Kovac v Australian Croatian Club Ltd (No 2)
[2016] ACAT 4
•25 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KOVAC v THE AUSTRALIAN CROATIAN CLUB LIMITED (No. 2) (Discrimination) [2016] ACAT 4
DT 12/10
Catchwords: DISCRIMINATION – political conviction – remedy – general damages – special damages – whether unlawful conduct materially contributed to loss and damage suffered by the applicant – whether an apology is appropriate in the circumstances – general damages to be assessed according to prevailing community standards – interest awarded on liquidated amounts
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 19, 24, 48
Anti-Discrimination Act 1991(Qld) s 209
Discrimination Act 1991 Part 3
Human Rights Commission Act 2005 s 53E
Subordinate
Legislation:ACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1) s 31.2
Court Procedures Rules 2006 s 1619
Cases cited:Alexander v Home Office [1988] 1 WLR 968
Bevilacqua v Telco Business Solutions (Watergardens) Pty Ltd (No.2) [2015] VCAT 693
Cross v Hughes (2006) 233 ALR 108
Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408
Dziurbas v Mondelez Australian Pty Ltd [2015] VCAT 1432
Elliott v Nanda (2001) 111 FCR 240
Hall v A & A SheibanPty Ltd (1989) 20 FCR 217
Henville v Walker (2001) 206 CLR 459
House & Anor v Queanbeyan Community Radio Station [2008] FMCA 897
Huntley v Corrective Services (NSW) [2015] FCCA 1827
March v Stramere (1991) 171 CLR 506
MBP (SA) Pty Ltd v. Gogic (1991) 171 CLR 657
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
O’Brien v Dunsdon (1965) 39 ALJR 78
Power v Bouvy and Bouvy v Power [2015] TASADT 2
Qantas Airways Ltd v Gama [2008] FCAFC 69
Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Spain v Union Steamship of New Zealand Ltd (1923) 32 CLR 138
Stephenson v Human Rights & Equal Opportunity Commission (1995) 61 FLR 134
Swan v Monash Law Book Co-Operative [2013] VSC 326
Tan v Xenos (No. 3) [2008] VCAT 584
Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61
Tribunal: President P Spender
Date of Orders: 25 January 2016
Date of Reasons for Decision: 25 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL DT 12/10
BETWEEN:
DANIJEL KOVAC
Applicant
AND:
THE AUSTRALIAN CROATIAN CLUB LIMITED
Respondent
TRIBUNAL: President P Spender
DATE:25 January 2016
ORDERS
The respondent is to give a written undertaking by 8 February 2016 that the respondent will not repeat or continue to treat the applicant unfavourably on the grounds of his political conviction or as a result of this complaint.
The respondent is required to accept the applicant’s application for full voting membership of The Australian Croatian Club Limited for the years 2011, 2012, 2013, 2014 and 2015.
The respondent is required to record in the minutes of the next meeting of its board of directors that the decision made on 12 December 2011 to reject the applicant’s membership application has been reversed and the applicant’s membership application has been accepted.
The respondent is to pay the applicant compensation in the sum of $30,468.70 for special damages plus interest in the sum of $2349.01.
The respondent is to pay the applicant compensation in the sum of $30,000 by way of general damages.
The respondent is to pay the total sum of $62, 817.71 pursuant to orders 4 and 5 above by 5.00 pm on 31 March 2016.
There is no order as to costs.
………………………………..
President P Spender
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above.
The Tribunal has found that the applicant is entitled to compensation pursuant to section 53E of the Human Rights Commission Act 2005 (HRC Act) in the sums stated in the orders above. The respondent has consented to the making of an order pursuant to section 53E(2)(a) of the HRC Act that it not repeat or continue to treat the applicant unfavourably. Further, the Tribunal has found that the respondent must reinstate the applicant’s membership of The Australian Croatian Club Limited from the date of the unlawful act in 2011 up until 2015 pursuant to section 53E(2)(b) of the HRC Act.
The Tribunal has rejected the applicant’s claim for an apology and for reinstatement of his access to the respondent social media sites. The Tribunal has also rejected the applicant’s claim for aggravated damages.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member. The decision previously handed down in these proceedings on 4 July 2014 – Kovac v Australian Croatian Club Limited[1] – is referred to as the ‘Liability Decision’. The respondent is referred to intermittently in the reasons below as ‘the Club’.
Background
[1] [2014] ACAT 41
On 1 July 2014 the Tribunal published its findings and reasons for decision in respect these proceedings (the Liability Decision). In the Liability Decision the Tribunal found that the respondent had discriminated against the applicant by treating the applicant unfavourably by depriving him of membership of the Club, failing to accept the applicant’s application for voting membership of the Club or by affording onerous terms and conditions upon the application for membership because of the applicant’s political conviction, in contravention of Part 3 of the Discrimination Act 1991 (the Discrimination Act).
The Tribunal further held that, as a consequence of the findings in the preceding paragraph, it was satisfied that the respondent had engaged in acts that were unlawful under the Discrimination Act.
