filing of documents be extended. That application was listed for an interlocutory hearing on 27 March 2012.
The application to vary orders made on 18 November 2011 and extend time for the filing of written submissions was refused on 27 March 2012. At that time, in the course of an interlocutory hearing, reasons were given. Broadly, and in summary, the Court was not satisfied by the adequacy of the applicant’s explanation and reasons for the delay in the filing of written submissions in accordance with the timetable in circumstances where the applicant took some three weeks before making an application to the Court following the expiry of the timetable for that filing. That is, the applicant’s solicitors took no action in relation to this matter after they came onto the record following the withdrawal of the applicant’s original solicitors.
In accordance with the original timetable, the applicant had leave to file submissions in reply, limited in scope to what had been canvassed by the respondents in written submissions.
The respondents submitted that if the applicant’s submission in reply turned out to be a “backdoor” means of putting their initial submissions before the Court, the Court should disregard those submissions. At that time, I made clear that the applicant’s submissions were limited to submissions in reply and that, in that regard, much depended on what the respondents put in their submissions. In particular, that submissions in reply should not be used as an opportunity to circumvent, and to make up for, the opportunity provided for by initial written submissions, which was given to the applicant and that, for whatever reason, he chose not to take up.
However, in this regard, I note in particular [16] of the respondents’ written submissions:
“It is not appropriate or realistically possible to address every fact or issue that has arisen in these proceeding over 14 days in these submissions. These submissions are made on the following basis:
…
(c) Where a fact or issue has not been specifically addressed, it should be assumed, consistent with the respondents’ position during the course of these proceedings, that that issue or fact is not relevant; or if it is relevant then no weight should be given to it.”
In my view, therefore, through this passage, the respondents have provided a “gateway” for the applicant to expand upon what may otherwise have been the acceptable scope of submissions in reply. That is, the respondents’ submissions at this point open the scope of the applicant’s submissions in reply so that any submission made by the respondent during the course of the hearing as to a fact or issue, even if not addressed in their written submissions, could be addressed by the applicant in their written submissions in reply.
I. IV Relevant Background
This is an application, filed on 13 October 2010, under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). This follows termination of the applicant’s complaint by a delegate of the President of the Australian Human Rights Commission (“the Commission”), pursuant to s.46PH(1) of the AHRC Act, on 20 August 2010 as there was no reasonable prospect of the matter being settled by conciliation.
The applicant, Mr Burns, who was at the relevant times a printer employed by the first respondent, Media Options Group Pty Ltd (“Media Options”), complained to the Commission in relation to events occurring during the course of, and the termination of, his employment at Media Options between June and November 2005. Mr Burns had been an employee of Media Options since March 2003.
The first respondent is a printing company. The second respondent, Mr Datta, was Mr Burns’ direct supervisor at Media Options and was employed by the Directors of Media Options to run the company. The third respondent, Mrs Datta, was an employee of Media Options and the wife of Mr Datta. Subsequent to Mr Burns’ employment being terminated, both Mr Datta and Mrs Datta have been appointed as Directors of Media Options.
The applicant’s complaint to the Commission alleged discrimination on the grounds of sex discrimination (on the basis of family responsibilities) and disability discrimination (on the basis of being an associate of a person with a disability, which for the purposes of this judgment is referred to as “carer responsibilities”). The complaint at termination continued to encompass both of these claims.
The applicant’s complaint to the Commission can be broadly summarised as follows:
a)In or around March 2003 the applicant was offered, and accepted, permanent full-time employment at Media Options. The terms of that employment were agreed verbally, and included that the applicant would receive a base salary based on him working 40 hours a week at a rate of $33.20 per hour. In addition, the applicant would be paid overtime at a rate of $35 per hour and his partner, Ms Mezzomo, would also be offered full-time employment with Media Options.
b)The applicant’s work at Media Options was recognised in various ways, including by Mr Datta giving him an all-expense paid holiday to Fiji for two weeks in December 2003 and a cash bonus of $2,500 in December 2004.
c)On or around 2 June 2005 Ms Mezzomo became unwell and was hospitalised. The applicant took time off work to look after her on that occasion. She was again hospitalised on or around 10 June 2005. The applicant did not take time off work on that occasion. Rather, he visited Ms Mezzomo before and after work. [Note that dates were “amended” during subsequent evidence.]
d)On or around 17 June 2005, Ms Mezzomo was diagnosed with cancer. The applicant informed the respondents of this. Following that time, she was too ill to continue her employment with Media Options. Further, from that time onwards, Mr Datta engaged in unfair, detrimental and/or harassing treatment towards the applicant. This included him telling the applicant, at least weekly, to “get rid of” Ms Mezzomo and pressuring the applicant to do overtime.
e)Towards the end of October 2005 Ms Mezzomo became very unwell and needed constant care. The applicant advised Mr Datta, by telephone, that he needed time off to care for Ms Mezzomo. Mr Datta terminated that telephone conversation. He terminated the four subsequent telephone conversations made by the applicant and the applicant was unable to finish his request for time off.
f)The applicant again attempted to request time off on 28 October 2005. Again, Mr Datta terminated that telephone conversation.
g)On 4 November 2005 Mr Begley, an employee at Media Options, visited Mr Burns at his home and told Mr Burns that Mr Datta had said that he had resigned as any leave of absence from work was subject to Mr Datta’s approval. The applicant telephoned Mr Datta and advised that he had not resigned. Mr Datta indicated that he would call the applicant back. He did not do so.
h)On or about 7 November 2005 the applicant attended at Media Options. He was berated for allowing his work in the factory to fall behind. The applicant was told that changes would be made to his shifts and that he should return home and should telephone the following day regarding his shifts. The applicant contacted Mr Datta the following day, but Mr Datta indicated that the applicant’s shifts had not yet been worked out. Mr Datta terminated the call.
i)On or about 9 November 2005 the applicant attended at Media Options for the purpose of speaking to Mr Datta about his shifts. Again, Mr Datta berated him for taking time off work. He said words to the effect of” “You are no longer the manager of the printing in this factory; I have replaced you with Phil Blinman. We are not going to be flexible with your shifts. You are to work whatever you are given”. Mrs Datta also “yelled” at the applicant and said words to the effect: “I am sick of your problems, I have had enough of you, you have cost us $100,000.00 because of that Vivien. I am so sick of you. Your work should come before your wife. You’re stupid. Why would you care about her?” Mr Datta then told the applicant that he had a 12 hour shift on Sunday, but that he would not be given keys to the factory. Rather, he would have to wait for Mr Datta to attend at the factory to gain access. The applicant considered this to be a “demotion” in the status of his employment.
j)Following the conversation with Mr Datta and Mrs Datta, the applicant went to speak to a colleague in another building also occupied by the business of the first respondent. Approximately an hour later, Mr Datta approached the applicant with two police officers and informed the applicant that his employment had been terminated. He was given a letter which stated that, amongst other things, he had been drunk on the job, had sexually harassed a colleague and had been verbally and physically threatening towards several staff members. He was escorted from the premises by the police officers.
For further detail as to the applicant’s complaint to the Commission, see generally below. I note that the applicant’s assertions in that complaint were, for the most part, the subject of dispute before this Court.
I.V Application to the Court
The application to the Court complains of unlawful discrimination in relation to sex and disability.
The grounds of the applicant’s application to the Court, set out in a Statement of Claim (filed at the same time as the application) at [1] to [25], mirror the claims made to the Commission, noting additionally that, in general, the applicant was paid “not less than approximately $54,600.00 per annum net of tax” in overtime that he was directed to work.
The applicant’s claims, as set out in his Statement of Claim, can be seen as follows:
a)Direct Discrimination
i)From on or about 2 June 2005 Mr Datta engaged in unfavourable treatment, including:
ii)Telling Mr Burns he should leave, or get rid of, “his wife”.
iii)Pressuring Mr Burns to attend work and telling him not to leave until he had finished the allocated tasks.
iv)Telling Mr Burns not to stay home to care for “his wife”.
v)Berating Mr Burns for being late.
vi)Berating Mr Burns for not being available for overtime.
vii)Making derogatory comments about Ms Mezzomo.
viii)Refusing to give Mr Burns time off to care for Ms Mezzomo.
ix)Berating Mr Burns, and terminating telephone calls, when he was seeking leave to care for Ms Mezzomo.
x)Demoting Mr Burns when he took time off to care for Ms Mezzomo without approval.
xi)Terminating Mr Burns’ employment, with police officers in attendance, on or about 9 November 2005 for reasons that were fabricated.
b)2) Disability Discrimination: In addition to the matters in (1), on or about 9 November 2005 Mrs Datta engaged in unfavourable treatment, including:
i)Telling Mr Burns he was stupid.
ii)Telling Mr Burns she was sick of his problems.
iii)Telling Mr Burns he had cost them money because of Ms Mezzomo.
iv)Telling Mr Burns his work should come before Ms Mezzomo.
v)Asking Mr Burns why he would take care of his “wife”.
