Complainant DT232023 v The Australian Capital Territory (Represented BY Community Services Directorate) (Discrimination) - [2024] ACAT 89

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT DT232023 v THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY COMMUNITY SERVICES DIRECTORATE) (Discrimination) [2024] ACAT 89
DT 23/2023
Catchwords: DISCRIMINATION – breach of Discrimination Act 1991 regarding irrelevant criminal convictions –– compensation-consideration of orders under section 53E of Human Rights Commission Act 2005 – overview of cases in the ACT where compensation for economic and non-economic loss has been awarded – damages for loss of enjoyment of life – damages for loss of wages and future economic loss and for medical expenses

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 92
Civil Law (Wrongs) Act 2002 ss 35, 99
Discrimination Act 1991
Human Rights Commission Act s 53E

Cases cited:AB v ACT [2018] ACTSC 16
Bottrill v Sunol [2018] ACAT 21
Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2021] ACAT 2
Complainant DT292023 v The Canberra Institute of Technology (Discrimination) [2024] ACAT 42
Cullen v Trappell [1980] HCA 10
Green v State of Queensland, Brooker and Keating [2017] QCAT 008
Gutierrez v Mur Shipping Australia Pty Ltd [2023] FCA 399
Hall v Sheiban [1989] FCA 72
HL v HP [2019] ACTSC 299
Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827
John XXIII College v SMA [2022] ACTCA 32
Kovac v The Australian Croatian Club Ltd (No 2) [2016] ACAT 4
Mahony v J Kruschich (Demolitions) Pty Ltd & Anor [1985] HCA 37
March v Stramere [1991] HCA 12
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Mount Isa Mines Ltd v Pusey [1970] HCA 60
Oliver v Roberts [2018] ACTCA 35
Purkess v Crittenden [1965] HCA 34
Qantas Airways Limited v Gama [2008] FCAFC 69
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Skea v NRMA Insurance Ltd [2005] ACTCA 9
Todorovic v Waller [1981] HCA 72
Vulin v Cox [2005] ACTCA 22
Wang v Australian Capital Territory [2016] ACAT 71
Watts v Rake [1960] HCA 58
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53

Tribunal: Senior Member B Meagher SC

Date of Orders:  26 November 2024
Date of Reasons for Decision:      26 November 2024
Date of Publication:  4 December 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 23/2023

BETWEEN:
COMPLAINANT DT232023
Applicant

AND:
THE AUSTRALIAN CAPITAL TERRITORY (REPRESENTED BY COMMUNITY SERVICES DIRECTORATE)
Respondent

TRIBUNAL:Senior Member B Meagher SC

DATE:26 November 2024

ORDER
The Tribunal orders that:

The respondent is to pay compensation of $265,372.87 to the applicant.
The order for payment is stayed for 28 days from the date of the order.

The Tribunal notes that:

The parties are to enquire of the Department of Social Security and the Health Insurance Commission as to what, if any, monies from this should be paid to them and, if need be, the parties have leave to apply to amend the orders to comply with such obligations.
………………………………..
Senior Member B Meagher SC

REASONS FOR DECISION

This decision concerns the appropriate orders to be made under section 53E of the Human Rights Commission Act2005 (the Act). It was found by a different Tribunal in an earlier proceeding that the respondent had breached the Discrimination Act 1991 in respect of a protected attribute, namely irrelevant criminal convictions (Original Tribunal). The Original Tribunal is unable to complete that task, and I am doing it in her place pursuant to section 92 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
In the first hearing, the applicant appeared for herself, and Ms Katie Weir of counsel appeared for the respondent. In the hearing before me, Mr Paul Smith of the Legal Aid Office appeared for the applicant, and Ms Weir again appeared for the respondent. Both were of great assistance in providing sensible, well-researched and instructive submissions.

Written evidence and submissions

They were as follows:
(a)Statement of the applicant, dated 28 September 2023 (tendered in the liability hearing).[1]
(b)Statement of the applicant, dated 5 July 2024 (this had annexed an earlier report of Dr Richard Furst of 22 July 2022, and documents that were part of a tender bundle in the liability hearing, namely an email of 27 November 2023 to the tribunal and an email chain with a Mr Graeme Henderson — an employee of the respondent in April 2023).[2]
(c)Report of Dr Furst, a forensic psychiatrist, of 24 June 2024.[3]
(d)Further Report of Dr Furst of 5 July 2024.[4]
(e)Applicant’s submissions on remedy dated 6 July 2024.
(f)Respondent’s submissions on remedy dated 2 April 2024.
[1] Exhibit A3
[2] Exhibit A8
[3] Exhibit A9
[4] Exhibit A10
The respondent tendered no new evidence but relied on evidence at the liability hearing.
In addition to the written evidence, the applicant was briefly cross-examined, as was Dr Furst. There is not much of a factual nature that is in dispute.
The content of the cross-examination appears later.