Proceedings for an order under section 53E of the Human Rights Commission Act
As a consequence of the Tribunal’s findings, the matter was listed for further submissions and a hearing to decide the issue of what orders should be made under section 53E of the HRC Act. This provision states as follows:
53EKinds of orders—unlawful acts under the Discrimination Act
(1)This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2)The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
…
Orders sought by the applicant
The orders sought by the applicant are as follows:
(a)that the respondent not repeat or continue to treat the applicant unfavourably on the grounds of his political conviction or as a result of this complaint and the board of directors provide a written undertaking as to the same;
(b)that the respondent accept the membership renewal of the applicant dated 22 November 2011 for full voting membership for the years 2011 and 2012;
(c)in the alternative to (b), that the respondent accept the membership application of the applicant for the years 2011 and 2012; ·
(d)that the respondent accept the membership renewal of the applicant for full voting membership for the year 2013;
(e)in the alternative to (d), that the respondent accept the membership application of the applicant for the year 2013;
(f)that the respondent accept the membership renewal of the applicant for full voting membership for the year 2014;
(g)in the alternative to (d), that the respondent accept the membership application of the applicant for the year 2014;
(h)that the respondent record in the minutes of the next board of directors meeting that the board of directors’ decision of 12 December 2011 to reject the membership application of the applicant has been reversed and the applicant’s membership application has been accepted;
(i)that the respondent reinstate the applicant’s access to the respondent’s social media sites;
(j)that the respondent pay to the applicant an amount to be determined by the Tribunal by way of compensation for the loss and damage suffered by the applicant because of the unlawful act of the respondent; and
(k)that the respondent publish a written apology to the applicant on the respondent’s website and in The Croatian Herald.[2]
[2] Applicant’s submissions 17 September 2014 at [5]
The applicant’s claim for loss and damage stated in subparagraph (j) of the preceding paragraph was particularised in a statement of particulars filed on 4 March 2015. In that statement of particulars, the applicant claimed the sum of $29,898.66 for lost superannuation, sick leave for the period 3 November 2014 to 1 March 2015, past out-of-pocket expenses of $570.30 and future out-of-pocket expenses of $7500.
In the statement of particulars, the applicant also claimed interest pursuant to the Court Procedures Rules 2006 (the Court Procedures Rules).
Remedy – not repeating or continuing the unlawful act
In its submission filed on 31 October 2014, the respondent consented to the making of an order pursuant to section 53E(2)(a) of the HRC Act that the respondent not repeat or continue to treat the applicant unfavourably on the grounds of his political conviction or as a result of this complaint and the board of directors provide a written undertaking as to the same.[3]
Remedy – Membership Renewal
[3] Respondent’s submissions dated 31 October 2014 at [5]
In the Liability Decision[4] the Tribunal accepted the applicant’s submission that the respondent treated the applicant unfavourably by varying the terms of membership when the board of the respondent failed to accept his application and then prescribed in the rejection letter that the applicant would only be considered for a social membership and/or by imposing a term or condition in the rejection letter indicating that the board would only consider the applicant’s social membership if he could abide by ‘truly Croatian values’.
[4] [2014] ACAT 41 at [183]
Further, in the Liability Decision, the Tribunal did not accept the respondent’s argument that its reticence to propose and second the applicant’s application for membership was a passive exercise of power that was qualitatively different from ‘unfavourable treatment’. The Tribunal found that, contrary to the respondent’s statement in its rejection letter, the applicant’s membership did not automatically lapse after he had failed to renew his membership within an unspecified period determined by the discretion of the board. Therefore, the applicant was still a member of the respondent at the time he submitted his application on 22 November 2011 and also at the time his application was rejected by the board on 12 December 2011. As a continuing member, the applicant was entitled under clauses 14 and 15 of the articles of association of the Club to have his membership cancelled by a resolution by the board. There was no evidence that such a resolution was passed in relation to the applicant. The Tribunal found that considerable flexibility was given by the respondent in the renewal of memberships and that the applicant had been shown such flexibility in the past. There was no evidence that any other member of the Club had had their voting membership removed by a “final and not negotiable” decision of the board of directors of the Club.[5] The Tribunal further found that the term of the rejection letter that required the applicant to demonstrate ‘truly Croatian values’ stipulated a standard that the applicant was obliged to attain before being permitted to return to the Club even with a social membership. There was no evidence that any previous member had been subjected to this condition. The content of this obligation and how it was to be determined was unclear.[6]
[5] [2014] ACAT 41 at [156]
[6] [2014] ACAT 41 at [187]
The Tribunal therefore concluded that the respondent had treated the applicant unfavourably by cancelling his membership without complying with the articles of association, thereby depriving him of his membership, failing to accept his application for voting membership and offering an inferior form of membership, that is, a social membership, and attaching an onerous condition upon any future application that the applicant might make for the inferior form of membership.
In the present proceedings for a remedy pursuant to section 53E of the HRC Act, the respondent’s submissions regarding membership of the Club were that the applicant’s application for membership was incomplete in that it lacked a seconder.[7] The Tribunal does not consider that this submission is relevant to the present proceedings due to the findings in the Liability Decision about the flexibility shown by the Club regarding renewals.