3) Sex Discrimination: Relying on the same facts and matters as at (1) and (2) above.
I.VI Relevant Law
The applicant relies on ss. 5, 6, 15 of the DDA, and ss. 7A and 14 of the SDA.
At the relevant time, s.5 of the DDA provided:
“Disability Discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability”
[Emphasis in the original.]
At the relevant time, s.6 of the DDA provided:
“Indirect Disability Discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
[Emphasis in the original.]
At the relevant time, s.15 of the DDA provided:
“Discrimination in Employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates.
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
(4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.”
[Emphasis in the original.]
For the purposes of s.15, “associate” was defined in s.4 of the DDA as:
“Interpretation
(1) In this Act, unless the contrary intention appears:
…
associate, in relation to a person, includes:
(a) a spouse of the person; and
(b) another person who is living with the person on a genuine domestic basis; and
(c) a relative of the person; and
(d) a carer of the person; and
(e) another person who is in a business, sporting or recreational relationship with the person.
…”
[Emphasis in the original.]
At the relevant time, s.7A of the SDA provided:
“Discrimination on the ground of family responsibilities
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:
(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
(b) the less favourable treatment is by reason of:
(i) the family responsibilities of the employee; or
(ii) a characteristic that appertains generally to persons with family responsibilities; or
(iii) a characteristic that is generally imputed to persons with family responsibilities.”
[Emphasis in the original.]
At the relevant time, s.14 of the SDA Provided:
“Discrimination in employment or in superannuation
(1)It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy:
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, marital status, pregnancy or potential pregnancy:
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Nothing in paragraph (1)(a) or (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s sex, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
(3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.
(4) Where a person exercises a discretion in relation to the payment of a superannuation benefit to or in respect of a member of a superannuation fund, it is unlawful for the person to discriminate, in the exercise of the discretion, against the member or another person on the ground, in either case, of the sex or marital status of the member or that other person.
(5) Subsection (4) does not apply if section 41B applies to that member in respect of that fund.
(6) In this section:
member, in relation to a superannuation fund, includes a person who has been a member of the fund at any time.”
[Emphasis in the original.]
For the purposes of s.7A, “family responsibilities” is defined in s.4A of the SDA as:
Meaning of family responsibilities
(1) In this Act, family responsibilities, in relation to a person, means responsibilities of the person to care for or support:
(a) a dependent child of the person; or
(b) any other immediate family member who is in need of care and support.
(2) In this section:
child: without limiting who is a child of a person for the purposes of this section, each of the following is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
de facto partner has the meaning given by the Acts Interpretation Act 1901.
dependent child means a child who is wholly or substantially dependent on the person.
immediate family member includes:
(a) a spouse of the person; and
(b) an adult child, parent, grandparent, grandchild or sibling of the person or of a spouse of the person.
parent: without limiting who is a parent of a person for the purposes of this section, someone is the parent of a person if the person is his or her child because of paragraph (b) of the definition of child in this subsection.
spouse includes a former spouse, a de facto partner and a former de facto partner.
stepchild: without limiting who is a stepchild of a person for the purposes of this section, someone is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.
(3) For the purposes of this section, if one person is the child of another person because of paragraph (b) of the definition of child in subsection (2), relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
[Emphasis in the original.]
I.VII Jurisdiction of the Court
In the “Points of Defence”, annexed to the respondents’ Response (filed on 17 December 2010), the respondents noted that the applicant previously lodged an application with the Australian Industrial Relations Commission (“AIRC”) against the first respondent in relation to the termination of his employment. It appears that that application was terminated on 16 January 2006 for want of appearance. The respondents stated that, by reason of this dismissal, the applicant is precluded from making an application to this Court.
The issue of jurisdiction was not subsequently raised by the respondents, either during the course of the hearing, or in written submissions.
In the absence of any further particularity it is unclear on what basis such a statement was made. The respondents have not made a claim that the applicant is precluded from making his application by way of res judicata. Nor was there any suggestion of issue estoppel.
In the absence of anything further, and as the issue does not appear to have been pressed subsequently, I have proceeded on the basis that this Court does have jurisdiction, in the circumstances, stemming from s.46PO of the AHRC Act.
I.VIII Before the Court
I should note that, given the length of the hearing (14 days, with some of those days extending beyond normal sitting hours), and the time over which the hearing days were spread (some six months, with additional time for written submissions), the parties were provided with a copy of the Transcript of the hearing after the date of the last hearing and in anticipation that the Transcript would be used to assist in written submissions.
References below, therefore, to “T” refer to a day of the hearing (that is, “T12” refers to day 12 of the hearing, being 19 August 2011). The following number refers to the page number of that transcript (that is, “T12-52” refers to page 52 of the transcript for day 12). [I note in this regard that the transcripts for each day provided to the Court by Auscript do not all commence at page “1”. For the purposes of this judgment, page numbers as provided by Auscript have been adopted.] Where there are a third set of numbers, these refer to the relevant line numbers of the transcript (thus “T12-52 7 – 23 is a reference to
lines 7 – 23 of page 52 of the transcript of day 12 of the hearing).
At the hearing before the Court the applicant was represented by Ms K Edwards of counsel. The respondents were represented by Mr A Singh of counsel.
I.IX The Judgment: The Time Taken
Some time has elapsed since the hearing of evidence on the first day of hearing in these proceedings and the handing down of judgment. While a lesser time, some 17 months, have elapsed since the last day of hearing of evidence.
It was impractical to commence consideration and drafting of this judgment prior to receiving written submissions from the parties. This consideration commenced in earnest after the receipt of the applicant’s written submissions in reply on 20 April 2012. In these circumstances, some 11 months have elapsed. This judgment was not drafted over one uninterrupted period. Such a course would have required about four or five months out of Court given the large volume of material generated in these proceedings.
In these circumstances, I am mindful of what the High Court said, relevantly, and for example, in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 80 ALJR 367; 223 ALR 171 (“NAIS”), concerning delay and, in particular, in matters involving credibility findings.
In SZKJV v Minister for Immigration and Citizenship [2011] FCA 80, Reeves J (at [33]) “summarised” NAIS in the following terms:
“In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error.”
While the Courts in both cases were concerned with credibility findings and “delay” in administrative decision, I respectfully understand the principle enunciated there to apply to judicial consideration.
As set out above, the parties have urged and the Court is required to determine many issues of contention in these proceedings based on, or arising from, what I have described elsewhere in this judgment as the “contest of credibility” between the respondents’ witnesses on the one hand and Mr Burns on the other.
As also noted immediately above, NAIS was, relevantly, concerned with adverse credibility findings based solely, or significantly, on demeanour combined with a lengthy delay in delivering the decision. In that case, it was some 2 years from the second occasion of the hearing. I note the period in the current case is not that long. The credibility findings expressed in this judgment, including both positive and adverse findings, did not emanate from the demeanour of the witnesses in the giving of their evidence. Rather, given the circumstances outlined above, they emanate from a reading of the transcript as to what was actually said and, in context of the parties’ respective written submissions, and as that evidence compares to evidence given initially by affidavit.
EVIDENCE BEFORE THE COURT
II.I Affidavit and Oral Evidence
The evidence before the Court, at first instance, was given by affidavit.
The following persons gave evidence:
a)For the applicant:
i)Les Alan Burns – the applicant.
ii)John Mezzomo – the father of Ms Vivian Mezzomo, the applicant’s late “de facto” partner.
iii)Carol Anne Ragen – the applicant’s sister.
iv)Dr Julian Parmegiani – a psychiatrist who completed a medico-legal assessment of Mr Burns.
v)Mr Michael Salmon – the applicant’s current supervisor at “Labelcraft”.
vi)Steven Connolly – the applicant’s (former) solicitor [evidence given by affidavit only].
b)For the respondents:
i)Bhaskar Datta – the second respondent, the applicant’s direct supervisor at Media Options and employed by the board of Media Options to run the company. Subsequently appointed as a Director of Media Options.
ii)Anjila Datta – the third respondent, the wife of Mr Datta and an employee of Media Options. Subsequently appointed as a Director of Media Options.
iii)Amy Chandra – the account manager of Media Options and Mrs Datta’s sister.
iv)Warren Christopher Gaynor – production manager employed by Media Options.
v)Mark van Laarhoven – information technology manager formerly employed by Media Options.
vi)Narendra Shukla – former director of Media Options and Mr Datta’s brother.
vii)Phillip Noel Blinman – printer formerly employed by Media Options and currently a director of Prolith International Pty Ltd, a company which does some business with Media Options (T3-275 to T3-276).
viii)David Jones Begley – printer employed by Media Options
ix)Rajesh Chand – the respondents’ solicitor [evidence by affidavit only].
