Gama v Qantas Airways Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAMA v QANTAS AIRWAYS LTD [2006] FMCA 11

HUMAN RIGHTS – Race and disability discrimination in employment – interlocutory application to strike out certain allegations from the applicant’s points of claim – whether allegations of matters pre-1998 can be heard – whether proceedings of this nature fall under the ambit of s.14 Limitation Act 1969 (NSW) – whether the points of claim contain allegations which arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. 

Human Rights and Equal Opportunity Commission Act 1986, s.46PO
Limitation Act 1969 (NSW), s.14(1)
Judiciary Act 1903 (Cth), s.79

Shahbahram Ardeshirian v Robe River Iron Associates (1993) 116 ALR 173
Charles v Fuji Xerox Australia Pty Ltd [2000] 105 FCR 573
Travers by her next friend, Travers v New South Wales [2000] FCA 1565
Bender v Bovis Lend Lease Pty Ltd [2003] 175 FLR 446

Applicant: WILLIAM CHARLES GAMA

Respondent: QANTAS AIRWAYS LTD

File Number: SYG 1488 of 2005

Judgment of: Raphael FM

Hearing date: 22 December 2005

Date of Last Submission: 22 December 2005

Delivered at: Sydney

Delivered on: 16 January 2006

REPRESENTATION

Counsel for the Applicant: Ms P Gormly

Solicitors for the Applicant: Agostini Jarrett Pty Ltd

Counsel for the Respondent: Ms K Eastman

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The applicant is required to file and serve an amended Points of Claim to give effect to these reasons within 14 days.

2. Costs of the application to be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1488 of 2005

WILLIAMS CHARLES GAMA

Applicant

And

QANTAS AIRWAYS LTD

Respondent

REASONS FOR JUDGMENT

1. The applicant was a long time employee of Qantas Airways. He joined the company in February 1984 as an aircraft engineer at Mascot. He left its employment on 25 October 2002. He was involved in a work accident in 1992 and further work related incidents in 1996, 1998 and 2000. He took time off work in relation to these incidents and claimed workers compensation. The applicant alleges that during his employment he was the victim of racial and disability discrimination. On 18 July 2003 Mr Gama completed a complaint form and forwarded it to the Human Rights and Equal Opportunity Commission (“HREOC”). He complained about two individuals at the Qantas Heaving Engineering Division in Mascot. On page 3 of the complaint form in response to the question “When did this happen?” the applicant has responded with the words “From 1998 to date and continuing.” Upon receipt of the complaint the matter was considered by a delegate of the president who wrote to Qantas on 26 September 2003 requesting a response. In paragraph 9 of that letter the delegate says:

   “Under section 46PH(1)(b) of the HREOCA, I have discretion not to inquire into a complaint where more than 12 months has elapsed since the alleged act. In deciding whether or not to exercise this discretion I have regard to such…