[7] Respondent’s submissions dated 31 October 2014
The respondent also submitted that it is inappropriate for the Tribunal to order a private club to reinstate or grant voting or social membership to the applicant and submitted that a more appropriate order would be as follows:
(a)that the Club board (less Messrs Mrkonjic and Dzaja) re-determine the applicant’s unseconded application for voting membership, without regard to his ‘political conviction’ as found by the Tribunal;
(b)that the Club board (less Messrs Mrkonjic and Dzaja) consider any seconded application that the applicant may care to submit for voting membership, without regard to the applicant’s ‘political conviction’ as found by the Tribunal; and
(c)that the Club board (less Messrs Mrkonjic and Dzaja) consider any application that the applicant may care to submit for social membership without regard to the applicant’s ‘political conviction’, as found by the Tribunal.[8]
[8] Respondent’s submissions dated 31 October 2014 at [11]
The Tribunal notes the language of section 53E of the HRC Act (as set out above) and in particular emphasises that it may make “one or more” of the nominated orders. The remedies nominated by section 53E are not disjunctive and therefore the Tribunal may order all of the nominated remedies, should that be necessary. In this case the remedy sought would fall within section 53E(2)(b) that the person complained about performs a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act.
The Tribunal notes the language of the alternative proposals made by respondent and does not consider that the alternatives suggested by the respondent provide the requisite ‘redress’ for the humiliation suffered by the applicant. The Tribunal considers that the appropriate remedy pursuant to section 53E(2)(b) of the HRC Act is that the respondent accepts the applicant’s application for full voting membership for the years 2011, 2012, 2013, 2014 and further applies the remedy to the 2015 year. The Tribunal also orders that the respondent records in the minutes of the next board of directors meeting that the board of directors’ decision of 12 December 2011 to reject the applicant’s membership application has been reversed and the applicant’s membership application has been accepted.
Remedy – reinstatement of the applicant’s access to the respondent social media sites
The Tribunal does not consider that the reinstatement of the applicant’s access to the respondent social media site is necessary to redress any loss or damage suffered by him.
Remedy – Apology
The applicant also seeks that the respondent publishes a written apology to the applicant on the respondent’s web site and in the Croatian Herald. The Tribunal agrees with the respondent’s submissions that the precise content of the applicant’s political conviction is complex[9] which makes the wording of an apology unwieldy and further observes that the applicant had the benefit of a full page unbiased report in the Croatian Herald on 16 July 2014. [10] The Tribunal accepts the submissions of the respondent that it is difficult to understand how precisely an apology might be economically and justly worded so as to accurately reflect the respondent’s wrongdoing in a manner that might bring fair relief to the applicant.[11]
[9] Respondent’s submissions dated 31 October 2014 at [88]
[10] Witness statement of Danijel Kovac at [26]; witness statement of Zoran Sablijak , Attachment A
[11] Respondent’s submissions dated 31 October 2014 at [90]
The Tribunal does not consider that an apology is appropriate to redress any loss or damage suffered by the applicant in this case.
Remedy – Aggravated Damages
The applicant claimed that the respondent had exacerbated and aggravated the loss and damage suffered by the applicant by the following conduct:
(a)refusing to conciliate the matter when it was before the Human Rights Commission;
(b)refusing to mediate the matter when it came before the tribunal;
(c)bringing an unfounded application to have the complaint struck out as frivolous and vexatious;
(d)making unfounded threats against the applicant in regard to criminal charges;
(e)attempting to discredit the applicant and causing further damage to his reputation by bringing into evidence photographs depicting people known to the applicant holding a Nazi flag even though the applicant was not in the photograph, did not own the camera and had not been shown the photographs during his evidence;
(f)by requiring that its members not discuss the complaint with the applicant; and
(g)by continuing to wage a campaign against the applicant and his family which borders on bullying and harassment.[12]
[12] Applicant’s submissions dated 17 September 2014 at [60]
The respondent denied that there is any proper basis for the award of aggravated damages and contended that it had taken reasonable steps in the litigation to defend itself against claims that it considered to be unmeritorious.[13]
Consideration of the claim for aggravated damages
[13] Respondent’s submissions dated 26 March 2015 at [105] ff
In Hall v Sheiban[14] the Federal Court held that aggravated damages may be awarded in discrimination cases. In that case, Lockhart J cited with approval the statement of May LJ in Alexander v Home Office[15] that aggravated damages may be awarded where the defendant behaved ‘high handedly, maliciously, insultingly or oppressively in committing the act of discrimination’.[16] Aggravated damages may also be awarded when the respondent’s conduct (after the complaint was made and up to the time of hearing) added to the applicant’s distress and hurt.[17] The applicant relied upon the case of Elliott v Nanda where Moore J explored a range of authorities, including discrimination cases, and stated that it is:
...generally accepted that the manner in which a defendant conducts his or her case may exacerbate the hurt and injury suffered by the plaintiff so as to warrant the award of additional compensation in the form of aggravated damages.[18]
[14] (1989) 20 FCR 217
[15] [1988] 1 WLR 968
[16] (1989) 20 FCR 217, 239
[17] Cross v Hughes (2006) 233 ALR 108 at [30]
[18] (2001) 111 FCR 240 at 297 [180]
His Honour then stated that “a wide variety of matters may affect the decision to award aggravated damages in any particular case”[19] and noted that an award of aggravated damages may be given where the defendant conducts “his or her case in a manner which is unjustifiable, improper or lacking in bona fides.”[20]
[19] (2001) 111 FCR 240 at 297 [181]
[20] (2001) 111 FCR 240 at 297 [182]
The Tribunal does not consider that the conduct referred to by the applicant in subparagraphs (a) and (b) of the applicant’s claim for aggravated damages (as set out above) is sufficient to amount to conduct which has aggravated the applicant’s loss or damage. The Tribunal takes heed of the respondent’s submissions that the Club was not disinclined to mediate in the matter and has participated in mediation since the Liability Decision was handed down.[21] As regards the application to strike out the proceedings as frivolous and vexatious, the Tribunal does not consider that the respondent’s application to strike out the claim was “unjustifiable, improper or lacking in bona fides”.[22] Certainly the Tribunal that heard the strike out application was unwilling to make the orders requested by the respondent but, without more, it would not amount to the requisite aggravation.[23] In that respect, the Tribunal notes that no order was sought by the applicant for costs under section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) following dismissal of the respondent’s application, for example on the ground that the respondent caused obstruction by the application pursuant to section 48(2)(b) of the ACAT Act.