In addition, I note that the spelling of the names of some individuals is not consistent across the Transcript. Where there is any variation in the spelling of a name of an individual, for the purposes of this judgment (and with the exception of Mr van Laarhoven[1]), the spelling used in that individual’s affidavit has been adopted and used consistently throughout the judgment. Further, in the absence of an affidavit, where there is an inconsistency in the spelling of a name the spelling adopted in this judgment will be as per the pay records provided by Media Options (for example, see the applicant’s written submissions at [187](b)(iii) in relation to Mr Subash Vadapally (misspelt in the Transcript as “Vadapaly”)).
[1] Mr van Laarhoven’s name is recorded on his affidavit as “MARK VAN LAHOVEN”. However, in examination-in-chief, he gave evidence that his surname was spelt “L-a-a-r-h-o-v-e-n” (T7-728 10).
II.II Documentary Evidence
In addition, a number of documents were tendered as exhibits before the Court. For the sake of ease of reference and clarity, they are tabulated below:
| Exhibit # | Description |
| AE1 | Response to, and comments on, Mr Burns’ complaint to the AHRC signed by Mr Datta and Mrs Datta and dated 11 July 2010. |
| AE2 | Subpoenaed medical documents up to, and including, 9 November 2005, and a Summary Table prepared by Mr Connolly (SC18 to the Affidavit of Mr Connolly). |
| AE3 | Subpoenaed medical documents from, and including, 9 November 2005, and a Summary Table prepared by Mr Connolly (SC18 to the Affidavit of Mr Connolly). These documents were provisionally admitted subject to submissions going to the issue of whether or not the “carers’ responsibility” provision looks forward to the future, and not just to what has happened in the past. In oral submissions, the applicant submitted that this approach falls from a natural reading of the relevant legislation (T1-63 31 – 32). Written submissions did not canvass this issue. While I accept that legislation should be construed beneficially and not narrowly (Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J (Deane J agreeing), 372 per Brennan J, 394 per Dawson and Toohey JJ, 406-407 per McHugh J, Australian Iron & Steel v Banovic (1989) 168 CLR 165 at 196-197 per McHugh J, Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 332 per Kirby J, New South Wales v Amery (2006) 230 CLR 174 at 215 per Kirby J, Baird v Queensland (2006) 156 FCR 451 at 468 per Allsop J (Spender J agreeing)), having regard to the relevant legislation, I have difficulty in seeing that the applicant’s preferred interpretation does in fact arise from a natural reading of that legislation. Indeed, it is, to some extent, unclear as to how such an interpretation could be said to arise at all, given that such future events cannot be said to have informed the respondents’ actions at some prior time. In this regard I note also that the relevant explanatory memoranda are unhelpful on this point. I accept, however, that this evidence may be relevant to the issue of damages. The documents are admitted for that limited purpose. |
| AE4 | Consultation notes made by Dr Parmegiani dated 1 September 2010. |
| AE5 | A red envelope with “Vivien” written on it. |
| AE6 | A registered post envelope addressed to “Baska Datta, Media Options Group”, marked Return to Sender (as unclaimed) on 3 January 2007, and sent by Mr Burns. Letter addressed to Mr Datta, signed by Mr Burns, dated 28 November 2006. |
| AE7 | Time sheet summary for Mr Burns for the period 29 September 2003 to 5 October 2003. |
| AE8 | Psychiatric report relating to Mr Burns by Dr Alex Sharah, dated 14 May 2005. |
| AE9 | Home Loan Variation Agreement for Mr Burns and “Miss” Mezzomo of disclosure date 27 September 2005. |
| AE10 | Invoice from the Ambulance Service of New South Wales addressed to “Mrs” Mezzomo, dated 30 August 2005. |
| AE11 | Notice of Legal Action from Macquarie Collections Group, on behalf of Healthcare Imaging Services, addressed to Ms Mezzomo, dated 23 June 2006. |
| AE12 | Bank statement of Mr Burns for the account from which his mortgage repayment was drawn. |
| AE13 | Letter of demand from Aston Reid Lawyers, on behalf of Douglass Hanly Moir Pathology, addressed to Mr Burns, dated 10 July 2006. This document was objected to on the basis that medical documents post-dating 9 November 2005 were not relevant (T3-375 23 – 32). The applicant submitted in oral submissions that the document was relevant to the issue of damages as it relates to the applicant’s financial state of affairs following the termination of his employment (T3-375 36 – 37). The applicant further noted that, while the letter post-dated 9 November 2005, it related to an invoice dated 2 November 2005 (T3-376 10 – 12), which was within the “relevant period” as argued by the respondents. In this context, the objection was not pressed (T1-377 19 – 20). |
| AE14 | Documents from GE Automotive financial services relating to the applicant’s Honda Civic CXI Sport 3D Hatchback: Notice to the Debtor, addressed to Mr Burns, dated 30 January 2006. Notification of Direct Debit Dishonour, addressed to Mr Burns, dated 17 March 2006. Notice of Right to Cancel Mortgaged Property Insurance, addressed to Ms Mezzomo, dated 10 July 2006. These documents were objected to on the basis that their dates fall outside the relevant period. However, at the time of objection, the respondents indicated that they did not object to the documents being admitted for the limited purpose of damages (T3-378 21 – 22 ff.). The applicant, in oral submissions, noted the operation of s.136 of the Evidence Act 1995 (Cth) (“Evidence Act”) in relation to the respondents’ application that the documents be admitted for a limited purpose, and that no argument or application had been made with reference to either s.136(a) or (b) of the Evidence Act (T3-379 38 to T3-380 6). The documents were admitted provisionally subject to submissions from the respondents as to why the Court should exercise its discretion pursuant to s.136 of the Evidence Act (T3-380 l12 – l16). Subsequently, the respondents’ submitted that the documents be admitted provisionally, pursuant to s.57 of the Evidence Act “on the basis that they may become relevant if and when the issue of damages arises” (T4-402 25 – 27), and on the understanding that they did not affect any issue then before the Court (T4-402 39 – 41). I indicated to the respondents at that time that the issue of damages, having been pleaded, was an issue before the Court (T4-402 43 – 44 and T4-403 33 – 34). In light of the respondents’ submission, it was understood that the application under s.136 of the Evidence Act was no longer pressed (T4-404 13 – 36). The documents were admitted provisionally pursuant to s.57 of the Evidence Act. In the context of the consideration below and relevant conclusions, and in light of the relevance of the documents to the issue of damages, the documents are admitted into evidence. |
| AE15 | Letter addressed to Mr Burns from RAMS Mortgage Corporation dated 23 August 2007. This document was objected to on the basis of relevance (T3-381 6). The applicant submitted that the document was relevant to the issue of damages (T3-381 10). As with AE14, the document was admitted provisionally, subject to submissions from the respondents’ in support of an application that the Court exercise its discretion to limit the evidence pursuant to s.136 of the Evidence Act. Submissions were made together with submissions relating to AE14. This document has been treated in the same way as AE14. That is, this document is admitted into evidence. |
| AE16 | Comments on the Response to Commission prepared by Mr Connolly and dated 6 August 2010. |
| AE17 | Sample letter template for employees who believe they are owed monies by their employer. |
| AE18 | Copy of payment details dated 9 November 2005 for the period ending 6 November 2005 and cheque no. 2034 for $2,097.05. |
| AE19 | New South Wales Police Force “COPS Record” for incident dated 1 December 2005. At the time of tender, I accepted the applicant’s argument that this document fell within the exception to the hearsay rule contained within s.69 of the Evidence Act. That is, as business records of the New South Wales Police Force (T6-603 6 – 8). I noted the respondents’ reliance on National Australia Bank Ltd v Rusu & Ors [1999] NSWSC 539 (“Rusu”) at [21](iii), but found that this did not assist and could be distinguished in the current case. [Noting that the documents in Rusu were bank statements and that their authenticity was subject to some concern.] (T6-602 37 to T6-603 3). While the document was accepted for tender on that basis (T6-602 35 – 36 and T6-603 13 – 15. See also earlier at T5-508 31), I reserved my judgment on the argument as it related to s.46PR of the AHRC Act (T6-603 8 – 10). Having had further regard to the arguments raised by the parties as contained in the transcript of the hearing, I understand the argument as it relates to s.46PR of the AHRC Act to initially have been put in support of the applicant’s pressed reading of s.69 of the Evidence Act (see T6-594 29 – 45). Further argument was raised that, by way of s.46PR of the AHRC Act, “even though the court is not bound by technicalities and forms, what it is bound by is procedural fairness” (T6-598 5 – 6). This line of argument referred to the applicant’s submission that the applicant had not objected to similar evidence being adduced by the respondents, but that rather “submissions should be made about the weight to be given to that evidence in the context of both what it says on its face and insofar as it has been affected by cross-examination”, and that “it is only fair”, in light of that election not to object, “that a similar approach be taken in relation to this document” (T6-598 7 – 12). The respondents elected not to respond to this submission, but maintained their objection (T6-598 16 – 17). Upon further consideration, I remain uncomfortable with the proposition (implicit in the applicant’s submissions) that, in the interests of procedural fairness, the admission into evidence of documents without objection from one party serves in some way to overcome objection to the subsequent admission of even similar documents by the opposing party. I do not see, in this regard, that the applicant’s election not to object to documents from the respondents creates an obligation to overrule objections to the subsequent tendering of similar documents. Despite this reservation, as was indicated in Court, this document was admitted into evidence. |