The legislation

53E Kinds of orders—unlawful acts under the Discrimination Act
(1) This section applies if—
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider—
(a) the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b) the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d) the nature of the discrimination; and
(e) any mitigating factors.
Examples—par (b)—impact of discrimination
distress, humiliation, loss of self-esteem, loss of enjoyment of life
Example—par (c)—other human rights
freedom of expression
Examples—par (d)
serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991
Examples—par (e)
a public apology, systemic changes to protect against further discrimination

The only relief sought now is compensation. There is no obvious order of assistance otherwise. Initially, reinstatement was sought but is not now. As Ms Weir explained, the applicant had ended the job by her resignation, so reinstatement would be to a new job. That is possible under the Act as the section is very broad, but unless the reemployment was voluntary, it would be problematic. It has not been offered or now sought.
Ms Weir submitted that there was a causation problem in respect of the compensation claimed, due to subsequent intervening events, so it is important to set out in chronological order a brief description of the events.

The facts

The applicant was born in October 1990 and by the time of this hearing was 34. She has two young daughters who are dependent on her. She had a troubled life as a child. Both her parents were drug addicts, and she suffered neglect, abuse and hardship as a result. As she explained to Dr Furst, she saw school as a refuge and to her credit went through to obtain a Higher School Certificate. Although in an environment where drug abuse was rife, she was determined not to be sucked into drug use and gives uncontradicted evidence that she was not. As if that was not enough, she entered an abusive relationship at a very young age. Her partner had a very unfortunate upbringing and remained dysfunctional. This resulted in abuse of the applicant. That relationship resulted in the birth of her two daughters. Her partner moved on and the applicant was then subjected to significant abuse and harassment by his new partner. She suffered from post-traumatic stress disorder (PTSD) with anxiety and depression. She received treatment for it, and by the time she found work with the respondent it was under control, and she was functioning well.
During the time that she was still with her former partner, she committed a number of offences. The circumstances of the offences are not revealed by the evidence, but some involved dishonesty and one involved a conspiracy in the sale of a prohibited drug. They started in 2010, when the applicant was 20 years old and still in an abusive relationship. With two exceptions, they all occurred while she was still in the abusive relationship, with the last of these being in 2017. She had two minor misdemeanors more recently, the last being in 2021. It was in respect of the hearing of the last matter that she saw Dr Furst and he provided his first report. In 2021, she applied for a job with the respondent. She disclosed her record in full. Initially this was not successful because of her record, so she complained to the Human Rights Commission (HRC). There she explained the circumstances of the offences to the respondent’s representative, Mr Craig Rose, and he accepted that they should not prevent her from being employed. It was common ground that her record was known already by the respondent at the time of the discrimination here. Mr Rose helped her navigate the employment process and she was employed thereafter in temporary positions. This agreement was in June 2021.
The first position started on 4 November 2021. These jobs were for two or three months, and she was employed in nine different positions with the same responsibilities, with no break in employment. The last of those positions was due to end on 31 May 2023. She believes she was well thought of, and there were no complaints made against her.
The applicant applied for permanent positions but had yet to succeed in those. Her temporary employment contracts made clear that there was no guarantee that she would continue to be employed after the term ran up.
As well as applying for permanent jobs with the respondent, she also applied to the Canberra Institute of Technology (CIT) for a permanent job with similar duties. Her direct supervisor acted as a referee for her, and on 30 March she found out that this was successful. She discussed this with her boss, and they agreed that as that job was due to start on 26 April 2023, she could finish up with the respondent on 25 April 2023 (Anzac Day).
On 6 April 2023, ACT Police executed a warrant to search the applicant’s home in connection with a person that they were investigating and who the applicant had been seeing. There was no suggestion that the applicant had done anything wrong. The police provided complainant’s criminal record to the ACT Integrity Commission (Integrity Commission) in case she had not been frank as to her criminal record on her pre-employment document.
The applicant was asked at the hearing before me whether she found the raid traumatic, but it was clear that the police behaved well, and it had no impact on her.
The police noticed a government computer, and the Integrity Commission wrote to the respondent telling it all this, and included her criminal record. The communication might well have been viewed as alarming by anyone who did not know all the facts.
At that stage, the CIT had not withdrawn its offer and there was further communication between it and the applicant seeking more forms, including the criminal record form. It was apparent, then, that the CIT offer would have to be redone, so the starting time would be affected. The applicant says once she knew this, she would have told her boss who was short-staffed and believes another contract would have been provided.
Once the communication from the Integrity Commission was received by the respondent, the person tasked with deciding what to do[5] determined to immediately exclude the applicant from access to the pay system; removed her from active work; placed her on paid “gardening leave” until the end of the temporary contract; and determined her employment would not be renewed.
[5] Mr Rose was said to be on leave in the applicant’s submissions
This was all done without checking known records or providing notice to the applicant.
The applicant was told by phone of this.
She sought a copy of the Integrity Commission letter and, in an email of 19 April 2023 to another employee of the respondent, explained the context of the record, bearing in mind her history with Mr Rose, her prior full disclosure, her good work record, her challenging life history, her demonstrated good record, and the fact that the search warrant was not in respect of any wrongdoing by her. The email did not expressly say so, but it was implicit that she hoped for a change of heart. That did not happen. She received no reply to this email.
The original decisionmaker in her statement expresses a feeling of sympathy for the applicant and determined that she would continue to be paid until the end of the temporary employment on 31 May 2023.
In the week of 17 April 2023, the applicant contacted the HRC and made a complaint that led to this case. She sought reinstatement and compensation. She expressed a wish to conciliate the matter but the respondent did not wish to do this. The matter was then referred to the tribunal.
To compound matters, CIT withdrew its offer — already accepted — on 31 May 2023. The applicant complained to the HRC about that, and in due course, this tribunal — constituted by the same Tribunal member as decided liability in this case — decided that there was no discrimination by CIT.[6]
[6] Complainant DT292023 v The Canberra Institute of Technology (Discrimination) [2024] ACAT 42
Significantly, on 27 April 2023, the applicant, prior to the decision of CIT to rescind its offer, wrote to the HRC by email saying:
this has affected my mental health extremely as this is now the second time I have been punished for an irrelevant criminal record
…
I feel like I am unfairly treated as I am a single mother of two children trying to work and show my children what a normal life is and I feel like I just keep getting kicked down over and over again. This has effected me dramatically, I have been back to counselling...
In her statement filed for the remedy hearing, she describes vividly the impact of this discrimination on her. She was not challenged about this. It was not suggested to her that she was not so badly affected or that it was the CIT decision that was the real reason. Without setting out all the description, essentially the applicant says that she has had her PTSD revived to a dramatic effect, causing her to cry uncontrollably when she does not expect it, and to relive her frightening and lonely past. She suffers panic attacks and struggles to get out of bed. She has sought counselling again and sees her GP who has prescribed valium but, due to her repulsion to drugs, is reluctant to take it. Dr Furst confirms all this, and outlines what future treatment might be needed and for how long. This is explained in dealing with quantum of damages.

