Johnson v Commissioner of Police, New South Wales Police

[2004] NSWADT 198

CITATION:	Johnson v Commissioner of Police, New South Wales Police [2004] NSWADT 198
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT David Johnson RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	031125
HEARING DATES:	4/05/2004
SUBMISSIONS CLOSED:	05/04/2004
DATE OF DECISION:	09/10/2004
BEFORE:	Rees N - Deputy President; Gill M - Non Judicial Member; Monaghan-Nagle L - Non Judicial Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 Director General of Education v Breen [1982] IR 93 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 Paff v Speed (1961) 105 CLR 549
REPRESENTATION:	APPLICANT D Hillard, solicitor RESPONDENT E Brus, barrister
ORDERS:	1.Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $15,000 by way of damages; 2.Within 42 days of the date of this order the respondent must take all necessary steps to determine the applicant’s application to join the NSW Police Service without reference to the existing standard for visual acuity; 3.If the applicant’s application to join the NSW Police Service is successful, the respondent must take all necessary steps to attest the applicant as a probationary constable at the next available attestation ceremony at the Police College, subject to the applicant having completed all outstanding training requirements as determined by the Principal of the Police College; 4.In the event that the applicant’s application to join the NSW Police Service is not successful, the respondent is to pay to the applicant, within 28 days of notifying him that his application was not successful, a further sum of $20,916.05, plus interest from 5 May 2004 calculated in accordance with paragraphs [39] and [40] of the Reasons for Decision, by way of damages for loss; 5.Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders

Introduction

1 In this case the applicant, Mr David Johnson, claimed that the respondent, the Commissioner of Police, unlawfully discriminated against him on the ground of disability in August 2001 by rejecting his application to join the NSW Police Service. A few days prior to the commencement of the hearing the Commissioner admitted that the conduct of his employees towards Mr Johnson amounted to unlawful discrimination. As some of the remedies which should be awarded to Mr Johnson were contested, the case proceeded to hearing on that basis alone.

2 The case was heard by the Tribunal in Sydney on 4 May 2004. Both parties were legally represented: Mr Hillard represented the applicant and Ms Brus represented the respondent.

Background

3 The events that lead to the Commissioner unlawfully discriminating against Mr Johnson on the ground of disability were not in dispute and may be stated briefly. This information is drawn from the Points of Claim and Points of Defence filed by the parties, from the report of the President of the Anti-Discrimination Board, and from the statements of various witnesses which were tendered without objection.

4 In August 2000 Mr Johnson successfully applied to join the NSW Police Service. He commenced training on 4 September 2000. There are a number of steps in the two-year process of becoming a police officer. The first step involves admission to the academic component of the program which is conducted jointly by Charles Sturt University and the Police College in Goulburn. For the first 12 months academic training is conducted at that University and at the Police College.

5 The second step in the process of becoming a police officer is for a recruit to pass the NSW Police Professional Suitability Assessment. This assessment takes place when a person initially applies to join the NSW Police Service and then again at the completion of the first 12 months of the academic program.

6 Prior to admission to the academic component of the program a recruit must satisfy the Commissioner that he or she meets the health and character requirements of the NSW Police Professional Suitability Assessment. In order to satisfy the health requirements recruits are required to undergo, at their own expense, medical examinations by a general practitioner, an audiologist, and an optician or an ophthalmologist. Those health practitioners are required to conduct various tests and to complete forms in which the test results are recorded. Employees and agents of the Commissioner examine these test results in order to determine whether a recruit has satisfied the health requirements, which are a pre-condition for admission to the academic component of the program. After successfully completing the first 12 months of the academic program, and further professional suitability assessment, recruits are attested as probationary constables.

7 During the second 12 months of the program further academic training takes place by way of distance education whilst the recruit works as a probationary constable with the NSW Police Service. This case concerns a recruit who was not allowed to proceed to the second 12 months of the program. After Mr Johnson had completed the first 12 months of the academic program, he was told by a representative of the Commissioner that he could not be attested as a probationary constable because he did not satisfy one of the health requirements.