| AE20 | Media Options Payroll Activity Summaries for: 1 January 2003 – 30 June 2003. 1 July 2003 – 30 June 2004. 1 July 2004 – 30 June 2005. 1 July 2005 – 30 June 2006. |
| AE21 | Categories of termination page from the New South Wales Office of Industrial Relations, retrieved on 15 August 2008. |
| AE22 | Screenshot of the National Trade Print website (1). |
| AE23 | Screenshot of the National Trade Print website (2). |
| AE24 | Christmas Card addressed to “Les” from “Bhaskar” and “Angel”, marked December 2004. |
| AE25 | Media Options Payroll Activity Summaries for: 1 January 2003 – 30 June 2003. 1 July 2003 – 30 June 2004. 1 July 2004 – 30 June 2005. 1 July 2005 – 30 June 2006. [I note that this exhibit is a duplicate of AE20.] |
| AE26 | “Shift Cancelled” sign. |
| AE27 | Cover letter and “List of Documents for Discovery” from Boulevarde Lawyers, addressed to Rajesh Chand & Associates, dated 21 December 2010. |
| AE28 | Payroll Advice for Mr Burns for the period 1 July 2003 to 30 June 2004. |
| RE1 | Documents provided by the NSW Police Force under subpoena of 18 April 2011 |
| RE2 | Medical Certificate for Mr Burns dated 11 July 2005. |
| RE3 | Police Witness Statement of Ms Mezzomo, dated 17 December 2005. |
| RE4 | Police Witness Statement of Ms Mezzomo, dated 13 March 2005. |
| RE5(1) | Court Order Notices dated: 16 August 2005 (stalk/intimidate charges). 16 August 2005 (resist officer charges). 8 February 2006 (contravene “ADVO” charges). 8 February 2006 (escape police custody charges). |
| RE5(2) | Documents provided by Labelcraft Printing & Packaging under subpoena of 18 April 2011. |
| RE6 | Payroll Advice for Ms Chandra for the period 1 August 2005 to 31 December 2005. |
| RE7 | Media Options’ 2005 Diary. This document was the subject of extensive examination of Mrs Datta. |
| RE8 | Bundle of documents being: Australian Tax Office Payment Summary for Mr Burns for the period 3 March 2003 to 30 June 2003. Group Certificate for Mr Burns for the year 1 July 2003 to 30 June 2004. Group Certificate for Mr Burns for the year 1 July 2004 to 30 June 2005. Group Certificate for Mr Burns for the year 1 July 2005 to 30 June 2006. Group Certificate for Mr Blinman for the period 4 April 2005 to 30 June 2005. Group Certificate for Mr Stewart Webb for the period 16 December 2006 [sic] to 30 June 2006. Group Certificate for Mr Blinman for the year 1 July 2005 to 30 June 2006. |
| RE9 | “RTA” Driving Record for Mr Datta dated 20 August 2011. |
| RE10 | “Beta HCG Test” page on healthengine.com.au retrieved on 11 September 2011. |
| RE11 | Tax Invoice for Media Options Group from PNS Graphics Australia dated 30 June 2005 and annexures: “MYOB” Journal Entry, dated 21 September 2005. “MYOB” Spend Money Entry, dated 30 May 2005. “MYOB” Pay Bills Entry, dated 19 September 2005. |
| RE12 | Bundle of documents being: Australian Tax Office Payment Summary for Mr Burns for the period 3 March 2003 to 30 June 2003. [I note that this document is a duplicate of RE8(1).] Australian Tax Office Copy of Notice of Assessment for Mr Burns for the year ending 30 June 2004. Australian Tax Office Copy of Notice of Assessment for Mr Burns for the year ending 30 June 2005. Australian Tax Office Copy of Notice of Assessment for Mr Burns for the year ending 30 June 2006. |
| VD1 | Photograph of Mr Datta. [See further below] |
II.III Documents Filed and Relied Upon by the Applicant
The applicant filed, and relied upon, the following relevant documents and submissions (noting those parts that were variously not admitted or not read):
a)Affidavit of Mr Burns, “sworn/affirmed” on 28 March 2011, with 14 annexures (“the first affidavit of Mr Burns”).
i)Paragraph 11: In the sentence beginning “I recall” the phrase “something … face” was not read.
ii)Paragraph 82: In the first sentence, the phrase “until her eventual death is December 2006” was not admitted on the basis of relevance.
iii)Paragraphs 83 to 87:
iv)Provisionally admitted subject to submissions on the state of the law and relevance. The respondents conceded that the evidence was relevant to damages. The applicant, in addition, argued that the material was necessary for the purposes of the “comparator” test as set out in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133 (“Purvis”). The respondents, in contrast, argued that the Purvis test was limited to incidents during the time period of the alleged discrimination (see at T1-18). At the hearing it was, therefore, accepted that the paragraphs were relevant to the question of damages. Submissions were sought as to whether they were also relevant to the substantive issues before the Court.
v)In this respect, the respondents’ submissions make no reference to these paragraphs. In this context, I note generally submissions on the issue of relevance (see below). Further, I note the respondents’ reliance on passages of Purvis. Specifically at [224] per Gummow, Hayne and Heydon JJ:
“…Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.”
vi)Further, at [11] per Gleeson CJ:
“…The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder… it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder…”
vii)In written submissions, the applicant argued that this objection was not properly made, asserting that the comparison need not be made to a person within the same time period (see at [281] of the applicant’s written submissions). In this context, reference was made to the decision of Varas v Fairfield City Council [2009] FCA 689 (“Varas”) in support of the proposition that: “the Applicant may be his own comparator, as long as all the relevant circumstances form part of that comparison” and for “the time issue” (T1-18 34).
viii)In this regard, I note what Graham J said in Varas at [80] – [81]:
“[80] The appellant contended that in circumstances where a disability had been imputed to her from which she says that she did not suffer… the appropriate comparator for determining whether or not, because of her disability, she was treated less favourably than, in circumstances that were the same or were not materially different, a person without the imputed disability would have been treated by her employer, she was herself the appropriate hypothetical comparator.
As indicated at [31] above s 5(1) of the Act requires that the circumstances attending the treatment given to the appellant as the disabled person, must be identified. The relevant circumstances are all of the objective features which surrounded her actual treatment. What must then be examined is what would have been done in those circumstances if the appellant was not disabled or a person to whom a disability had been imputed by the Council.
…
[81] It follows that his Honour did treat the appellant as the relevant comparator, as she sought. It seems to me that this was appropriate, provided that the subjective features which surrounded her treatment were put to one side as I consider they were.”
[Emphasis in original.]
ix)In this context, Graham J referred to the decision of Judge Driver at first instance in Varas v Fairfield City Council [2008] FMCA 996 (“Varas (1)”) at [115]:
“[115] It is at this point that the comparator chosen by Ms Varas (namely herself) presents difficulties. Ms Varas was not dismissed prior to 2006 when she was not imputed with a disability, although she was subjected to disciplinary action that might have resulted in dismissal. She was dismissed in 2006 after she was imputed with a disability and because of it. On Ms Varas’ analysis of the facts she was thus treated less favourably because of the imputed disability, on the basis that her behaviour and work performance did not change significantly over time. That comparison is, however, too simplistic. The comparison must be by reference to the same time period and the same (or not materially different) circumstances. There were important events in 2005 and 2006 that need to be considered in the comparison. Ms Varas’ behaviour did vary over time, for better or worse. So did her work performance. Both declined significantly during 2005. A crisis was reached early in 2006 that compelled some action by the Council.”
x)The meaning here was, in turn, informed by earlier consideration by Judge Driver in Varas (1) at [73] – [74]:
“[73] The issue of a comparator in this case is unusual in that Ms Varas asserts that she is her own comparator. Section 5(1) of the DDA requires a comparison to be made between the way in which Ms Varas was treated by reference to the asserted imputed disability and the way in which a person without that imputed disability is or would be treated in circumstances that are the same or not materially different. The assumption is that in a claim under the DDA, the comparator will be someone other than the claimant – either an actual or a hypothetical person. Ms Varas asserts that she is her own comparator because her behaviour was generally consistent throughout her long period of employment with the Council, whereas the manner in which she was dealt with by the Council changed markedly during and after 2005. While the approach is novel, upon reflection, I think that it is an approach which is open under the DDA. To put the proposition another way, the proposed comparator is an actual employee (namely Ms Varas) who:
a) exhibited the same behaviours;
b) occupied the same position and performed the same duties;
c) demonstrated the same work performance; and
d) was not imputed with the disability (prior to 2006).