Cross-examination

The applicant was asked whether the police raid traumatised her. She said it did not. She was asked if she would have taken up the offer of CIT if it was not withdrawn and whether she would have accepted an offer by the respondent of a job if made. She agreed she would.
She was not challenged by any of the statements she has made about the impact of the respondent’s actions on her. She presented as an intelligent, polite and honest person, and there was no attempt to suggest otherwise.
Dr Furst gave evidence via an AV link. His evidence was likewise not challenged. He gave his evidence in a clear and authoritative manner. The main matter put to him was that his report recounting her history did not refer to the CIT events. It was suggested that this may have been the cause of the problems now experienced by the applicant. Dr Furst indicated that although not in his report, he had taken that history from the applicant. He maintained that this conduct of the respondent was the trigger that revived her past PTSD.

The submissions

The respondent’s submissions

The respondent provided its submission first.
It drew attention to the precise findings of discrimination, which were: removing the applicant’s access to the respondent’s systems, placing her on paid leave, and determining it would not extend her temporary contract.[7]
[7] This is the way the respondent described it but the precise wording was “she could no longer have success to the respondent’s systems, could no longer continue to perform her duties and would not be offered an extension to her fixed term contract.”
It pointed out that it was accepted that the applicant had already resigned and was under no legal obligation to offer an extension.
It was accepted that an order for financial compensation is appropriate. It submits that there is no reasonable basis to make an order for reinstatement. This is no longer sought.
It drew attention to the factors in section 53E(4) of the Act. It says that, broadly speaking, these factors reflect community expectations that monetary awards for non-economic loss should adequately compensate a victim for the serious consequence of unequal treatment. Reference is made to Complainant 201908 v Commissioner for Fair Trading (Discrimination) [2021] ACAT 2 (Complainant 201908) and Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (Oracle).
It referred to the need for consistency citing Complainant 201908 and Green v State of Queensland, Brooker and Keating [2017] QCAT 008.
It submitted that the significant factors here include the nature of the detriment, the efforts to minimise the detriment, and the effect on the applicant’s employment status.
As to the first factor, the detriment itself was argued to be different from more egregious conduct involving repeated deliberate targeted and cruel actions calculated to cause hurt, such as denial of club membership as in Kovac v The Australian Croatian Club Ltd (No 2) [2016] ACAT 4 (Kovac (No 2)).
By contrast in this case, it is argued that the decision was made in circumstances where the decisionmaker had believed the Integrity Commissioner had indicated that the applicant should not have access to the systems,[8] and believed there was a real risk to the directorate in continuing that access, and thought she was acting in accordance with her duty. This was said to be conduct engaged in with good intention and not maliciously.
[8] Expressly found not to be so in the liability decision.
Minimisation was said to be the fact that the applicant was paid until the end of the term and not to the prior date of resignation.
It was acknowledged that the communication not to extend was hurtful but that in fact, as she had already resigned, and as there was no entitlement to an extension, legally her status was not directly affected.
It is accepted that the purpose of compensation is to put the applicant in the position she would have been had there not been unlawful discrimination, referring to Kovac (No 2). The loss then, it argues, is limited to emotional distress and not to any change in position.
The respondent provided a schedule of cases where compensation for non-economic loss has been awarded in the ACT for discrimination. It is attached below:

Case	Ground of discrimination/brief description	Compensation for non- economic loss
Butcher v The Key King [2000] ACTDT 3	Disability. Employee terminated on basis could not safely do job with epilepsy.	$2,500
Nester v ACT Fire Brigade [2004] ACTDT 2 and [2005] ACTDT 3	Disability. Employee transferred from operational to non-operational role because of presumed psychological condition.	$2,500
Whiting v ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1	Disability. Refusal of casual shifts in mental health ward on basis of previous injury and workers comp claim.	$2,500
Almassy v Omari and ACT Multicultural Council Inc [2008] ACTDT 2	Disability. Asked to leave Council meeting by President on grounds of presumed mental illness	$1,500
Kwesius and ACT Health [2008] ACTDT 3	Disability. Employee suspended with pay from duties partly due to presumed psychiatric disability	$5,000
Kovac v The Australian Croatian Club Limited (No. 2) (Discrimination) [2016] ACAT 4	Political conviction. Denied membership of Croatian club in context of opposition to nationalist political affiliations of Board.	$30,000
Wang v ACT [2016] ACAT 71	National origin. Entry to ACT clinical internships program ultimately denied because prioritised lower as overseas medical graduate than graduates of ANU/Aus university.	$40,000 at first instance (finding of discrimination overturned on appeal – with Appeal Tribunal noting "issues about the basis" for calculating award)
Abraham v Thomas [2020] ACAT 41	Immigration status. Employee made to work extra hours without pay and to pay employer cash back "for tax".	$13,320.68 described as "damages for embarrassment, humiliation and stress", but actually calculated as economic loss from unpaid work and cashback
Complainant 201922 v Barac [2020] ACAT 37	Disability. Treatment as customer in brothel.	$1,000
Clinch v Rep No 2 [2020] ACAT 68	Gender identity. Vilification in Facebook posts re trans woman.	$10,000
Kidman v Casino Canberra [2020] ACAT 50	Industrial activity. Complainant employee subject to disciplinary action for comments made in media as union representative.	$4,000 (upheld on appeal)
Complainant 201908 v Cmr for Fair Trading [2021] ACAT 2	Irrelevant criminal record. Denied motor vehicle dealer's licence	$15,000
Phillips v ACT [2021] ACAT 22	Disability. Management of workers compensation claim exacerbated complainant's PTSD	$9,000 (upheld on appeal)
Suttor v Bunnings [2021] ACAT 42	Disability. Treatment as customer in wheelchair.	$500
Hollman v ACT (Health) [2023] ACAT36	Disability. Denied access to facilities for COVID testing.	$5,000
Kerslake v Sunol [2023] ACAT 18	Sexuality. Vilification of homosexuals on Facebook (not specific to complainant)	$4,000
Complainant 202012 v ACT (CSD) [2023] ACAT 17	Irrelevant criminal record. In assessment as potential kinship carer- same decision would have been made without consideration of record.	$5,000

