Deerubbin Local Aboriginal Land Council v Hunter - [2012] NSWADTAP 15

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15
Hearing dates: 3 February 2012
Decision date: 07 May 2012
Jurisdiction: Appeal Panel - Internal
Before: Magistrate N Hennessy, Deputy President
R Perrignon, Judicial Member
J Newman, Non-Judicial Member
Decision:
1. The Tribunal's first order, that:
The complaint of unlawful discrimination on the ground of disability is substantiated.
is affirmed.
2. The Tribunal's second order that:
The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision.
is set aside.
3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005.
4. In substitution for the Tribunal's second order, the following order is made:
The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days.

Catchwords: APPEAL - disability discrimination in work - whether Tribunal breached procedural fairness in selecting a single comparator when several were put forward - identification of the circumstances in which a comparison should be made for the purposes of the differential treatment element of direct discrimination - onus of proof and the drawing of inferences in discrimination complaints - calculation of economic loss
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52
Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51
Building Professionals Board v Ball [2008] NSWADTAP 70
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Fenwick v Beveridge Building Products Pty Ltd (1985) 62 ALR 275
Purvis v State of New South Wales (2003) 217 CLR
Texts Cited: Williams CR, "Burdens and Standards in Civil Litigation" (2003) Sydney Law Review 9
Category: Principal judgment
Parties: Deerubbin Local Aboriginal Land Council (Appellant)
Mr D Hunter (Respondent)
Representation: Counsel
K Eastman (Appellant)
M Tibbey (Respondent)
Chalk & Fitzgerald (Appellant)
Legal Aid NSW (Respondent)

File Number(s): 119044
Decision under appeal

Citation:

Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202

Date of Decision:

2011-08-24 00:00:00

Before:

Equal Opportunity Division

File Number(s):

081053

REASONS FOR DECISION

Introduction

In late 2004 Mr Hunter's name was put on a casual register to perform monitoring and excavation work for the Deerubbin Local Aboriginal Land Council. He was offered work from time to time which involved walking behind earthmoving equipment and looking for Aboriginal cultural artefacts. Mr Hunter had an epileptic fit at one of the work sites on 4 March 2005. After that, until 19 October 2005, the Land Council offered him significantly less work than they had previously offered him. Mr Hunter had two seizures on the night of 19 October 2005, following which he was hospitalised. He was not offered any work after that date and lodged a complaint of disability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADTAP 15
Decision Date: 07 May 2012

CaseChat Overview and Summary

The matter before the court was an appeal from a decision of the Anti-Discrimination Board of New South Wales. The respondent, Deerubbin Local Aboriginal Land Council, was found to have unlawfully discriminated against the applicant, Mr Hunter, on the ground of disability. The central issue was whether the Tribunal erred in its approach to calculating economic loss. Specifically, the court had to determine whether the Tribunal breached procedural fairness by selecting a single comparator for the comparison when several were proposed, and whether the Tribunal correctly identified the circumstances for making a comparison under the direct discrimination provisions. Additionally, the court examined the onus of proof and the drawing of inferences in discrimination complaints, as well as the calculation of economic loss.

The court found that the Tribunal did not breach procedural fairness in selecting a single comparator. The court reasoned that while multiple comparators were proposed, the Tribunal was entitled to select one comparator and the applicant had not demonstrated that the selection of a single comparator led to an unjust outcome. Regarding the identification of the circumstances for making a comparison, the court held that the Tribunal's approach was consistent with the requirements of the legislation. The court also determined that the Tribunal did not err in its calculation of economic loss, finding that the Tribunal had properly applied the relevant principles.

As a result of the appeal, the Tribunal's first order, that the complaint of unlawful discrimination on the ground of disability was substantiated, was affirmed. However, the Tribunal's second order, directing the respondent to pay a specific amount to Mr Hunter, was set aside. The court extended the appeal to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the relevant period. In substitution for the Tribunal's second order, the court ordered that the Deerubbin Local Aboriginal Land Council pay Mr Hunter a different amount within 28 days.

Orders

Orders of the court

1. The Tribunal's first order, that:

The complaint of unlawful discrimination on the ground of disability is substantiated.

is affirmed.

2. The Tribunal's second order that:

The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision.

is set aside.

3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005.

4. In substitution for the Tribunal's second order, the following order is made:

The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15
Hearing dates:	3 February 2012
Decision date:	07 May 2012
Jurisdiction:	Appeal Panel - Internal
Before:	Magistrate N Hennessy, Deputy President R Perrignon, Judicial Member J Newman, Non-Judicial Member
Decision:	1. The Tribunal's first order, that: The complaint of unlawful discrimination on the ground of disability is substantiated. is affirmed. 2. The Tribunal's second order that: The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. is set aside. 3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005. 4. In substitution for the Tribunal's second order, the following order is made: The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days.
Catchwords:	APPEAL - disability discrimination in work - whether Tribunal breached procedural fairness in selecting a single comparator when several were put forward - identification of the circumstances in which a comparison should be made for the purposes of the differential treatment element of direct discrimination - onus of proof and the drawing of inferences in discrimination complaints - calculation of economic loss
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Building Professionals Board v Ball [2008] NSWADTAP 70 Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Fenwick v Beveridge Building Products Pty Ltd (1985) 62 ALR 275 Purvis v State of New South Wales (2003) 217 CLR
Texts Cited:	Williams CR, "Burdens and Standards in Civil Litigation" (2003) Sydney Law Review 9
Category:	Principal judgment
Parties:	Deerubbin Local Aboriginal Land Council (Appellant) Mr D Hunter (Respondent)
Representation:	Counsel K Eastman (Appellant) M Tibbey (Respondent) Chalk & Fitzgerald (Appellant) Legal Aid NSW (Respondent)
File Number(s):	119044
Decision under appeal	Citation: Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202 Date of Decision: 2011-08-24 00:00:00 Before: Equal Opportunity Division File Number(s): 081053