[74] I have dealt with this case on the basis of that comparison. As will become apparent, that basis of comparison presents some practical difficulties, when considering the issue of dismissal in particular, but it was the basis of comparison chosen by the applicant, and is permissible.”
xi)
While these passages do provide support for the proposition that an applicant may be his (or her) own comparator, this line of reasoning cannot provide support for the admission of the evidence currently under consideration. The evidence, in the current case, relates not to the applicant, as outlined by Judge Driver at [73] of his judgment and as understood at [115] and per Graham J at [80] – [81] of his judgment, but rather to the applicant’s attempts to find alternative employment ([83] of his first affidavit), the applicant’s financial position following his termination
([83] – [87] of his affidavit), and to his emotional state at the time following termination ([87] of his affidavit). This evidence cannot assist in determination of the test as outlined in Purvis.
xii)As accepted by both parties, these paragraphs are admitted as relevant to the issue of damages. In the absence of anything further in support of the submission that they are relevant to the consideration of the comparator, however, they are not otherwise admitted.
xiii)Paragraphs 89, 91 – 94:
xiv)Objected to on the same basis as [83] – [87] (T1-19). In written submissions the applicant submitted that [89] and [91] – [93] are relevant to the issue of damages and the effect that the alleged discrimination had upon the applicant, and that [91] and [93] provide support for submissions made by the respondents at [450] – [457] of written submissions. In this regard, it is noted that this evidence was provided to Dr Parmegiani for the purposes of his report.
xv)I accept, in the absence of any specific objection from the respondents, that [89] and [91] – [93] are relevant to the issue of damages, and they are admitted for that purpose.
xvi)In relation to [94], the applicant says that it is relevant to determining the claim of indirect discrimination and the question of whether the respondents’ treatment of the applicant was reasonable in the circumstances, on the basis that this evidences “how another employer in the same business as the Respondents treated the Applicant while he had carer’s responsibilities…” ([294] of the applicant’s written submissions).
xvii)In this regard, I note my earlier reasoning and ruling in relation to [83] – [87] of the applicant’s affidavit (see above). I likewise do not see [94] as being of assistance in answering the Purvis test for the purposes of a relevant comparator. In the absence of any other basis of relevance, this paragraph is not admitted.
xviii)Paragraph 95: A number of documents, collectively referred to as annexure LB14, were objected to on a variety of bases.
xix)Document (a) (at page 50 of LB14) was objected to on the basis of relevance as “Five Star Printing & Stationery” does not refer to the first respondent (that is, Media Options) and the document predates the relevant events before the Court (T1-20).
xx)In oral submissions, the applicant submitted that one of the respondents’ witnesses had given evidence to the effect of the contents of the document (T1-20 24). In written submissions, reference was also made to the fact that the matter had been admitted by the respondents at [11] of their reply to the Commission (AE1).
xxi)Further, that while the fact at issue in the document was of limited relevance to the limbs of the relevant questions before the Court, it was relevant to the issue of the credibility of the parties (T1-20 28 – 31). This was clarified in written submissions as being that this evidence corroborated the evidence of Mr Burns.
xxii)In the circumstances, I cannot see that this evidence is relevant to a fact in issue. In light of the applicant’s submission at the hearing that the document is relevant to the credibility of the parties, I must have regard to s.101A and s.102 of the Evidence Act. I find that this evidence is credibility evidence for the purposes of s.101A(a) of the Evidence Act. That is, this is evidence “relevant only because it affects the assessment of the credibility of the witness or person” (s.101A of the Evidence Act). By operation of s.102 of the Evidence Act, this evidence is not admissible.
xxiii)Document (b) (at page 51 of LB14) was objected to on the basis that there was no evidence of the provenance of the document. In written submissions, admission of this document was not pressed.
xxiv)Document (c) (at page 52 of LB14) was objected to on the basis of relevance “and the document had a purchase price” (T1-22 20 – 21). It is unclear on what substantive basis the second part of this objection was made.
xxv)In written submissions (at [302] – [303]), the applicant submits that the document is relevant as it corroborates the evidence of Mr Burns, given in cross-examination, that he had purchased a car for Ms Mezzomo in early 2005. The applicant says that this provides evidence as to the amount of money that the applicant was earning as a result of the overtime that he worked. Having been admitted for this purpose, the evidence can thus also be relevant to the applicant’s credibility (at [303] of the applicant’s written submissions).
xxvi)I cannot see how this document can support such a submission. While the document does indicate that a car was purchased on 31 March 2005 for $17,990, it is unable to provide any insight into the applicant’s overtime earnings at, and prior to, this time, other than perhaps by indirect implication or assumption. This is too remote to the purpose for which it is pressed. The document cannot, therefore, be relevant to any fact in issue. In light of the submission that the document also goes to the applicant’s credibility, I again note the operation of s.101A and s.102 of the Evidence Act.
xxvii)This document therefore is not admitted.
xxviii)Document (d) (at page 53 of LB14) was objected to on the basis of relevance (T1-22 34). In written submissions, admission of this document was not pressed.
xxix)Annexure to document (d) (at page 54 of LB14) was objected to on the basis of relevance (T1-22 36 – 39). In written submissions the applicant submitted that this document was relevant to damages, and that it provided further evidence of the applicant’s carer responsibilities prior to his termination (at [307] of written submissions).
xxx)In light of the contents and nature of the document, I cannot agree with the applicant’s submission that it is relevant to the fact of his carer’s responsibilities. However, I accept that the document, an application for the early release of Mr Burns’ superannuation, is relevant to damages. The document is admitted for that purpose.
xxxi)Document (e) (at page 55 of LB14) was objected to on the basis of relevance (T1-22 43). In written submissions the applicant did not press for the admission of this document.
xxxii)Document (f) (at page 56 to page 62 of LB14) was objected to on the basis of relevance (T1-22 47). In written submissions the applicant submits that the applicant must prove that his partner was subject to a disability requiring care, and that this document (setting out her condition and the date of diagnosis) goes to that fact – that is, a relevant fact in issue. I accept that submission and agree that the document is relevant. The document is, therefore, admitted into evidence.
b)Affidavit of Mr Burns, sworn on 28 April 2011 (“the second affidavit of Mr Burns”).
i)Paragraph 113: The sentence beginning “I understand…” was objected to on the basis that it was a submission. This was not contested. The objection was upheld.
ii)Paragraph 122: The sentence beginning “I deny…” was objected to on the basis that it was a submission. This was not contested. The objection was upheld.
iii)Paragraph 244:
iv)Objected to, initially, on the basis that it was a fresh allegation rather than a reply to an original assertion (T1-39 47 to T1-40 3) and, subsequently, on the basis of relevance (T1-40 42). The objection, with reference to both bases, was not upheld in Court on 3 May 2011. However I indicated to the applicant at that time that, without more, there would be a difficulty in assigning great weight to the evidence (T1-42 4 – 10). It was indicated at that time that this would turn on the question of whether or not the identification of a relevant comparator was limited to the same time period as the alleged discrimination (T1-42 19 – 22).
v)In this regard, I first note Item 7 at page 2 of AE1 (see below at [240]), in which the first and second respondents write that “There were many printers who could run our machinery. Actually, in the first instance, we had got Satish Kumar to do casual printing for us”. In cross-examination (T8-781 38 – 41), Mr Datta gave evidence that this was in error:
“In number 7, it mentioned the name Satish Kumar. He was not employed at any stage in Media Options’ time. I don’t know what – I just wanted to clarify that. He was engaged to do some printing for the liquidator of the old company, Concept Printing and Design”
vi)Further (at T12-107 30 to T12-108 1):
“… but you did also dismiss [Satish] Kumar, didn’t you? --- He was ---
MR SINGH: Objection. Objection. When?
HIS HONOUR: Don’t answer that.
MS EDWARDS: During the period 2003 to 2005? --- He was not employed.
He was employed by Media Options, wasn’t he? --- He was not.
And he was employed by Media Options before you offered the job of printer to Mr Burns, wasn’t he? --- He was not.