The compensation in these cases ranges from $1,000 in the year 2020 to $40,000 in 2016. In the latter case, there was proved a psychiatric condition exacerbated by the discrimination which was of a more egregious kind than here. In almost all the other cases, the awards were for injury to feelings with no established psychological harm.
It is submitted that the amount for general damages should be $8,000. This submission is predicated on the basis that it is compensation for distress and the aggravation of her PTSD is not mentioned. These submissions predate the applicant’s submissions.
In respect of economic loss, it submitted that there is no causative link between the discrimination and any loss of wages.
The applicant’s submissions
The applicant claims general damages, aggravated damages, past loss of wages, future economic loss, and an allowance for future medical expenses.
In respect of general damages, the applicant did provide reference to comparable judgments but has since provided a more extensive list of cases involving pure psychiatric harm in the Courts.
Mr Paul Smith, the applicant’s solicitor, explains that the tort principles provide a guide. Reference is made to Qantas Airways Limited v Gama [2008] FCAFC 69. The Act discussed in that case used the word “may” in relation to the remedies. Here it says “must”. The Full Federal Court said there at [94]:
His Honour’s reasoning in relation to assessment of damages has already been outlined. The damages which can be awarded under s 46PO(4) of the HREOC Act are damages "by way of compensation for any loss or damage suffered because of the conduct of the respondent". Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Ch) the appropriate measure will be analogous to the tortious. That may not be every case. Ultimately it is the words of the statute that set the criterion for any award.[9]
[9] As a matter of interest, the Court went on to say: In any case the discretionary character of the remedy allows an award of an amount “by way of compensation” which does not fully compensate for the loss suffered. In that respect, however, we are not satisfied that his Honour made any error. This was disapproved in Oracle, where it was said at [140]: In our opinion, this submission can be dealt with quite simply. The trial judge did not exercise a discretion not to award damages by way of compensation. He did award damages. Nor did he purport to exercise a discretion not to award damages in accordance with s 46PO(4)(d). In fact, he proceeded to award damages in accordance with that paragraph and he did not purport to exercise a discretion (assuming only for the sake of argument the existence of such a discretion) involving a selection as to the items of loss and damage which were properly the subject of compensation. In those circumstances, any error in that process is properly the subject of appellate review. If the obiter remarks of French and Jacobson JJ in Qantas Airways Ltd v Gama are to be understood as suggesting a contrary approach, then we would respectfully decline to follow them. [Emphasis added]
He also referred to Complainant 201908, in which Presidential Member Robinson helpfully and persuasively summarised some relevant principles as follows:
[16] Compensation under the HRC Act is designed to place the applicant in the position he would have been in had there not been an unlawful act of discrimination against him.[3] While the principles of tort provide a guide, the damage is primarily statutory and determined by reference to the scope and purpose of the HRC Act.[4] The considerations in section 53E(3) of the HRC Act in particular distinguish compensation under the Discrimination Act from that available in tort.
[17] Aggravated damages may be awarded where the defendant behaved “high handedly, maliciously, insultingly or oppressively in committing the act of discrimination.”[5] The applicant’s lawyer submitted that the respondent’s conduct during the hearing exacerbated his injury and I have considered that…
Footnote [3] in the above extract referred to Kovac (No 2) at [45]–[55] and [56] and Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28]. Footnote [5] refers to Hall v Sheiban [1989] FCA 72 and Kovac (No 2) at [24].
The submission starts with the premise that loss must be established, and causation is determined by the material contribution test. That is the conclusion in Kovac (No 2) at [37] and Complainant 201908.[10]
[10] Arguably causation may also be determined by the common sense test explained in March v Stramere [1991] HCA 12
Reference is made to Oracle and Gutierrez v Mur Shipping Australia Pty Ltd [2023] FCA 399. Oracle provides a helpful explanation where the trial judge made an award for general damages that was within the range that had been awarded in the past but was seen as inconsistent with community standards exemplified by awards in personal injury cases.
In assessing general damages, it is pointed out that the applicant has suffered an exacerbation of her diagnosed preexisting psychiatric injury of PTSD as explained by Dr Furst. She has and will require treatment by her GP, counsellor, psychiatrist, and medication. This is supported by Dr Furst. Dr Furst opined that the ongoing care would be for about seven years but qualified that by saying it was only an estimate.
In addition to the psychological harm, it is submitted the compensation should extend to injury to feelings involving humiliation and distress.
It is submitted that the award for general damages should be substantial. Addressing the factors in section 53E(3)(a)–(b) of the Act, the respondent’s conduct impacted the applicant’s right to substantive equality, in that she was unable to return to the workplace from 12 April until 31 May 2023. The impact on her dignity was significant as explained by Dr Furst and by her as well. This is summarised in the liability decision as follows:
[34] The complainant submitted that she has been traumatised by the sequence of events engaged in by the respondent. She submits that the situation in which she is now placed has been brought about by the questionable actions of persons who underestimated the impact of their decisions on her well-being. This situation has enlivened much unnecessary trauma concerning her past and her lengthy relationship involving domestic violence. She has lost trust and hope in a fair deal for people like her.
[35] In correspondence responding to the notification of Ms Dreyer-White’s decision, the complainant submitted to the respondent that she had already disclosed her criminal record in full. She said:
The challenging circumstances of my life contribute greatly to the fact that I now have a criminal record. When applying for jobs I have never withheld any relevant information and have always made a full disclosure of my past.
Following a very traumatic, abusive and neglected childhood, and a partnership in which I was a victim of additional extreme domestic violence, I am now the recipient of counselling and am a very different, stronger, healing person who is a devoted mother to my two children and very determined to be a trustworthy, dependable, and hard-working employee is given the opportunity to prove myself. I have documentation which outlines the childhood, (see attached) and later years’ abuse, which I can share in confidence, and which will provide details of experience as a child, and as an adult, which led to my diagnosed PTSD.