8 The Commissioner admitted the following allegations made by Mr Johnson in his Points of Claim:

(a) Mr Johnson suffers from a disability being an impairment of visual acuity,

(b) Mr Johnson applied for recruitment as a police officer in August 2000 and submitted a completed Professional Suitability Assessment as part of that application,

(c) On 15 August 2000 Mr Johnson was informed by letter from the NSW Police Service that he had been accepted for entry to the Diploma of Policing Practice,

(d) On 4 September 2000 Mr Johnson attended the NSW Police Academy and commenced studies for the Diploma of Policing Practice as a member of class DPP9,

(e) Between September 2000 and August 2001 Mr Johnson successfully completed all of his training requirements, including a placement at the Newcastle Police Station; during this period he was not advised of any difficulties or dissatisfaction with his training results,

(f) In June 2001 Mr Johnson supplied the Commissioner with visual acuity test results which had been recorded by his own optometrist, Mr Steven Gregory,

(g) As a result of Mr Johnson’s impaired visual acuity the Commissioner declined to offer him employment as a probationary constable,

(h) The decision by the Commissioner to decline Mr Johnson’s application to join the NSW Police Service constituted discrimination on the ground of disability in employment as proscribed by s 49D(1)(b) of the Anti-Discrimination Act1977 (NSW) (‘the Act’).

9 The admission referred to in sub-paragraph (h) of the previous paragraph did not constitute an admission of liability by the Commissioner because from the time Mr Johnson lodged his complaint of discrimination on the ground of disability with the President of the Anti-Discrimination Board on 22 November 2002, until 30 April 2004, which was only a few days prior to the scheduled hearing of Mr Johnson’s complaint by this Tribunal, the Commissioner maintained that his decision to refuse Mr Johnson’s application for employment was quite lawful because Mr Johnson was unable to perform the inherent requirements of the position of a police officer due to his disability. Inability to perform the inherent requirements of a particular job is a complete defence to the statutory wrong of refusing to offer a person employment because of his or her disability (see s 49D(4) of the Act). This defence was ‘pleaded’ by the Commissioner in his Points of Defence.

The Commissioner’s admission of liability

10 On 30 April 2004 the Commissioner advised the Registrar of the Tribunal and the applicant’s solicitor that he no longer contested liability for Mr Johnson’s complaint of discrimination on the ground of disability. At the hearing on 4 May 2004 counsel for the Commissioner was granted leave to amend paragraph 17 of the Points of Defence by deleting the Commissioner’s earlier reliance on the inherent requirements defence set out in s 49D(4) of the Act. The effect of this amendment was that the Commissioner admitted a contravention of s 49D(1)(b) of the Act on the ‘pleadings’.

11 Mr Johnson had also claimed that the Commissioner had contravened s 49D(1)(a) of the Act which renders it “unlawful for an employer to discriminate against a person on the ground of disability in the arrangements the employer makes for the purpose of determining who should be offered employment”. As the Commissioner did not admit this allegation, and as it makes no difference to the remedies which may be awarded to Mr Johnson in this case whether the Commissioner contravened this provision as well as s 49D(1)(b), there is no need to consider it further.

12 Section 49D(1)(b) of the Act renders it “unlawful for an employer to discriminate against a person on the ground of disability in determining who should be offered employment”. In order for an applicant to succeed in a complaint based on a contravention of s 49D(1)(b) of the Act it is necessary for the Tribunal to be satisfied that following material facts existed or occurred at the time the respondent is alleged to have breached the Act: (1) the respondent was an employer within the meaning of the Act, (2) the applicant had a disability within the meaning of the Act, (3) the applicant was a person who sought employment with the respondent, and (4) when determining whether to offer the applicant employment the respondent discriminated against him/her on the ground of his/her disability.

13 Item (4) is given meaning by s 49B of the Act which defines “discrimination on the ground of disability”. Section 49B contains definitions of what are generally known as direct discrimination and indirect discrimination. As it was agreed between the parties that this was a case of direct discrimination, s 49B(1)(a) is the relevant part of the statutory definition of discrimination on the ground of disability. There are two elements to the statutory definition of direct discrimination: differential treatment and causation (see Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5).