And you certainly employed Mr Kumar when you were a director of Five Star, didn’t you? --- That is correct.
And you terminated his employment from Five Start [sic], didn’t you?
MR SINGH: I object”[2]
[2] Further evidence was given in re-examination (at T13-60 l1 – l13), however this does not affect the following consideration.
vii)This objection was on the ground of relevance on the basis, similar to the issue currently under consideration, that the issue before the Court was what Media Options did, and not what a previous entity did (T12-108 15 – 19). At that time, I accepted the submission by the applicant that the claim before the Court relates to Media Options, Mr Datta and Mrs Datta. As such, how Mr Datta had treated employees whose employment was terminated is relevant, including employees prior to the time of Media Options (see at T12-108 27 – 32). A similar argument has been advanced in written submissions in reference to this paragraph (see at [314] of the applicant’s written submissions).
viii)In this context, I accept the applicant’s reliance on Varas (1) per Judge Driver for the proposition that “evidence in relation to the comparator question may come from a period of time other than the period of time covering the alleged discrimination” (at [313] of the applicant’s written submissions). [I note that this point was not relevant to, nor overturned on, the appeal.] The relevant period in this case can be extended to include the period in which Mr Datta was in effective control of Concept Printing & Design.
ix)This evidence is, therefore, admitted.
c)Affidavit of Mr Salmon, “sworn/affirmed” on 28 March 2011.
i)Paragraph 3:
ii)Objected to initially on the basis of credibility and relevance (T1-42 39 – 40). The paragraph was admitted provisionally, subject to submissions from the applicant on the relevant law. The passage “I am impressed by your honesty … approach to our employees” was further objected to on the basis of relevance as a “self-serving statement to bolster the credibility of the applicant” (T1-43). This objection was then recast as an objection that it was opinion evidence (T1-43).
iii)Following the initial objection the paragraph was admitted provisionally (T1-43 7 – 8). Following further submissions two sentences were admitted into evidence (T1-44 39 – 40):
“Mr Salmon: “… I am impressed by your honesty… We pride ourselves on our approach to our employees.”
iv)The objection was then further recast as an objection on the basis that the statement was hearsay (T1-45).
v)Still further, counsel for the respondents indicated that “I won’t press it further” (T1-46 17). It was unclear whether this was a reference to the objection in toto or simply to the objection on the grounds of opinion and hearsay. In light of this uncertainty, I treat this statement as being made with reference to the latter.
vi)Beyond the initial objection, no further submission was made by the respondents in support of the objection on the ground of relevance. The applicant, in oral submissions, noted that the evidence was relevant to damages (noting that the evidence should not be limited [presumably with reference to s.136 of the Evidence Act] to that issue (T1-44 14 – 22, see also in written submissions at [324])). Further, the applicant submits (in written submissions at [310] – [322]) that this evidence is relevant to identifying the relevant comparator for the purposes of s.5(1) of the DDA.
vii)
As I have already indicated, I am unable to agree with the applicant’s urged understanding of the scope of the comparator (with reference to Purvis and Varas). I find similar difficulty with reference to the submission at [323] of the applicant’s written submissions (and at
T1-44 42 – T1-45 2) that evidence relating to the applicant’s subsequent employment can assist in assessing the reasonableness of any requirement or condition imposed upon the applicant during the period of alleged discrimination (in the context of indirect discrimination).
viii)As such, I do not accept the applicant’s submission that this evidence is relevant to the issue of the comparator. However, I accept that this paragraph is relevant to the issue of damages. On that basis the respondents’ objection is not upheld.
ix)Turning to the objection on the basis that the evidence goes to credibility only, it was not clear that the respondents further developed this objection at the hearing (see generally T1-43 19 ff.).
x)I note, as the applicant submits (at [317] of written submissions), that s.101A of the Evidence Act (by way of s.102) only serves to exclude from admissibility evidence (per s.101A(a))[3] that “is relevant only because it affects the assessment of the credibility of the witness or person” [emphasis added]. In light of my finding that the evidence is relevant to the issue of damages, s.102 of the Evidence Act does not apply to render the evidence inadmissible.
[3] Section 101A(b) does not apply to this evidence.
xi)Paragraph 4 (with the exception of the first sentence):
xii)Objected to on the same bases as was [3] of Mr Salmon’s affidavit (T1-46 18). The scope of the objection was not made clear. Nor were the precise elements, or bases, relied upon identified. No further submissions were received from the respondents going to this objection.
xiii)Orally, the applicant submitted that the evidence was relevant to the issue of damages and, again, its use should not be limited (again, presumably by way of s.136 of the Evidence Act) (T1-47 29 – 35).
xiv)Written submissions from the applicant (at [330] – [333]) did not reflect this argument. Instead, the applicant argued that the evidence was relevant because Mr Salmon is in the printing industry. His attitude towards Mr Burns (and his carer’s responsibilities) “… is to be contrasted to the attitude of the Respondents and thus goes to the reasonableness of the conditions said to be imposed by the Respondents”. In this way, as with [3], this evidence is relevant to the issue of indirect discrimination.
xv)For the reasons set out above with reference to [3] of Mr Salmon’s affidavit, I do not accept this submission. I do not see that this evidence is relevant to any fact or issue before the Court.
xvi)In light of that ruling, it is unnecessary to further consider the submissions made by the applicant in relation to hearsay (at [330]), opinion (at [332]) or credibility (at [333] of the applicant’s submissions).
xvii)This evidence is not admitted.
xviii)Paragraphs 5 – 7:
xix)These were, again, objected to as being “the same category” (T1-48 12 and T1-48 25). These were admitted provisionally, subject to submissions. In written submissions (at [335]) the applicant submits that these paragraphs are, again, relevant to the question of the reasonableness of the respondents’ treatment of the applicant, while [6] and [7] also go to prove facts limiting the liability of the respondents in damages.
xx)I cannot agree. As has been outlined above, I do not see this evidence as assisting in the assessment of the reasonableness of the respondents’ treatment of the applicant for the purposes of establishing indirect discrimination. This evidence is therefore not relevant to any fact in issue before the Court. It is not admitted.
xxi)Paragraph 8 was objected to on the basis that it was opinion evidence. It was conceded that the final sentence was unobjectionable on this basis. The objection to the first sentence was then recast as an objection on the ground of relevance. Ultimately, the second sentence was not pressed, the first and third sentences were admitted into evidence. In this context, I do not need to further consider the applicant’s written submissions (at [337]) in relation to the first sentence.
d)Affidavit of Mr Mezzomo, affirmed on 29 March 2011.
i)Paragraph 3:
ii)Objected to on the grounds of hearsay and due to its “limited probative value”. The respondents’ also submitted at the hearing that the prejudice to the respondents in admitting this as evidence would outweigh any probative value it might have (T1-49 35 – 37). It was noted at the time of the objection that, in light of earlier rulings, the hearsay objection would not stand (T1-49 43 to T1-50 5).
iii)In explaining the objection on the basis of prejudice, the Court was referred to [4] of the same affidavit, noting that the final sentence therein was not in the proper form (T1-50 19 – 25). The Court was further referred to [5] of the same affidavit, and the statement that “[Mr Datta] refused to provide [Ms Mezzomo] with payslips and was a ‘conartist’” (T1-50 33 – 35). The respondents’ argued that this was an attempt to bolster the applicant’s credibility (T1-50 37 – 38). It was also argued that this evidence was in the incorrect form (T1-50 38 – 40). Still with reference to [5], the objection to [3] on the grounds of prejudice was further developed to incorporate three elements: (1) that no notice had been given in accordance with requirements under the Evidence Act, (2) that it was not in the proper form, (3) that it does not address matters central to the case before the Court (but rather peripheral issues relating to opinions regarding the employment of Ms Mezzomo and credibility) (T1-51 18 – 23).
iv)The paragraph was provisionally admitted subject to submissions. I note in this regard that no objection was taken to either [4] or [5].
v)Insofar as the objection was made on the basis of hearsay, the applicant in written submission makes the “same submissions with regard to notice to be provided in relation to hearsay evidence… [and] in relation to the admission of evidence about what the Applicant says Ms Mezzomo told him on the basis that she is no longer available to give evidence” (at [339] of the applicant’s written submissions).
vi)Significantly, I note that the respondents’ submissions in support of this objection refer only to the contents of [4] and [5]. These submissions do not support the objection made by the respondents that the evidence in [3] is prejudicial. In the circumstances, I cannot see that it is. The objection is not upheld. The evidence is admitted.
vii)
Paragraph 7 was objected to on the basis of relevance
(T1-52 27). The objection was not upheld in so far as the paragraph was relevant to damages.
