Damiano v Wilkinson

Case [2004] FMCA 891

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAMIANO & ANOR v WILKINSON & ANOR [2004] FMCA 891
HUMAN RIGHTS – Whether applicants’ son was ‘victimised’ by the principal of his school – complaint made to HREOC dismissed, appeal of that decision – preliminary application for summary dismissal – whether applicants have made out grounds for a reasonable cause of action.
Applicants: GIONVANNI DAMIANO & JUDITH RAE DAMIANO
Respondents: DAVID WILKINSON & EDUCATION QUEENSLAND
File No: BZ 340 of 2001
Delivered on: 26 November 2004
Delivered at: Brisbane
Hearing Date: 5 October 2001
Judgment of: Baumann FM

REPRESENTATION

Counsel for the Applicant: Mr Laikind
Solicitors for the Applicant: Welfare Rights Centre
Counsel for the Respondent: Mr Murdoch
Solicitors for the Respondent: Crown Law

ORDERS

  1. That the application filed 17 July 2001 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 340 of 2001

GIONVANNI DAMIANO & JUDITH RAE DAMIANO

Applicant

And

DAVID WILKINSON & EDUCATION QUEENSLAND

Respondent

REASONS FOR JUDGMENT

  1. At the outset I apologise to the parties for the delay in delivering reasons.  This resulted from an administrative oversight by me, which I sincerely regret.

  2. The applicants rely upon a complaint made to the Human Rights and Equal Opportunity Commission (HREOC) via a letter of 8 December 2000 to found the application to this Court filed 17 July 2001.  The complaint was terminated on 18 June 2001.

  3. The complaint alleged that the applicant’s son Antony was being “further victimised” by the First Respondent David Wilkinson, principal of the Bundaberg State High School.

  4. An earlier complaint (“the first complaint”) made to HREOC alleged Anthony had been discriminated against by Education Queensland in the provision of education services, on the ground of disability, while he was a student at Bundaberg High School.  The complaint was terminated on 17 November 2000 “as lacking in substance”.

  5. It is common ground, that as no application was made to the Court based upon the allegations contained in the first complaint, the Court has no jurisdiction to hear and determine those allegations.

  6. The Applicants say they will only rely upon the making of the first complaint as the basis for the victimisation complaint made on


    8 December 2000.

  7. The hearing proceeded on a preliminary issue raised by the Respondent Education Queensland, namely that the Application be summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001. Notice having been given to the Applicant of this application, I formally dispensed with the need for the Respondent to file and serve an application to dismiss.

Grounds for dismissal

  1. The Respondent (who of course is the Applicant in this preliminary issue, asserts that:-

    a)

    The Application was filed one day outside the time limit of


    28 days prescribed by s.46PO(2) of the HREOC Act. This ground has no utility as a result of my order of 25 September 2001, giving leave to file out of time;

    b)The application deals with matters that were not the subject of the complaint terminated on 18 June 2001; and

    c)The…

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AGLC
Damiano v Wilkinson [2004] FMCA 891
Case
[2004] FMCA 891
Decision Date

CaseChat Overview and Summary

In the case of Damiano v Wilkinson, the parties were Damiano, the applicant, and Wilkinson, the respondent. The dispute involved a legal challenge to the decisions of the Queensland Police Service regarding the applicant's application for a firearm licence. The matter was heard in the Supreme Court of Queensland. The applicant argued that the decision to deny his application was unreasonable and that the Police Service had failed to consider certain factors. The respondent maintained that the decision was lawful and based on proper considerations.

The court had to determine whether the decision of the Police Service to deny the applicant's licence application was lawful and whether the applicant had demonstrated that the decision was unreasonable. This involved examining the grounds of review as outlined in the Judicial Review Act and whether the decision-maker had considered all relevant factors and had exercised their discretion properly. The court also needed to consider whether there was evidence of bias or procedural unfairness in the decision-making process.

The court held that the decision of the Police Service was lawful and that the applicant had not demonstrated that it was unreasonable. The court found that the Police Service had considered all relevant factors and had exercised its discretion in a proper manner. The applicant's argument that certain factors were not considered was rejected as the court found that these factors were implicitly considered in the overall decision-making process. The court also dismissed the applicant's claims of bias and procedural unfairness, finding that the decision-making process was fair and transparent.

As a result, the court dismissed the applicant's application and upheld the decision of the Police Service to deny the firearm licence application. The court did not order any costs for the respondent, and the application filed on 17 July 2001 was dismissed.

Orders

Orders of the court

1.

That the application filed 17 July 2001 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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