14 Differential treatment is the shorthand term given to that part of the statutory definition of direct discrimination which is concerned with establishing whether the respondent treated the applicant less favourably than he treated, or would have treated, a person who did not have the applicant’s disability in the same or similar circumstances. Causation is a descriptive term used to describe the grounds or reasons for any differential treatment. In the words of the statute, it is necessary to consider whether the respondent treated the applicant as he did on the ground of the applicant’s disability. The applicant’s disability must have had a “causally operative effect” (Street CJ in Director General of Education v Breen [1982] IR 93 at 95) upon the decision by the respondent to afford the applicant differential treatment in order for there to be a finding that the respondent treated the applicant as he did on the ground of the applicant’s disability. If there were numerous reasons for the respondent’s impugned conduct, the applicant’s disability need be only one of those reasons in order for it to have had a causally operative effect upon that conduct. It is not necessary to establish that the applicant’s disability was a dominant or substantial reason for the respondent’s impugned conduct (see s 4A of the Act).

15 By his admission that his treatment of the applicant fell within s 49D(1)(b) of the Act the respondent has admitted the four matters set out in paragraph [12]. The respondent admitted that the applicant had, and continues to have, a “disability” within the meaning of the statutory definition of that term, which is found in s 4 of the Act. It was not in dispute that the applicant suffers from amblyopia, which is the medical term to describe loss of visual acuity without structural abnormality of the visual pathway and which is not correctable by optical means. In terms of the statutory definition of “disability”, which is expressed in functional rather than medical terms, the applicant’s condition clearly falls within paragraph (a) of that definition, which is “total or partial loss of a person’s bodily or mental functions or of a part of a person’s body”. It was not in dispute that the applicant has partial loss of function of his left eye. It is unnecessary to go into the details of that loss of function, which is relatively mild, in order to deal with the outstanding issues in this case.

The remedies claimed by the applicant

16 In his Points of Claim Mr Johnson sought an order for damages by way of compensation, an order that the Commissioner permit him to graduate as a probationary constable and appoint him to an appropriate Local Area Command as a probationary constable, and such other orders as the Tribunal sees fit.

17 In written submissions handed to the Tribunal on 4 May 2004, Mr Hillard, the solicitor for the applicant, provided details of the claim for damages and re-phrased the claim for injunctive-style orders concerning Mr Johnson’s employment with the Commissioner. There were two components to the claim for damages which were described by Mr Hillard as claims for ‘non-economic loss’ and for ‘economic loss’.

18 In his claim for ‘non-economic loss’ Mr Johnson sought an award of $15,000 as compensation for, firstly, the distress he experienced as a result of the Commissioner declining to offer him employment as a probationary constable after he had spent nearly a year in training and, secondly, because his “police service career has been delayed by at least 33 months”. This claim for ‘non-economic loss’ was pursued regardless of Mr Johnson’s success, or failure, in gaining employment with the Commissioner as a probationary constable.

19 The claim for ‘economic loss’ was contingent upon Mr Johnson failing to gain employment with the Commissioner as a probationary constable. In the event that Mr Johnson gains employment as a probationary constable he makes no claim for ‘economic loss’. In the event that he is not employed as a probationary constable Mr Johnson has sought to be compensated for the expenses he incurred as a result of attending the Police Academy for a year. The claimed expenses were: (1) $10,263.05, being loss of anticipated weekly earnings, less the Austudy payments he received as a student, (2) $3,939.20, being the HECS charge for the course at Charles Sturt University which had been paid to the Commonwealth Government, (3) $2,240, being board paid to the Commissioner during Mr Johnson’s time at the Police Academy in Goulburn, less the board which he would have paid to his parents had he continued to live with them during this period and (4) $278.50, being the cost of a textbook and reading material. The total sum claimed for economic loss was $16,720.75. In addition, Mr Johnson has sought interest on this sum from 14 August 2001 (the day upon which he was informed that he would not be graduating as a probationary constable), calculated in accordance with Schedule J of the Supreme Court Rules 1970.

20 Ms Brus opposed the claim for damages for non-economic loss, both generally and in terms of the amount claimed. Whilst Mr Brus did not generally oppose the applicant’s contingent claim for economic loss, she did challenge one of the calculations referred to in the previous paragraph.