[21] Respondent’s submissions dated 26 March 2015 at [108]
[22] Elliott v Nanda (2001) 111 FCR 240, 297 at [182]
[23] Respondent’s submissions dated 26 March 2015 at [109]
The Tribunal furthers considers that the respondent’s conduct is not properly characterised by the applicant in subparagraphs (d), (f) and (g) above. The Tribunal does not consider that the alleged unfounded threats in relation to criminal charges in fact threatened the applicant and further considers that the conduct has been sufficiently explained in the respondent’s submissions.[24] The conduct referred to in subparagraph (f) is established on the facts but the Tribunal considers that it is not unreasonable of the Club to advise its members not to discuss the proceedings with the applicant.[25] The Tribunal is not persuaded that the evidence supports the allegations in paragraph (g) that the Club “waged a campaign” against the applicant.
[24] Respondent’s submissions dated 26 March 2015 at [110]
[25] Respondent’s submissions dated 31 October 2014 at [84]
As regards the Nazi flag photos, referred to in subparagraph (e) of the applicant’s claim for aggravated damages set out above, the Tribunal found in the Liability Decision that the photographs were raised by Mr Mrkonjic in an attempt to discredit the applicant.[26] Unfortunately, the evidence regarding the Nazi flag photos is incomplete and inconsistent and the Tribunal is concerned about the inflammatory role that they played in the proceedings. However, because of the inconsistencies and incompleteness of the evidence regarding this issue, the Tribunal is not satisfied that the material relied upon by the applicant is sufficient to establish that the manner in which the respondent conducted their case warrants the award of additional compensation in the form of aggravated damages.[27]
[26] [2014] ACAT 41 at [176]
[27] Elliott v Nanda (2001) 111 FCR 240, 297 at [180]
The Tribunal does not consider that aggravated damages should be awarded in this matter.
Remedy – Compensation
The applicant seeks an order for compensation under section 53E(2)(c) of the HRC Act.
The applicant submitted that the principles of the assessment of damages under the discrimination legislation are flexible although the principles applied when assessing damages in tort may serve as a guide at the assessment stage.[28] The applicant noted that in Qantas Airways Ltd v Gama[29] French and Jacobson JJ (with whom Branson J generally agreed) opined that in many cases “the appropriate measure [of damages] will be analogous to the tortious”.[30] In Hall v Sheiban[31] Lockhart J stated that, generally speaking, the correct approach to the assessment of damages under discrimination legislation is to compare the position that the complainant might have been in had the discriminatory conduct not taken place with the situation in which the complainant was placed by reason of the conduct of the respondent.[32]
[28] Relying on Hall v Sheiban (1989) 20 FCR 217; see applicant’s submissions dated 17 September 2014 at footnote 12
[29] [2008] FCAFC 69
[30] [2008] FCAFC 69 at [94]
[31] (1989) 20 FCR 217
[32] (1989) 20 FCR 217, 239
However, argued the applicant, it must be borne in mind that any damages to be awarded are statutorily based and it is the wording of the statute which is the principal basis for assessment of damages/compensation.[33]
[33] Stephenson v Human Rights & Equal Opportunity Commission (1995) 61 FLR 134 at [142]-[143]
In the current matter, the relevant words in section 53E(2)( c) of the HRC Act state as follows:
... that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
The applicant submitted that the Tribunal is empowered by section 53E(2)(c) of the HRC Act to award the applicant an amount of compensation for the loss or damage, including for hurt, humiliation and distress, that he has suffered due to the unlawful conduct of the respondent. The applicant further submitted that the underlying principle that should be applied when assessing the damages/compensation to be awarded is that damages are designed to place applicants in the position in which they would have been if there had not been an act of unlawful discrimination committed against them.[34]
[34] See generally applicant’s submissions dated 17 September 2014 at [14] to [21]
The applicant argued that the Tribunal should rely upon the case of Richardson v Oracle Corporation[35] (Richardson) where the Full Federal Court explored the principles in relation to the assessment of general damages in discrimination matters extensively in relation to a claim brought under the Sex Discrimination Act 1984 (Cth). Relying upon Richardson, which was a sexual harassment case, the applicant contended that the range of compensation that might be awarded in this case was around $80,000 to $300,000.[36] The arguments about the quantum of compensation will be dealt with in more detail below.