viii)Paragraph 8 was objected to on the grounds of relevance (T1-53 24). The objection was not upheld in so far as the paragraph was relevant to damages.
ix)
Paragraph 9 was objected to on the basis of relevance
(T1-53 36). The paragraph was not pressed and the objection was upheld.
e)Affidavit of Mr Connolly, “sworn/affirmed” on 20 April 2011, with 23 annexures.
i)The entire affidavit, and accompanying annexures, with the exception of pages 71 – 83 and 88 – 96 of SC13, was objected to as being either already before the Court, or relating to interlocutory proceedings. Paragraphs 1 – 3 (and SC1 and SC2) were subsequently not objected to.
ii)Paragraphs 4 – 18 (and annexures referred to therein) were not pressed.
iii)Paragraph 19 was read. Annexures SCE1 and SC18 were admitted as exhibits before the Court (see below).
iv)Paragraphs 20 – 24 (and annexures referred to therein) were not read.
f)Medico-legal report of Dr Julian Parmegiani dated 1 September 2010, with an attached psychiatric impairment report.
g)Written submissions filed on 3 May 2011 (“the applicant’s initial written submissions”).
h)Submissions in reply filed on 20 April 2012 (“the applicant’s written submissions”)
Category B relates to the period when Mr Burns was employed by Labelcraft to the (expected or scheduled) conclusion of the hearing before the Court. The following can be noted:
a)Mr Burns’ income if he had continued to remain employed by Media Options:
i)The applicant has used the difference calculated in category A as the sum of his income if he had remained employed at Media Options. That is not an accurate reflection of the applicant’s income for several reasons.
ii)First, as found elsewhere in this judgment and as noted above, I do not accept that the applicant was required to work overtime in the period leading up to the termination of his employment. As such, “overtime” should not be included in this sum.
iii)Second, as noted above, the sum of $111,706.40 is not reflective of the applicant’s annual income while he was employed at Media Options. Rather, it reflects the difference between what he received at Media Options (noting my finding above about overtime) and what he received from CentreLink. As such, the appropriate amount to use is $932.20 per week, being the applicant’s salary when employed by Media Options.
b)The relevant period:
i)The applicant’s calculation is for the period when he commenced employment with Labelcraft to the Monday following the scheduled, or originally anticipated, conclusion of the hearing on Friday, 7 May 2011 (noting that the applicant only calculated the quantum of damages in initial written submissions). No satisfactory explanation is provided by the applicant for his choice of concluding date.
ii)The only possible explanation is that, in light of the applicant’s submission that he is “unlikely to improve within two years” ([32] of the applicant’s initial written submissions), that two year period commenced from the conclusion of the hearing. That is, that it was necessary to conclude the category B period at the conclusion of the hearing, so as to allow for the additional two year period to be calculated.
iii)However, in light of the evidence before the Court, I cannot accept the applicant’s submission in this regard. First, the applicant has not put forward any evidence in support of his submissions that he is “unlikely to improve within two years”.
iv)The relevant evidence before the Court, that is the “Medico-Legal Report” and “Psychiatric Impairment” report of Dr Parmegiani, both dated 1 September 2010, provides for a shorter period of recovery. The “Psychiatric Impairment” report by Dr Parmegiani provides that Mr Burns “…will reach maximum medical improvement within 4-6 months of commencing specialist psychiatric treatment” (pg. 1 of that report). Further, the “Medico-Legal Report” of Dr Parmegiani provides that “Mr Burns’ overall prognosis will depend on whether he abstains from alcohol…” (pg.6 of the Medico-Legal Report).
v)Before the Court, under cross-examination, Mr Burns gave evidence that he had been seeing a psychiatrist, Dr Alex Sharah (T4-423 20 – 21), however that was at a time prior to the termination of his employment by the respondents (see exhibit “AE8”). There was no clear evidence before the Court to indicate whether, on Dr Parmegiani’s recommendation, the applicant had commenced seeing a specialist psychiatrist.
vi)I note that, in the “Schedule Damages” (attached to the applicant’s initial written submissions), the applicant had sought the sum of $6,000.00 for “medical treatment”. That was said to be comprised of $300 per session x 20”. No evidence was provided to in support of that sum (see further below).
vii)With regard to Mr Burns’ consumption of alcohol, I note that his evidence was that he “had not consumed alcohol daily over the past six months” ([95] of his first affidavit and, in context, being the six months to 29 March 2011). Further, I note Mr Burns’ evidence (at [95] of his first affidavit) that “..it took a significant amount of time for me to improve my mental health to where I am now”.
viii)In light of the scarcity of evidence before the Court on this issue, it is not open to the Court to find when Mr Burns commenced treatment, if ever, with a specialist psychiatrist. Nor can the Court find on which date the applicant could reasonably be said to be expected to “reach maximum medical improvement”. On the best view of the evidence, I find that Mr Burns is entitled to damages up to a period six months after the date of Dr Parmegiani’s reports. That is based on Dr Parmegiani’s recommendation that the applicant “…will reach maximum medical improvement within 4-6 months of commencing specialist psychiatric treatment” (pg. 1 of that report). That is, at its highest, six months from 10 September 2010, being 10 March 2011.
In light of my findings above in relation to the period for which the applicant is entitled to damages, category C and D cannot be made out. That is, they are based solely on the applicant’s assertion in submissions that he is “unlikely to improve within 2 years” ([32] of the applicant’s written submissions).
With respect to category E, being the sum of $6,000.00 for “medical treatment”, as noted above, the applicant failed to put evidence before the Court as to whether the applicant had commenced receiving psychiatric, or “medical”, treatment and, if so, the cost of each of those sessions. Further, the applicant’s Statement of Claim, while seeking payment for lost wages, did not seek damages for medical expenses. In the circumstances, it is not open to the Court to award this sum.
Interest
I note that, in the Statement of Claim and in written submissions, the applicant did not seek interest on any award of damages. In those circumstances, it is not appropriate for the Court to consider whether interest should be awarded, nor to award it.
General Damages
The “Damages Schedule” refers to the sum of $100,000 as “general damages” (category F). It is the applicant’s submission that, as a result of the discriminatory conduct of the respondents’, he was “… plunged into unemployment and drink and … has not been able to return to his work as a printer” ([358] of the applicant’s closing written submissions). Further, it was the evidence of Dr Parmegiani, and the applicant, that he had suffered a psychiatric injury which, as well as affecting all aspects of his life, had affected his ability to obtain alternative employment. The respondents did not make submissions as to the award of general damages.
In determining general damages it is appropriate to consider the merits and elements of the case, and the “tort” committed by the respondents. In particular, the impact of the respondents’ conduct on the Mr Burns. (I note that in any relevant assessment the relevant principles of tort apply – see, for example, Hall v Sheiban.)
While I accept the applicant’s submission that this case is “not at the lower end” ([358] of the applicant’s written submissions), I do not accept that an award in the sum of $100,000 is appropriate. In determining the appropriate amount regard can, and should, be had to previous awards, albeit only as a guide.
I note that the applicant referred to the award of $40,000 in Gama v Qantas Airways (No.2) [2006] FMCA 1767 (per Judge Raphael and upheld on appeal in Qantas Airways Limited v Gama [2008] FCAFC 69) where the applicant established the existence of a “severe depressive illness”. Further, the applicant referred to the award of $90,000 in circumstances where the applicant was diagnosed by one doctor with post-traumatic stress disorder, and by another doctor a major depressive disorder (Poniatowska v Hickinbotham [2009] FCA 680). Finally, reference was made to the award of $125,000 in a case of “serious sexual harassment giving rise to significant psychiatric illness” (Victoria v McKenna (1999) 140 IR 256).
Given the evidence before the Court that Mr Burns had suffered from depression prior to the discriminatory conduct of the respondents (see Mr Burns’ evidence and the evidence of Dr Parmegiani above), it is not open to the Court to find that the conduct of the respondents’ caused the applicant to suffer from a serious depressive illness. Rather, the respondents’ conduct exacerbated the applicant’s
pre-existing mental illness. In those circumstances, I find that an award in the sum of $40,000 is appropriate.
Aggravated Damages
The respondents failed to make submissions which specifically addressed the award of “aggravated damages” and, if awarded, the quantum that was appropriate in the current case. However, the respondents otherwise submitted that the applicant’s claims, if made out, would “constitute conduct [in context, by the respondents] that is callous, insensitive in the extreme, reprehensible and would only be engaged in by a small minority in society who are the most mean spirited and obnoxious people” ([22] of the respondents’ written submissions).