21 The injunctive-style orders sought by Mr Johnson were designed to ensure, firstly, that his application to join the NSW Police Service was reconsidered without reference to the visual acuity standard which was relied upon by the Commissioner in August 2001 when he declined to offer Mr Johnson employment as a probationary constable and, secondly, that in the event that Mr Johnson’s application to join the NSW Police Service is successful, he is attested as a probationary constable at the earliest possible opportunity, subject to having completed all outstanding training requirements as determined by the Principal of the Police College. As Ms Brus did not oppose the making of these orders there is no need to consider them further other than to say that s 113(1)(b)(ii) and (iii) of the Act give the Tribunal the power to make orders of this nature, and that we consider the orders sought to be appropriate in the circumstances of this case.

Conclusions

22 Section 113(1)(b) of the Act states that the Tribunal “may…find the complaint substantiated” and make various orders for relief, including (in sub-paragraph (i)) an order that “the respondent…pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. The issues for consideration in this case are whether s 113(1)(b)(i) of the Act permits the Tribunal to make the orders for damages sought by Mr Johnson and, if so, whether the Tribunal should exercise its discretionary power to make those precise orders, or some other orders within their ambit. In order to determine these questions the Tribunal must decide whether the matters for which Mr Johnson seeks orders for damages constitute “loss or damage” within the meaning of s 113(1)(b)(i) of the Act and, if so, whether the actual sums of money sought by Mr Johnson have been proven and are appropriate.

23 In Commissioner of Police, NSW Police v Mooney(No 3) [2004] NSWADTAP 22 an Appeal Panel considered the meaning of the power in s 113(1)(b)(i) of the Act to make compensatory orders and stated:

[27] The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent’s conduct, but they are not controlling…

[44]… As Gleeson CJ observed in Henville v Walker (2001) 206 CLR 459 when discussing s 82 of the Trade Practices Act 1974 (Cth), and as we said at [27] when considering s 113(1)(b)(i) of the AD Act, common law principles may provide assistance when seeking to interpret the statutory power to make orders for compensation, but they are not controlling. Section 113(1)(b)(i) of the AD Act gives the Tribunal the power to order the respondent to compensate the complainant for any loss or damage suffered by reason of the respondent’s conduct…

24 These statements clearly indicate that whilst common law rules concerning damages may assist the Tribunal to give meaning to s 113(1)(b)(i) of the Act, and to apply that provision in particular cases, they are not controlling. No doubt the NSW Parliament was mindful of the common law concepts of ‘special’ and ‘general’ damages, and ‘economic’ (‘pecuniary’) and ‘non-economic’ loss (‘non-pecuniary’), when it included the words “loss or damage” in s 113(1)(b)(i) of the Act. Courts, legislatures and commentators have not always used these concepts consistently.

25 Whilst it is unnecessary to determine the precise meaning of the words “loss or damage” in s 113(1)(b)(i) of the Act in order to dispose of this case, it seems likely that what is meant by “loss” is similar to what Fullager J referred to as “special damages” in an action in tort in Paff v Speed (1961) 105 CLR 549 at 558-9, and that what is meant by “damage” is similar to what His Honour described as “general damages” in the same case.

26 Fullager J described “special damages” as “monetary loss actually suffered and expenditure actually incurred”. His Honour went on to say that the two characteristics of “special damages” are “(1) that they are assessed only up to the date of the verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with a close approximation to accuracy”. Fullager J included loss of income from wages, salary or professional fees within the concept of “special damages”. In NSW it was the traditional practice at common law not to include lost wages as part of “special damages” because of the view that the actual loss sustained by a person who was unable to work as a result of injury was ‘loss of earning capacity’, rather than ‘loss of earnings’ (see H Luntz, Assessment of Damages for Personal Injury and Death (4th ed) at pp 64-66).

27 Despite this NSW common law practice, it seems simpler and more logical to regard the word “loss” in s 113(1)(b)(i) of the Act as having a similar meaning to “special damages”, as that term was defined by Fullager J in Paff v Speed (1961) 105 CLR 549. Consequently, all monetary losses actually suffered, including loss of wages, and all expenses actually incurred by the applicant up to the date of the Tribunal hearing as a result of the respondent’s contravention of the Act, fall within the concept of “loss” in s 113(1)(b)(i) of the Act. Mr Johnson’s claim for the expenses he incurred as a result of attending the Police Academy for a year clearly constitute compensable “loss”. The issue for determination in this case is the appropriate calculation of that “loss”.