[35] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
[36] Applicant’s submissions dated 17 September 2014 at [39]
The respondent argued that there was no requirement that the Tribunal make an order for compensation. In particular, at the threshold the respondent argued that Richardson is highly distinguishable from the current case because in Richardson the court at first instance found that the respondent had engaged in a “systematic form of humiliation and sexually charged aggression”.[37] Further, argued the present respondent, Richardson is also distinguishable because discrimination based on political belief is not universally prohibited or necessarily inappropriate in all cases. By contrast, sexual discrimination and harassment has a close affinity with criminal conduct, and may even amount to criminal conduct.[38]
Consideration of the approach to the assessment of damages
[37] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [75]
[38] Respondent’s submissions dated 31 October 2014 at [21]-[22]
The Tribunal adopts the applicant’s submission that compensation is designed to place the applicant in the position he would have been in had there not been an act of unlawful discrimination committed against him. The Tribunal notes the authorities relied upon by the applicant in particular Hall v Sheiban[39] and Qantas v Gama[40] and observes that the Full Federal Court in Richardson made similar comments about the analogy with tortious principles,[41] whilst recognising that the measure of damages was not to be found in the law of tort but rather in the words of the statute.[42]
[39] (1989) 20 FCR 217
[40] [2008] FCAFC 69
[41] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [27] – [28], [126]
[42] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [126]
The respondent submitted that Richardson may be distinguished on its facts. In Richardson, as quoted by the respondent, the trial judge said that the conduct of the perpetrator was "cruel and calculated" and deserved censure in a "way which makes clear that it was unacceptable and unlawful".[43] Certainly the present case does not involve sexual harassment but the Tribunal rejects the respondent’s submission that Richardson may be distinguished on its facts.
[43] Richardsonv Oracle Corporation Australia Pty Ltd (2013) 232 IR 31 at [211]
The applicant submitted that the conduct of the present respondent in its unlawful discrimination against the applicant was also cruel and calculated and deserves censure in a way which makes it clear that it was unacceptable and unlawful. The rejection letter sent to the applicant went well beyond a mere rejection of his application for membership, but also attacked his character and values.[44] Moreover, the applicant submitted, in Richardson the conduct complained of was carried out by one individual whereas in the present case it involved at least two members of the board of directors and possibly other people in the upper hierarchy of the Club. In particular, the applicant contended that the fact that the respondent chose to wait until after the Christmas period to send the rejection letter to the applicant shows an expectation on behalf of the respondent that the applicant would react negatively to the letter. The applicant submitted that the letter itself was designed to have a negative impact on the applicant. [45]
[44] [2014] ACAT 41 at [127]
[45] [2014] ACAT 41 at [128]
The Tribunal adopts the applicant’s submissions and considers that the evidence establishes that the respondent did engage in conduct that was calculated and cruel. This is demonstrated by several examples in the Liability Decision, including the rejection letter, which demonstrated cruel and calculated conduct (particularly in the bold passages quoted in paragraph 127 of the Liability Decision) and the evidence referred to in paragraph 128 about the timing of the rejection letter following the meeting on 12 December 2011.
The rejection letter was sent in late December 2011/ early January 2012. Mr Dzaja gave evidence that:
… December is a very busy time for Club functions. If Danijel wanted to cause any trouble about the non-approval of his application, I thought I would only have time to address it in January rather than December.[46]
[46] Witness statement of Tomislav Dzaja dated 14 May 2013; respondent’s tender bundle at page 133
In the Tribunal’s view, this latter passage as well as the other examples referred to in the Liability Decision demonstrate the calculated nature of the conduct. The Tribunal agrees with the applicant that this case does involve an element of cruelty and humiliation which means that Richardson is directly applicable. Therefore, the Tribunal considers that the facts of Richardson are not distinguishable on the basis of the respondent’s conduct. Rather, the Tribunal agrees with the applicant’s submission that Richardson is “right on point.” [47]
[47] Applicant’s submissions dated 12 November 2014 at [15]
Secondly, although Richardson discusses the need for compensation orders in sexual harassment cases to reflect prevailing community standards,[48] the Tribunal does not consider that the force of the Full Federal Court’s comments about the need to match awards of compensation to prevailing community standards is confined to sexual harassment. In the Tribunal’s view, the language of the Full Federal Court belies the respondent’s arguments.[49] Thirdly, the Tribunal rejects the respondent’s submission that unlawful conduct which is in the nature of discrimination on the grounds of political conviction is distinguishable from sexual harassment. The critical element is the finding of unlawful conduct. Each type of unlawful conduct that is prohibited under discrimination legislation may be underpinned by slightly different policy considerations but it is the finding of unlawful conduct that triggers the obligation of the Tribunal to consider the appropriate remedy. In this respect the Tribunal notes the wording of section 53E, in particular the statement in section 53E(2) that “ACAT must make one or more of the following orders” (emphasis added).