I am articulate, committed to my workplace, experienced in Administration and Customer Service and hold a Working with Vulnerable People authorisation. I acknowledge that I am on paid leave and will remain an employee of the Directorate until close of business on 31 May 2023. On reflection, I take some consolation in the fact that I expressed my current position following an interview, because my demonstrated work ethic, integrity and commitment. My referee report supported my successful application.
[11] This communication was made before the CIT rescinded its offer
I appreciate your facilitation in this project to provide support to me during this negative experience.[11]
The applicant submitted that she had been proud of being a public servant and working full-time. She had been hoping that her hard work would pay off, and she would be able to gain permanent employment. She was demonstrating to her children what it was like to live a normal life. She is now without a work placement and is reliving past trauma.
The period of discrimination, it was submitted, should take into account the previous experience of discrimination that she overcame with the help of Mr Rose. It also extended far past the date of the end of her employment, as no reconsideration was given, and the application to the HRC resulted in no attempt at conciliation and the case was defended. This continued after the respondent knew of the injury it had caused the applicant.
In addition, the fact that the respondent was said to be the second largest employer in the Territory was significant. That might show the number of opportunities for reemployment was significantly lower and that the respondent was not impecunious.[12]
[12] See Bottrill v Sunol [2018] ACAT 21 at [80]
It was submitted that there were no mitigating factors.
In respect of the range of compensation, argument is made about why Kovac (No 2),Wang v Australian Capital Territory [2016] ACAT 71 and Complainant 201908 are different from this case.
Argument is made that the range was more like that in Oracle in 2014, where the sum was $100,000, and in Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827, where the sum was $75,000, and Gutierrez v Mur Shipping Australia PL [2023] FCA 399, where the sum was $90,000.
Another case was seen as too high, and the range was said to be $70,000 to $100,000.
During the argument, I asked about ACT Supreme Court cases dealing with psychiatric harm only, and then Mr Smith handed up a document that contained several decisions on the topic in ACT as well as other jurisdictions.
The ACT cases are:
(a)AB v ACT [2018] ACTSC 16 — PTSD from sexual assault, $100,000 awarded;
(b)HL v HP [2019] ACTSC 299 — sexual assault with PTSD and eating disorder, $150,000 awarded; and
(c)John XXIII College v SMA [2022] ACTCA 32 — sexual assault, $90,000 awarded.
There were two other cases for much more, but they seemed not comparable.
During the argument, counsel for the respondent accepted the range of $70,000 to $100,000 was correct, but argued factors that might reduce the case from that range, such as mitigation and causation.
Before leaving that topic, it is usual to award interest on a past component in the courts. In Kovac (No 2) and Complainant 201908, this was done under the pretext that it was procedural.
As desirable as that may be, it is a substantive entitlement. Until the early 1980s, the ACT Supreme Court did not have the power and no interest was awarded. Similarly in NSW, until what was then section 94 of the Supreme Court Act 1970 (NSW) was enacted, there was no power. In fact, for some years there were cases about retrospective awards.
In respect of medical expenses, no invoices were provided nor particulars to show what the past expenses might have been, and Mr Smith in oral argument said the claim was confined to the future. For the future, drawing on Dr Furst’s estimates about what might be required, it was said there should be allowed 28 GP consultations at $90 per visit. This comes to $2,520. Also, 72 consultations with a psychologist at $300 per consultation, making a total of $21,600; 63 consultations with a psychiatrist at $500 a visit, totaling $31,500; and $15 per month for 84 months for medication. This is said to total $58,880, and reduced by 20% for vicissitudes, amounts to $45,504.
It was noted by Dr Furst that Medicare would normally pay some of these sums.
In respect of economic loss, the applicant has not worked since. She was asked if she had applied for any jobs in the private sector and she said she had not. She said this was because she had not yet worked up the resilience to risk more rejection.
The figures supplied do not indicate whether the amounts are net of tax or gross. It seems that they are gross. Wage loss is paid on net income lost in the past,[13] and net income into the future that is discounted by reference the present value of what would be paid over the period in question and then discounted for vicissitudes.[14] When calculating future amounts, it is usual to discount the sum for vicissitudes and 15% is a standard sum where there are no unusual matters to consider.[15] The figures supplied by Mr Smith are not proven by wage records, but it is likely that the annual salary of $76,591 before tax is correct as there are published pay rates for Administrative Services Officers (ASO), and the amount is roughly what a low grade ASO level 4 would get.
[13] Cullen v Trappell [1980] HCA 10
[14] Todorovic v Waller [1981] HCA 72. The rate chosen is 3% but may be different due to legislation in some jurisdictions.
[15] Wynn v NSW Insurance Ministerial Corporation [1995] HCA at [19]
It is possible to work out the tax using a ready reckoner on the Australian Tax Office (ATO) website. Tax on $76,591 is $15,359.07. The net figure is $61,231.93.
The amount claimed for past loss of wages is $80,570, being for 57 weeks.
Future loss of earning capacity is claimed at $132,032.86. This is over seven years and is multiplied by 30% because Dr Furst puts that as a percentage loss. Another 20% is then deducted for vicissitudes.
A claim is also made for lost superannuation. The amount of superannuation is said to be 11.5% of the gross wage. The loss of superannuation is claimed at $9,955.63 in the past, and $12,147.02 for the future.
A claim is also made for aggravated damages relying on Hall v Sheiban [1989] FCA 72. The aggravating circumstances are said to be the immediacy of what is punitive action in the decision made, making the decision with no background information, giving no consideration to the impact on the applicant, continuing with that decision even after all was made clear, and not even engaging in conciliation. The fact that she had already been through this once at the beginning of her employment was an additional factor. The sum put on that was $10,000 to $15,000.