28 In Paff v Speed (1961) 105 CLR 549 at 558-9, Fullager J described “general damages” as being “of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much ‘at large’”. His Honour also stated that “general damages may be assessed not with reference to any limited period, but with reference to an indefinite future”. Fullager J stated that it was the usual practice to deal with “general damages” under three heads, “(1) ‘economic loss’, (2) loss of ‘amenities’ or ‘enjoyment of life’, (3) pain and suffering”. What his Honour clearly meant by “economic loss” in the context of “general damages” was future economic loss; that is expenditure and loss of income which is reasonably capable of some precise arithmetical calculation.

29 It seems appropriate to regard the word “damage” in s 113(1)(b)(i) of the Act as having a similar meaning to “general damages”, as that term was defined by Fullager J in Paff v Speed (1961) 105 CLR 54. Consequently, all damage actually suffered, and all damage which will continue to be suffered by the applicant as a result of the respondent’s contravention of the Act, which is not capable of reasonably precise mathematical calculation, and all reasonably foreseeable future expenses and projected loss of income resulting from that contravention fall within the concept of “damage” in s 113(1)(b)(i) of the Act.

30 It is unnecessary to conclusively determine the boundaries of what constitutes “all damage actually suffered, and all damage which will continue to suffered”, and what comprises “reasonably foreseeable future expenses and projected loss of income” in order to deal with the claims made by Mr Johnson in this case for “damage”. He has claimed compensation for the distress he experienced as a result of the Commissioner declining to offer him employment as a probationary constable after he had spent nearly a year in training, and for the fact that his “police service career has been delayed by at least 33 months”. We construed this latter claim as being one for the distress and disappointment caused by the delay in starting his police service career, rather than as a claim for projected loss of income because of the delay in commencing work on the salary of a probationary constable (and later as a constable). In our opinion whilst both are claimable as “damage”, there was no evidence of Mr Johnson’s projected loss of income caused by the delay in starting his police service career. In these circumstances it is not possible to make any sort of reasonable assessment of Mr Johnson’s projected loss of income.

31 Consequently, the claim for “damage” comprises a claim for compensation for the distress Mr Johnson experienced as a result of the Commissioner declining to offer him employment as a probationary constable after he had spent nearly a year in training, and a claim for the distress and disappointment occasioned by the delay in starting his police service career. These matters, which overlap, clearly constitute compensable “damage” within the meaning of s 113(1)(b)(i) of the Act. The issue for determination in this case is the calculation of an appropriate sum of money to compensate Mr Johnson for that “damage”.

32 The major challenge mounted by Ms Brus to the various components of Mr Johnson’s claim for the expenses he incurred as a result of attending the Police Academy for a year (his claim for “loss”) was in relation to the sum claimed for board paid to the Commissioner during his (Mr Johnson’s) time at the Police Academy in Goulburn, less the board which he would have paid to his parents had he continued to live with them during this period. The sum claimed was $2,240. Ms Brus did not dispute the fact that Mr Johnson paid board of $200 per fortnight whilst he was a student at the Police Academy, but she did take issue with the fact that he only reduced his total claim for board by $40 per fortnight, being the sum which he claimed he would have paid to his parents had he stayed at home with them. Whilst we accept Mr Johnson’s evidence that $40 per fortnight was the sum which he would have paid to his parents as board had he lived with them during the period he was away from home at the Police Academy, it is indisputable that board of $20 per week is a small contribution to the costs of a household.

33 In Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 an Appeal Panel explained the proper approach to the calculation of “loss” when the Tribunal is exercising its power in s 113(1)(b)(i) of the Act:

[48] When determining what may constitute the “loss” for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall (1990) 172 CLR 60 at 63:
The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed…
[49] Those justices also observed in the same case (at 63) that “a plaintiff cannot recover more than he or she has lost”…

34 As the objective of any award of damages to Mr Johnson to compensate him for “loss” is to place him in the position he would have been in had the Commissioner not committed the statutory wrong of discriminating against him on the ground of disability when declining his application for employment, the Commissioner must take his ‘victim’ as he finds him. Just as Mr Johnson is not entitled to recover more than he has lost, he is entitled to recover what he has lost even though, as a result of his parents’ generosity, that loss is greater than what may be ordinarily expected in the case of a person who was paying board at a rate closer to the actual cost of living. Mr Johnson is entitled to recover the sum of $2,240 to compensate him for difference the board he actually paid to the Commissioner during his time at the Police Academy in Goulburn, less the board which he would have paid to his parents had he continued to live with them during this period.