[48] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [78]
[49] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [95] – [96]
The Tribunal concludes that the approach to the award of compensation in discrimination matters which was adopted by the Full Federal Court in Richardson should apply to the present case.
Claims for loss or damage
The applicant alleged that he has suffered loss and damage. He alleged he has suffered both physical and psychological damage and he relies on the following as proof of the loss and damage that he has suffered:
(a)he has been depressed and anxious;
(b)he has suffered an inability to experience pleasure from activities usually found enjoyable (anhedonia);
(c)he has become withdrawn from his family and friends;
(d)he finds it difficult to concentrate and is fixated on the treatment he has received by the Club;
(e)he has had fleeting suicidal thoughts;
(f)he is forgetful and finds it difficult to remember simple tasks;
(g)he is moody and irritable;
(h)he reacts quickly to small stressors;
(i)he has difficulty sleeping;
(j)when he sleeps he does not have a restful night’s sleep and wakes up feeling tired;
(k)he has gained weight;
(l)he is suffering from chronic adjustment disorder with anxiety and depressed mood ‘(‘his medical condition’);
(m)he is required to take anti-depressant medication to treat this medical condition;
(n)he is required to attend upon a psychologist for treatment of his medical condition;
(o)his pre-existing back injury has been aggravated; and
(p)he has been required to take time off from work on sick leave on the recommendation of his general practitioner due to his medical condition.[50]
[50] Applicant’s submissions dated 4 March 2015 at [8]
The applicant claimed damages under several grounds for injury, hurt, humiliation and the distress. The particular submissions that were made were as follows:
(a)that he felt isolated and ostracised;
(b)that his personal relationships were detrimentally impacted;
(c)that he had been the subject of criticism and derogatory comments by Club members, its directors and members of the Croatian community;
(d)that he had suffered reputational damage and that his standing in the community had suffered;
(e)that his ability to socialise with other members of the Croatian community including friends and family had been restricted;
(f)that he had witnessed the impact of the respondent’s unlawful conduct on his family and he feels responsible for it;
(g)that he is now under financial pressure; and
(h)that he has suffered physical and psychological injury.[51]
Evidence of loss or damage
[51] As summarised in the respondent’s submissions dated 26 March 2015
The applicant relied upon the following evidence tendered to the Tribunal regarding the loss and damage he has suffered:
(a)Witness statement of Zoran George Sabljak dated 1 September 2014;
(b)Witness statement of Robert Skrnjug dated 17 September 2014;
(c)Report of Dr Watson, General Practitioner, dated 16 September 2014;
(d)Report of Dr Watson, General Practitioner, dated 15 December 2014;
(e)Witness statement of Jerko Kovac dated 28 August 2014;
(f)Witness statement of Mladen Leko dated 1 September 2014;
(g)Witness statement of Kathy Kovac dated 2 September 2014;
(h)Report of Dr Nicholas Jetnikoff, Consultant Psychiatrist, dated 15 September 2014;
(i)Witness statement of Danijel Kovac dated 17 September 2014;
(j)Certified translation from Croatian Language dated 1 September 2014 (‘the Facebook Translation’);
(k)Screenshots of The Australian Croatian Club Limited Facebook page taken 15 March 2014 (‘the Club’s Facebook Posts’); and
(l)Constitution of The Australian Croatian Club Limited.[52]
[52] Applicant’s submissions dated 4 March 2015 at [1]
The respondent tendered the following evidence:
(a)Trip Advisor posts pages 1 to 4 (‘the Trip Advisor posts’);
(b)Witness Statement of Ante Mrkonjic dated 30 October 2014;
(c)Witness Statement of Tomislav Dzaja dated 30 October 2014;
(d)Documents returned on subpoena from Gungahlin General Practice; and
(e)Screenshots of Danijel Kovac’s Facebook page dated 8 June 2013.[53]
Did the respondent’s unlawful conduct cause the applicant’s loss?
[53] Applicant’s submissions dated 4 March 2015 at [3]
A primary submission made by the respondent is that the unlawful conduct did not cause much of the loss that is claimed by the applicant. In particular, the respondent argued that the Tribunal cannot take into account loss caused by events prior to 12 December 2011 or loss suffered as a consequence of the decision to litigate or loss associated with the applicant’s daughter’s attendance at the ethnic language school or loss associated with the alleged inability of the applicant’s daughters to attend various cultural dance functions that were held at the Club.
