Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Ferguson v Shoalhaven City Council [2023] NSWCATAD 276 Hearing dates: 8 February 2023, 30 March 2023, 1 June 2023 Date of orders: 2 October 2023 Decision date: 24 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey Senior Member
J Herberte, General MemberDecision: 1. The applicant’s claim of racial discrimination is substantiated in part.
2. The remainder of the applicant’s complaint of racial discrimination is dismissed.
3. The applicant’s complaint of victimisation is substantiated.
4. An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days of the date of publication of these reasons for decision.
5. Damages by way of compensation in the sum of $10,000 is to be paid to the applicant within 28 days of the date of publication of this decision.
6. The respondent shall take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now put in place by the respondent.
7. Within 12 months of the date of publication of this decision, the respondent shall undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.
Catchwords: HUMAN RIGHTS – Racial Discrimination - Victimisation
Legislation Cited: Anti-Discrimination Act, 1977 (NSW)
Cases Cited: Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143
Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Commission of Corrective Services v Aldridge [2000] NSWADTAP5;
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24;
Caton v Richmond Club Ltd [2003] NSWADT 202;
Commission of Corrective Services v Aldridge [2000] NSWADTAP5;
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168
Grogan and Ors v First Rate Leisure Pty Limited and Ors [2007] NSWADT 294;
Hall v A&A Sheiban Pty Ltd [1989] FCA 72; 20 FCR 217
Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99
Texts Cited: Rees, Rice and Allen, Australian Anti-Discrimination Law, Federation Press, Third Edition 2018
Principal judgment
Category: Principal judgment Parties: Geoffrey Ferguson (Applicant)
Shoalhaven City Council (Respondent)Representation: Counsel:
Solicitors:
S McIntosh (Respondent)
Applicant (Self-represented)
Marsdens Law Group (Respondent)
File Number(s): 2022/00167304 Publication restriction: Nil
REASONS FOR DECISION
The parties
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This was a complaint of racial discrimination and victimisation made by the applicant, Mr Geoffrey Ferguson (who will be referred to as ‘the applicant’) against the Shoalhaven City Council (‘the Council’ or ‘the respondent’). It was accepted between the parties that the applicant is a First Nations Aboriginal man.
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Holiday…
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- Case
- [2023] NSWCATAD 276
- Decision Date
CaseChat Overview and Summary
The central legal issues centred around whether the Council's actions constituted racial discrimination and victimisation under relevant legislative provisions. The court had to examine the evidence presented to ascertain if the Council's conduct was discriminatory or retaliatory, as well as to determine the appropriate remedies if the claims were upheld. In examining the evidence, the court considered the context, the nature of the interactions, and the Council’s policies and practices.
The court found that while the applicant's claim of racial discrimination was substantiated in part, it was not upheld in full. The court held that the Council’s actions did constitute victimisation as they were retaliatory in nature. The court ordered that an apology be issued to the applicant within 28 days, along with compensation of $10,000, also within 28 days. Additionally, the Council was directed to review the bar on the applicant accessing its parks and to undertake anti-discrimination training for all relevant personnel within the specified timelines.
The court’s decision emphasised the importance of adhering to anti-discrimination laws and ensuring that public authorities operate in a manner that respects the rights of all individuals. The remedies provided were designed to address the harm suffered by the applicant and to prevent future occurrences of similar issues.
Orders
Orders of the court
1. The applicant’s claim of racial discrimination is substantiated in part.
2. The remainder of the applicant’s complaint of racial discrimination is dismissed.
3. The applicant’s complaint of victimisation is substantiated.
4. An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days of the date of publication of these reasons for decision.
5. Damages by way of compensation in the sum of $10,000 is to be paid to the applicant within 28 days of the date of publication of this decision.
6. The respondent shall take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now put in place by the respondent.
7. Within 12 months of the date of publication of this decision, the respondent shall undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.
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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