35 As Ms Brus did not challenge any of the other calculations made by Mr Johnson in relation to his claim for “loss”, and as the sums claimed seem reasonable and appropriate, he is entitled to damages of $16,720.75 in order to compensate him for his “loss”.

36 Mr Hillard sought an order that interest be added to any award of damages for “loss”. In Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 the Tribunal reviewed relevant authorities and concluded that interest on monies lost, or paid out, as a result of a contravention of the Anti-Discrimination Act is a compensable “loss” under s 113(1)(b)(i) of the Act. That finding was not disputed in this case. As Professor Luntz points out, when speaking of an award of interest in an action in tort:

The main purpose of awarding interest on damages in respect of the period prior to judgment is to compensate plaintiffs for loss or detriment in being kept out of money that was due to them during the relevant period. It is an integral element in the attainment of the object of damages generally, viz to compensate the plaintiff for the injury sustained. (H Luntz, Assessment of Damages for Personal Injury and Death (4th ed) at pp 599-600)

37 The date from which interest should run, and the rate at which interest should be paid, are both matters which are not free from debate. Mr Hillard claimed interest on Mr Johnson’s loss from 15 August 2001, which was the day after the Commissioner effectively informed him that his application to join the NSW Police Service was rejected. Interest was claimed at the rate set out in Schedule J to the Supreme Court Rules 1970. Ms Brus did not challenge the claim that interest accrued on Mr Johnson’s loss from the date upon which his cause of action arose, to use the language of the common law, and nor did she dispute the fact that Schedule J to the Supreme Court Rules 1970 contains appropriate rates for the calculation of interest.

38 The expenditures which Mr Johnson has claimed under the heading of “loss” were clearly incurred prior to 15 August 2001. As the objective of an award of interest is to compensate Mr Johnson for the loss of use of his money, it is appropriate in the circumstances of this case that interest should run from the date upon which the Act was contravened until the date upon which Mr Johnson is compensated for his loss. In the absence of another mechanism for calculating the interest payable upon Mr Johnson’s loss, it is reasonable to rely upon the interest rates set out in Schedule J to the Supreme Court Rules 1970.

39 Mr Hillard provided the Tribunal with calculations, that were not challenged, which indicate that the interest payable on $16,720.75 from 15 August 2001 to 4 May 2004 (the date of hearing), calculated in accordance with the rates set out in Schedule J to the Supreme Court Rules 1970, was $4195.30. Interest continues to accrue at the rate of $4.11 per day whilst the rate remains at 9%.

40 Mr Johnson is entitled to an award for interest of $4195.30, plus an additional amount for each day (at present $4.11) between 5 May 2004 and the date upon which payment is actually made. We propose to make an order which will give effect to these calculations.

41 The order for damages for “loss” will only come into effect if Mr Johnson is not offered employment by the Commissioner after his application is re-assessed without reference to the existing standard for visual acuity. The obvious reason for making the order subject to this contingency, which is how it was sought by Mr Hillard, is that Mr Johnson’s “loss” will evaporate if he is re-admitted to the NSW Police Service.

42 There seems little doubt that the Tribunal has the power, both expressly and impliedly, to direct that one of its orders will come into effect only upon the happening of some future event. Section 85 of the Administrative Decisions Tribunal Act 1997 states:

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such condition (including exemptions) as the Tribunal specifies when making the order or other decision.

43 In our opinion s 85 of the Administrative Decisions Tribunal Act 1997 is an express grant of power to the Tribunal to order that the order requiring the Commissioner to pay damages to Mr Johnson to compensate him for “loss” will only come into effect if the Commissioner declines to offer Mr Johnson employment after re-assessing his application. Consequently, it is unnecessary to consider the route by which it is possible to reach the conclusion that the Tribunal also has an implied power to make an order of this nature.