The respondent argued that the applicant should have mitigated his loss in various ways, for example by applying for social membership, attending the Club as a guest, asking his wife to obtain Club membership or socialising in other places in Canberra where the Croatian community socialises.[54] The respondent also argued that the applicant had contributed to the situation by his behaviour and that some apportionment of the loss suffered by him as a consequence of unlawful conduct on the basis of political conviction regarding the portraits was possible.[55]
[54] Respondent’s submissions dated 31 October 2014 at pages 5 to 6
[55] Respondent’s submissions dated 31 October 2014 at [31]
The applicant submitted that the approach that should be taken by the Tribunal when deciding whether the alleged loss was caused by the respondent’s unlawful conduct is to rely upon the approach taken by courts when dealing with the commission of other statutory wrongs. The applicant relied upon Henville v Walker[56] (Henville) where the High Court determined the measure of damages to be awarded in proceedings brought under the Trade Practices Act 1974 (Cth). In that case, McHugh J said:
If the defendant’s breach has ‘materially contributed’ to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of the damage. But such cases are exceptional.[57]
[56] (2001) 206 CLR 459
[57] (2001) 206 CLR 459, 493
Relying on the statement made by the High Court in the preceding paragraph, the applicant submitted that the appropriate test is whether the respondent’s unlawful conduct has materially contributed to the loss and damage suffered by the applicant.[58]
[58] Applicant’s submissions dated 12 November 2014 at [14]
The respondent argued that the words ‘because of’ in section 53E plainly invoke the concept of causation. At common law, argued the respondent, the starting point must be the approach of the Australian courts since March v Stramere[59] that causation is a question of fact determined by the application of common sense and judgement to the evidence. Not everything that follows on from the unlawful conduct can be said to have been caused by the unlawful conduct. It is for the applicant to prove the loss claimed was caused by the unlawful act.
Consideration of Causation
[59] (1991) 171 CLR 506, 509
The Tribunal considers that the test of causation adopted by the High Court in Henville in relation to statutory wrongs is helpful to guide the factual enquiry that was urged upon the Tribunal by the respondent. The Tribunal notes that Dixon J in Swan v Monash Law Book Co-Operative[60] adopted the ‘materially contributed’ test in a context where an employee suffered a workplace-induced injury due to bullying by a co-worker. His Honour stated that the:
... plaintiff always bears the legal onus of establishing on the balance of probabilities that the defendant’s negligence materially contributed to her illness.[61]
[60] (2013) 235 IR 63; [2013] VSC 326
[61] (2013) 235 IR 63; [2013] VSC 326 at [249]
This case has been cited in subsequent decisions, including Richardson.[62] The Tribunal does not consider that the respondent made any serious challenge to the applicant’s proposition that the Henville test of causation is appropriate in the present case.
[62] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [101]
Therefore, the Tribunal must consider whether particular losses that are claimed materially contributed to the loss or damage suffered. The Tribunal concludes that any loss which is purely attributable to an event which is earlier in time than 12 December 2011 is not compensable. Similarly, the loss claimed in relation to events regarding the applicant’s brother Mr Stan Kovac and his father Mr Jerko Kovac are not compensable. Further, the Tribunal does not consider that the financial pressure suffered by the applicant was caused by the respondent’s unlawful conduct.
However, the Tribunal considers that the applicant’s physical and psychological injury and his humiliation and distress were caused by the respondent’s illegal conduct because the respondent’s illegal conduct materially contributed to these heads of loss or damage. These claims are elaborated below.
The Tribunal considers that the evidence establishes all of the alleged particulars of damage other than subparagraphs (m), (n) and (o) of the applicant’s claims for loss or damage set out above. As regards these particular claims, the applicant gave evidence that he did not intend to take antidepressant medication or to attend a psychologist for treatment. The Tribunal is not satisfied that the respondent’s conduct caused any aggravation of the applicant’s pre-existing back injury. Therefore, these claims for loss or damage are not attributable to the respondent’s unlawful conduct.
Claim for loss or damage due to physical and psychological injury – the applicant’s medical condition
As regards the applicant’s medical condition, the applicant relied upon evidence provided by his general practitioner, Dr Tim Watson and a report by Dr Nicholas Jetnikoff, a consultant psychiatrist. Dr Jetnikoff provided a report dated 15 September 2014 and Dr Watson provided two reports dated 16 September 2014 and 15 December 2014. In the second report by Dr Watson, he made the following comment:
Mr Kovac has been advised by me to take extended time off from his job at the ANU. He has been given a medical certificate indicating no work from 3 November 2014 to 11 January 2015. ... This recommendation has taken place as a consequence of multifactorial psychological insult. Primarily, Mr Kovac’s psychological dysfunction results from the pending court case, the sudden death of his brother and lack of managerial support within his area at the ANU. There are no guarantees that he will return to work on 11 January 2015. At his next consultation I will be thoroughly assessing his ability to return to work.[63]
[63] Report of Dr Watson dated 15 December 2014 page 2
The Tribunal notes the argument made by respondent that the causal factors referred to by Dr Watson were “plainly wholly unrelated to the unlawful act or these proceedings. The third factor is these proceedings. The respondent is not at all responsible for the illness or injury which caused the applicant’s need to take time off work.”[64]
[64] Respondent’s submissions dated 26 March 2015 at [27]
Taking into account the entirety of Dr Watson’s evidence it is clear that the applicant has been regular patient of Dr Watson since 28 August 2000. Dr Watson reviewed the applicant on 5 November 2014. The doctor made the following comments about this:
The principal factors affecting his mental well-being was [sic] the pending court case against the Australian Croatian Club Limited, the sudden unexpected death of his beloved brothers and issues at work.[65]
[65] Report of Dr Watson dated 15 December 2014 at page 1
The Tribunal considers that the unlawful act materially contributed to the applicant’s poor state of mental well-being when he was examined by Dr Watson on 5 November 2014. The Tribunal rejects the respondent’s submission that the factors referred to by Dr Watson were unrelated to the unlawful act.
