Deerubbin Local Aboriginal Land Council v Hunter

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.