44 Mr Johnson’s claim for compensation for “damage” is not in any way contingent upon the re-assessment of his application to join the NSW Police Service. As we pointed out at [31], there are two overlapping components to this claim: a claim for compensation for the distress Mr Johnson experienced as a result of the Commissioner declining to offer him employment as a probationary constable after he had spent nearly a year in training, and a claim for the distress and disappointment occasioned by the delay in starting his police service career. Mr Hillard claimed the sum of $15,000 for this “damage”. Ms Brus submitted that this figure was too high and referred us to earlier cases in which smaller sums had been awarded for distress, insult and injury to feelings when, arguably, the distress experienced by the successful applicants in those cases was of greater magnitude than the distress experienced by Mr Johnson.

45 In some earlier discrimination cases (see e.g. Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17) considerable attention was paid to the difference at common law between exemplary and aggravated damages, and to the power to order damages of either nature following a finding of unlawful discrimination. Exemplary damages are designed to punish a defendant for his or her wrongdoing, whereas aggravated damages are designed to compensate a plaintiff for increased distress due to the manner in which a particular wrong was committed. The question of whether the Tribunal may make orders of this nature is resolved by considering the language used in our statutory grant of power to make an order for the payment of damages after finding a complaint of discrimination to be substantiated. Section 113(1)(b)(i) of the Anti-Discrimination Act makes it quite clear that damages must be compensatory; punitive damages cannot be awarded.

46 Whilst there seems to be little point in further complicating discrimination cases by actually taking the common law concept of aggravated damages into consideration when determining how to calculate a monetary figure to compensate a successful applicant for the distress that he or she has suffered as a result of the respondent’s unlawful discrimination, the rationale which underlies aggravated damages – increased distress as a result of the manner in which the wrong was committed – is clearly relevant when determining how to calculate that monetary figure.

47 In this case Mr Johnson spent nearly a year of his life at the Police Academy in Goulburn preparing to be a police officer. On 14 August 2001 he was advised with little ceremony and consideration for his feelings that his chosen career with the NSW Police Service was over. Despite various attempts, he was unable to persuade the Commissioner to reverse this decision and, finally, 15 months later, he lodged a complaint with the President of the Anti-Discrimination Board. The President accepted his complaint out of time and sought a response from the Commissioner. In that response the Commissioner claimed that his actions were lawful and declined to re-consider Mr Johnson’s application to become a police officer. The complaint was then referred to this Tribunal.

48 From 14 August 2001, the day that Mr Johnson was told over the telephone to hand in his uniform at the nearest police station, until 30 April 2004, which was four days before the Tribunal was scheduled to commence its inquiry into Mr Johnson’s complaint, the Commissioner maintained that he was lawfully entitled to act as he did. He has now admitted that his conduct was unlawful. In the circumstances Mr Johnson is quite entitled to be considerably distressed by the fact that was deprived of the opportunity to graduate with his colleagues from the Police Academy, that he was unable to pursue his chosen career for nearly three years, and that 32 months after he was told that his police career was over, even though he had successfully completed a year’s training, the Commissioner has admitted that he was not lawfully entitled to act as he did.

49 We accept Mr Johnson’s evidence that he was “completely devastated” and “shattered” by these events. Bearing in mind the awards made in other cases, we believe that $15,000 is a fair and reasonable figure to compensate Mr Johnson for his “damage”.

Decision and orders

50 The decision of the Tribunal is that the complaint is substantiated. The Tribunal makes the following orders:

1. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $15,000 by way of damages.

2. Within 42 days of the date of this order the respondent must take all necessary steps to determine the applicant’s application to join the NSW Police Service without reference to the existing standard for visual acuity.

3. If the applicant’s application to join the NSW Police Service is successful, the respondent must take all necessary steps to attest the applicant as a probationary constable at the next available attestation ceremony at the Police College, subject to the applicant having completed all outstanding training requirements as determined by the Principal of the Police College.

4. In the event that the applicant’s application to join the NSW Police Service is not successful, the respondent is to pay to the applicant, within 28 days of notifying him that his application was not successful, a further sum of $20,916.05, plus interest from 5 May 2004 calculated in accordance with paragraphs [39] and [40] of the Reasons for Decision, by way of damages for loss.

5. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.