Consideration

It is common ground that the applicant should be awarded damages for loss of enjoyment of life.
A case about having comparable cases to work with and the impact of inflation on awards is Vulin v Cox [2005] ACTCA 22. There, the trial judge whose background was not in personal injures sought assistance from counsel as to the range of general damages. For tactical reasons best known to counsel, that was not forthcoming. The judge went on to deliver a judgment that was correct in every aspect except for general damages which he assessed at $12,000. This was once a sum that was within a range of awards,[16] but by this time the range was such that the case settled for $31,000.
[16] My age is such that I was practising in that area then.
Whilst the Court explained that there was no tariff, it made clear it was the job of counsel to provide some assistance to ensure any figure arrived at was not so far out of kilter that it was appealable.[17]
[17] See now s 99 of the Civil Law (Wrongs) Act 2002
Here, the applicant had a very difficult early life, and she has done well to become the articulate, good employee that she had been. My impression of her in the hearing was that she was intelligent and sensible and feisty when necessary.
She has suffered in the way earlier described. There is no doubt that she suffered a significant impact because of this action by the respondent.
There is a causation argument. Not referred to by either side are the authorities that deal with the compensable harm that arises when an injury is received but is compounded or overtaken by subsequent matters.
Here, not long after the actions of the respondent, the applicant lost her chance of permanent employment with CIT. It must have compounded the hurt she had already suffered.
It is uncontroversial that in such cases the evidential onus of unraveling the harm attributable to the claim will be on the defendant or respondent, and the wrongdoer is liable for all loss that ensues if it is foreseeable.
In Mahony v J Kruschich (Demolitions) Pty Ltd & Anor [1985] HCA 37,, the following was decided:
A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor's negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor’s negligence alone.
This was explained in Skea v NRMA Insurance Ltd [2005] ACTCA 9, where the Court also explained the evidential onus point arising from Watts v Rake [1960] HCA 58 and Purkess v Crittenden [1965] HCA 34.
It was submitted that Dr Furst may have misdirected his attribution of the cause, as he focussed on the job loss and not on the other aspects of the discrimination. However, it is clear from the history detailed above that the applicant had suffered significant mental harm before the CIT event.
Here, the Tribunal must make an order and the only one it might make is for compensation. It is common ground that the measure of any award is the amount needed to put the applicant in the position she would have been as much as possible as if the wrong had not occurred. This is the usual measure in tort cases and is distinguished from expectation damages that can be awarded in contract cases.
The parties both refer to Oracle, and Kovac (No 2) at [37], and Complainant 201908.
From these cases, the range of damages in tort cases is relevant in assessing the compensation. It should be borne in mind that most of these cases are negligence claims and injury to feelings are not compensated but diagnosed psychiatric harm is. This had been the common law,[18] and is continued in the Civil Law (Wrongs) Act 2002 in section 35.
[18] See Windeyer J at [3] in Mount Isa Mines Ltd v Pusey [1970] HCA 60
On the other hand, such compensation is available in intentional torts.
Another observation is that the value of money changes with inflation. Over the years, the standard amounts that are awarded for similar injuries have increased incrementally.
Both sides accept that the factors outlined section 53E of the HRC Act can make a difference to what is awarded. It seems clear from Oracle that the amount cannot be less than what is the proper compensation, but it may not be as high as it could be if there are mitigating factors or could be higher if there are aggravating factors.
I accept that, subjectively, the decision by the original decisionmaker was made in good faith, in circumstances that would explain her need for haste and an understandable alarm she may have felt. Objectively, however, as found in the liability decision, that was wrong and, in any event, there has been ample opportunity by the respondent to get it right.
This might have theoretically meant that the impact on the applicant was less, and she did not suffer as much as she might have. Here, that is a difficult proposition.
It is true that the applicant got some pay until 31 May rather than 25 April, but that did not lessen the impact on her, though it would reduce any claim for past wage loss.

On the other hand, a strong case is made for aggravated damages. Aggravated damage is a form of compensation and if allowable would be in an amount argued for. A familiar example is an unsuccessful plea of truth in a defamation claim.
Here, in my opinion, the circumstances are not so egregious as to warrant such additional damages.
In respect of general damages, the only reason why it would be less than the ranges explained by the applicant’s lawyer, is if there was a causation issue.
Here, the events that occurred with CIT were clearly foreseeable and, in my view, the applicant is entitled to full compensation for general damages notwithstanding the CIT action.
On the other hand, the harm suffered was aggravation and not the original cause of the psychological harm. It was also something that she was always vulnerable to. That might distinguish it from the worst case, but it is still significant harm that should be compensated properly.
I have looked at the tribunal awards. In fact, I decided some of them. It is likely that they are falling behind amounts that are awarded in like cases elsewhere, and in any event need to be looked at bearing in mind the impact of inflation.
However, I do not see any reason to displace the need to look at the comparable tort cases which clearly start at $70,000 and may well exceed $100,000.
Mr Smith had asked for an additional sum for injury to feelings, but the awards for psychological harm include such considerations.
In my view, the amount for general damages should be less than the median figure of the range suggested by the applicant but be more than the lowest amount. For general damages, the award is $80,000.
Loss of wages and future economic loss is also to be assessed. For the same reasons advanced in respect of general damages, the impact of the CIT decision does not break the chain of causation.
On the other hand, the respondent was not contractually bound to renew the employment and may have for other reasons found that it did not need the applicant’s services. At the time, it seemed unlikely, as they were short staffed. I accept that there should be a discount for the possibility that she may have lost work for valid reasons, but that can be reflected in the reduction for vicissitudes that might otherwise apply.
The future might extend to seven years as indicated in Dr Furst’s reports, but the main reason for the applicant not working is the need to get back to a position where she has the capacity to take the eventual knockbacks she may endure while looking for work. She has not indicated any physical obstacle and there would be some jobs she might be more likely to get without any concern about her past. The precise loss is imponderable, but it is necessary to find some way to compensate her.
Damages for loss of employability were often awarded as general damages called a buffer or a cushion.[19]
[19] See as an example Oliver v Roberts [2018] ACTCA 35
The net past loss of wages undiscounted from the date the applicant ceased to be paid until the date of the hearing — from 31 May 2023 to 15 October 2024, which is 71 weeks and 6 days — is $61,231.93 x 72/52 = $84,782.67.
This should be discounted as she was vulnerable to the trauma, and there was no guarantee that she would remain with the ACT Government otherwise. There is no reason to think she would not, so the discount of 30% would more than allow for such vicissitudes. This leaves a figure for past wage loss of $59,347.87.
If it is assumed that the wage loss continues for seven years undiscounted, the present value of a weekly loss of $1,177.54 on 3% tables is $38,8587.25.[20]
[20] The present value of $1 per week at 3% for 7 years is 330; Tables are provided by accountants used in such cases.
This is not a case where such mathematical calculations are appropriate, but a buffer is. The cases exhort a need to utilise calculations to arrive at the figure, as unguided by some reference, the figure is too nebulous.
If the assumptions made by the applicant’s lawyer are reasonable, that figure would be reduced by allowing only 30% and further deducting 20% for vicissitudes, leaving the amount as $93,260.94.
The advantage of this calculation is it is supported by the evidence of Dr Furst and that evidence is not challenged.
The selection of 30% on one view may be too high a discount. The selection of the 20% discount for vicissitudes may be too low. I think it is, as she was vulnerable before the incident, and she may not have continued to earn money from the respondent for reasons other than discrimination. On the other hand, she impresses me as an intelligent, hardworking and valuable employee who would normally be expected to be given a chance by many.
Conscious of the uncertainties in any calculation, it seems to me a reasonable figure to allow for future loss of earning capacity is $80,000. This is approximately the same calculation but using a further discount of 30% not 20%.