As set out above, I have found that, for the most part, the applicant has successfully made out his claims of discrimination with respect to the respondents. In light of my various findings above, and as reflected in the respondents’ description of the conduct alleged (and, for the most part, made out) against them, this is a matter that warrants the award of aggravate damages. In particular, the respondents’ conduct was such as to bring it within the description given by Lockhart J in Hall v Shieban [1989] FCA 72; (1989) 20 FCR 217 (citing Alexander v Home Office [1988] 2 All ER 118 per May J) (“Hall v Shieban”). That is, that they acted “high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination” (as relied on by the applicant at [363] of written submissions).
In relation to the quantum of aggravated damages that ought to be awarded in the current case, it is useful to consider awards made in other cases. Although not definitive as to the appropriate sum to be awarded, they can be useful as a guide when considered in the context of the specific circumstances of the particular case. Further, I note Lockhart J’s statement in Hall v Shieban (at [76]) that:
“It is fundamental that an award of a larger amount of damages by way of aggravated damages serves to compensate the victim for damage occasioned by the defendant's conduct where an element of aggravation is involved in that conduct, and not to punish the defendant.”
I find that, in the current case, it is appropriate that aggravated damages be awarded. However, I note that aggravated damages are compensatory, not punitive, and in those circumstances I find that a sum of $10,000 is appropriate.
Exemplary Damages
I am not satisfied that exemplary damages may be awarded. Exemplary damages are not compensatory in manner. Rather, they are punitive (Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526 at [69] per Walters FM with reference to Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J).
I, obviously, follow Lockhart, Wilcox and French JJ in Hall v Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 (at [78] to [83]) that exemplary damages are not available (see also Hughes (formerly De Jager) v Car Buyers Pty Ltd & Ors [2004] FMCA 526 at [74] per Walters FM and Frith v The Exchange Hotel & Anor [2005] FMCA 402 per Rimmer FM who both held that exemplary damages were not available and with whom I respectfully agree). I respectfully disagree with Judge Raphael’s conclusion in Font v Paspaley Pearls (2002) FMCA 142 that exemplary damages are available in discrimination matters.
In light of the above, the damages to be awarded in the current case are as follows:
| Category | Amount | Total |
| [1] 9 November 2005 to 9 December 2006 | $932.20 pay per week net at Media Options (equating to a monthly net pay of $4,039.53 – see note below) $4,039.53 x 13 months = $52,513.93 Less monthly CentreLink payments = $9,027.42 $52,513.93 – $9,027.42 30% of $43,486.52 based on medical evidence | $13,045.96 |
| [2] 9 December 2006 to 10 March 2011 | $4,039.53 monthly net at Media Options x 4 years and 3 months (52 months) = $210,055.73 $663.45 average per week at Labelcraft (equating to average monthly pay of $2,874.95) $2,874.95 x 52 months $210,055.73 - $149, 497.40 30% of $60,558.33 based on medical evidence | $18,167.50 |
| SUB-TOTAL | $31,198.12 | |
| General Damages | $40,000.00 | |
| Aggravated Damages | $10,000.00 | |
| TOTAL | $81,213.46 |
[I note that the calculations above are based on monthly payments. That is, the applicant’s monthly net salary, obtained by multiplying his weekly net pay at Media Options ($932.20) by 52 (weeks) and then dividing by 12 (months). Further, for example, the applicant’s monthly CentreLink payment, calculated by multiplying his fortnightly payment by 26 (fortnights) and then dividing by 12 (months).]
XII. Other Relief Sought
The applicant, in his statement of claim (see attachment to the application to the Court), seeks interest pursuant to s.76(3) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”). That is, interest on the amount awarded for loss from the date when the course of action arose to the hearing date, and from the date of hearing to the date of judgment entry (s.76(3)(c)).
In the circumstances presented I am not satisfied there is good cause not make such an order. No direct argument was raised by the respondents in this regard to the contrary. In light of my findings on in bringing the application (see above at [188]), it is appropriate that an order for interest be made up to the time of the hearing, and further that interest be payable up to the date of the judgment.
As to the amount sought, given the length of time involved and the absence of submissions from both parties, it is appropriate to proceed pursuant to s.76(3)(d) of the FCCA Act. In these circumstances the amount the respondents should pay as interest is $25,000.
The applicant also seeks interest pursuant to s.77(3) of the FCCA Act. That is interest from the date on which judgment is entered. In the current case it is appropriate that such an order be made. I cannot see any reason not to make such an order.
Rule 26.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that the rate of interest for an order of post-judgment interest under the FCC Act is that prescribed by the Federal Court Rules 2011 (Cth) (“FC Rules”). Rule 36.09 of the FC Rules states:
The prescribed rate at which interest is payable under section 52 (2) (a) of the Act is:
(a) for the period from 1 January to 30 June in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced; and
(b) for the period 1 July to 31 December in any year — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced
The applicable cash rate, published by the Reserve Bank of Australia prior to January 2013, on 5 December 2012 was 3 per cent. Having regard to the FC Rule, the rate of interest is 9 per cent. Accordingly, I will make an order in favour of the applicant consistent with the above.
Finally, the applicant also seeks certification that it was reasonable to engage counsel to appear in these proceedings, pursuant to r.21.15 of the FCC Rules. The relevant test is one of reasonableness. Given the nature of the proceedings, and the course of the proceedings amply set out at various points of the judgment above, I am satisfied it was reasonable for the applicant to engage counsel. Therefore, it is appropriate that such a certificate be granted and I will do so.
I will hear the parties on costs.
I certify that the preceding one thousand, seven hundred and ninety-seven (1797) paragraphs are a true copy of the reasons for judgment of Judge Nicholls.
Associate:
Date: 19 April 2013
“[Ms Edwards] And do you recall just a little while ago, just after the luncheon adjournment- - - ? --- Yes.
- - - you were being asked some questions about smoking in the work environment? --- That’s correct.
And as part of the answer to those questions, you then gave a different answer about whether was drinking was part of the reason, didn’t you? --- Please tell me exactly - - -
You said drinking and smoking were not the reasons for termination, didn’t you? --- No, I didn’t say that. If you want to – because when I was answering that question, there was an objection raised and then I was asked to stop my answer. I was referring to how I had said that in this document I had over written a lot of things and I was going to give an example for page where a lot of things are written but they were not asked for. But I was not able to stay that and that was this page here, number 36. I was – I said the page – his violent nature, his drinking and smoking, and by that time I think I had been stopped, that I could not go any further. I did not complete my answer so I was just referring to these things which I had told earlier that they were not called for but I had written because I was writing everything which was in my mind in that state.
Mr Datta, you understand that we have a recording of these proceedings, don’t you? --- That’s correct. That’s what I was going to do and I hope the recording was in line with what I’m saying.”
…
(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
…
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made.
…”
“[Ms Edwards] Now, up until about April 2005, it’s correct to say, isn’t it, that you and Mr Burns worked similar shifts, isn’t it? --- Sometimes, yes.
Sometimes. And you are aware, aren’t you, that – well, let me ask you this question first. From about April 2005 to November 2005, your finishing time at Media Options was about 3 pm, wasn’t it? --- Roughly, yes.
And in or about April 2005, you know that Mr Burns began working afternoon shifts, don’t you? --- Yes.
And that meant that he would start at about 4 pm, didn’t it? --- Roughly, yes.
So you would agree with me that your roster and Mr Burns’ roster didn’t overlap to any significant degree after April 2005, did it? --- No.”
At T13-75 l37 – l42:
“[Ms Edwards] Now, in your affidavit, you talk about seeing Mr Burns drink at work? --- That’s correct.
And you would agree with me, wouldn’t you, that that’s not evidence you can give after about April 2005, because you didn’t work the same shift? --- Didn’t – that’s correct, yes.”
“And were you asked to take your tools? --- Yes.But you didn’t take them, did you? --- No.
Why not? --- Because straight off, that was a false document, it was fabrication, and I was upset, and I didn’t want the humiliation of walking around, picking up my tools after eight years been working there. I didn’t want to have the humiliation of people looking at me walk out with my tail between my legs on a false document.”
“… And I asked to speak with the two police officers once I had done that, on the footpath.Yes? --- I spoke to them for 40-45 minutes and I just explained what happened and how – how it was a fabrication.
Yes? --- And they just said to me, ‘Look, you can’t go back in. You just can’t go back in. To get the rest of your stuff, you will have to go down to the Bankstown Police Station, see – see someone behind the desk, and they will organise you somebody to come back and get the rest of your stuff’. That’s what he said to me.
Okay. So you waited outside. Were you waiting for David Begley to come to work? --- Yes. After I spoke to the police, I was, yes.
Yes. And at some point you were calling out his name as well from outside, weren’t you? --- No, because I knew he wasn’t there.
Okay. And so how long did you stay there for? --- Probably 45 minutes, because I was talking to Warren from the footpath.
Right? --- Yes.
And what was that conversation about? --- I was waiting for David to turn up so I could tell him what happened.”
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