Medical expenses

In the absence of invoices or particularization, I do not propose to allow anything for the past medical expenses. At the hearing, Mr Smith indicated that all that was now sought was an amount for the future. The figures provided by Mr Smith are based on information from Dr Furst. I accept that the figures for the cost of such treatment are reasonable. In a perfect world, the amount of treatment he advises would be beneficial but in practical terms it seems to me to exceed what is likely to be used. Also, I don’t think enough has been taken off for the preexisting vulnerability. The claim is for $46,504 being $56,880 reduced by 20% for vicissitudes.
The amount should be reduced further. A discount of 30% not 20% should be used and the undiscounted amount should be reduced by at least 20% as, in my opinion, the number of visits is more than what is likely. I have not considered the impact of Medicare, and the applicant will need to ask the Health Insurance Commission about what needs to be done about this. In common law cases, it is usual to order that 10% of the judgment be paid to the Health Insurance Commission and 90% to the plaintiff. I will address this in the orders.
Putting that to one side, the amount for future medical expenses is in effect a buffer and using my conclusions the amount is $31,852.80, and I will allow $30,000.
There is a claim for loss of superannuation. The assessment used was 11.5% of the loss of the past and future. It is my understanding that this is the rate paid by the ACT. She may not have continued to be employed by the ACT of course, but she would be entitled to superannuation, perhaps less, with other employers.
The past wage loss allowed here is $59,347.87, so 11.5% is for the past loss of superannuation, being $6,825.
Future loss is $80,000 x 11.5% = $9,200.
The damages then are as follows:
(a)General damages: $80,000;
(b)Past wage loss: $59,347.87;
(c)Future loss of earning capacity: $80,000;
(d)Allowance for future medical expenses: $30,000;
(e)Past superannuation loss: $6,825; and
(f)Future loss of superannuation: $9,200.
This adds up to $265,372.87.
In addition to Medicare, the Social Security Act1991 (Cth) makes provision for refunds of benefits paid and a determination of a period where future benefits are not payable. The way this works is complicated, and the relevant department will need to be asked. My impression is that the amounts paid for discrimination are exempt, but other aspects of the claim may not be. In respect of the Medicare payments, as there is no award for the past, there may be no amount payable to Medicare. However, the relevant legislation requires the payer, as well as the payee, to consult with the relevant departments and ensure that the Acts are complied with. I will stay the order for payment to allow that to happen.
The orders will be:
(a)The respondent is to pay compensation of $265,372.87 to the applicant.
(b)The order for payment is stayed for 28 days from the date of the order.
The Tribunal notes that the parties are to enquire of the Department of Social Security and the Health Insurance Commission as to what, if any, monies from this should be paid to them and, if need be, the parties have leave to apply to amend the orders to comply with such obligations.

………………………………..
Senior Member B Meagher SC

**************
Amendments

9 December 2024 Replacing “On 6 April 2023, the ACT Integrity Commission (Integrity Commission) executed a warrant to search the applicant’s home in connection with a person that they were investigating and who the applicant had been seeing. There was no suggestion that the applicant had done anything wrong.” with “On 6 April 2023, ACT Police executed a warrant to search the applicant’s home in connection with a person that they were investigating and who the applicant had been seeing. There was no suggestion that the applicant had done anything wrong. The police provided complainant’s criminal record to the ACT Integrity Commission (Integrity Commission) in case she had not been frank as to her criminal record on her pre-employment document.” in paragraph 14.

Date of hearing:

15 October 2024

Applicant:

Paul Smith, ACT Legal Aid Office

Respondent:

Ms K Weir, Counsel instructed by

ACT Government Solicitor