The applicant also relied on the report and oral evidence of Dr Jetnikoff. Dr Jetnikoff diagnosed the applicant as suffering from chronic adjustment disorder with anxiety and depressed mood.[66] The respondent made several attempts to undermine this diagnosis. For example, it argued that Dr Jetnikoff did not examine the applicant until some three years after the unlawful act and that his report recites the applicant’s own report. Dr Jetnikoff also said in testimony that he would expect the symptoms of adjustment disorder to emerge within six months of the event in question.[67] Nevertheless, Dr Jetnikoff did not retreat from his diagnosis and when questioned by the Tribunal stated that it is not uncommon for people like the applicant to not seek treatment for some time[68] and it was not uncommon “for people to deny they have a psychiatric illness when you first encounter them.” [69]
[66] Report of Dr Jetnikoff dated 17 September 2014 at page 9
[67] Transcript of Proceedings 29 January 2015 page 74, lines 30 to 41
[68] Transcript of Proceedings 29 January 2015 page 80; Transcript of Proceedings 9 April 2015 page 12
[69] Transcript of Proceedings 29 January 2015 page 80, line 10
The Tribunal recognises that the opinions of Doctors Jetnikoff and Watson must be scrutinised carefully because they are to some extent based on the applicant’s self-reporting during consultations that occurred almost three years after the unlawful act. However, the Tribunal notes that a similar situation arose in Richardson and there was no adverse comment made by the court at first instance or on appeal about the self-reporting or the time lag between the unlawful conduct and the consultation by the applicant with a doctor.
As stated above, the doctors did not retreat from their diagnoses. Ultimately it is a question for the Tribunal whether the applicant’s medical condition was caused by the unlawful conduct and the Tribunal finds that the applicant has proved that he has suffered from a medical condition and the unlawful conduct materially contributed to the medical condition.
Special Damages
The Tribunal has ordered the respondent to pay the sum of $30, 468 which is constituted by the gross amount of his sick leave and lost superannuation when the applicant was off work from 3 November 2014 to 1 March 2015 ($29, 898.66) plus his past out of pocket treatment expenses of $570.30.[70] As stated above, no future out-of-pocket expenses have been awarded because it is not clear that the applicant will be undertaking further treatment.
General Damages
[70] As particularised in applicant’s statement of particulars dated 4 March 2015
The applicant submitted that he suffered the following hurt, humiliation and distress:
(a)he has been isolated and ostracised from the Croatian community;
(b)his personal relationships with his family and friends have been detrimentally impacted;
(c)he has been subjected to criticism and derogatory comments by members of the respondent, its directors and members of the Croatian community;
(d)his reputation and standing in the community has been damaged;
(e)his ability to socialise with other members of the Croatian community, his friends and his family has been restricted.[71]
[71] Applicant’s submissions dated 4 March 2015 at [10]
The applicant gave evidence about feeling lost after having been “once very much involved” in and committed to the Croatian community.[72] He stated that he was disappointed and upset to see how many people in the Croatian community have distanced themselves from him due to the stance taken by the Club.[73] He further stated that it was difficult to have conversations with members of the community who are also members of the Club and that several negative comments had been made about him on the Club’s Facebook page.[74]
[72] Witness statement of Danijel Kovac dated 17 September 2014 at [34]
[73] Witness statement of Danijel Kovac dated 17 September 2014 at [18]
[74] Witness statement of Danijel Kovac dated 17 September 2014 at [18] – [22]
The applicant’s evidence was supported by witness statements and oral evidence given by Mr Leko, Ms Kovac and Mr Skrnjug.
The Tribunal considers that the evidence establishes that the applicant suffered humiliation and distress and this loss was caused by the respondent’s unlawful conduct. The Tribunal was not persuaded by the evidence put in rebuttal of this evidence by the respondent. For example, the respondent relied upon Mr Mrkonjic’s recollection about the number of times that the applicant had attended the Club before and after the unlawful conduct.[75] This evidence appears to have been based upon a vague recollection of the number of times that the applicant attended the Club during the three-year period leading up to the unlawful act. It is difficult to place much weight on the assertions of Mr Mrkonjic that he was able to recall the attendance of members of the Club with such detailed particularity over a 3 ½ year period.[76]
[75] Witness statement of Ante Mrkonjic dated 30 October 2014 [2] – [10]
[76] Applicant’s submissions dated 4 March 2015 at [41]
The Tribunal was also not persuaded by the evidence tendered by the respondent regarding some Trip Advisor posts that were made by the applicant and some upbeat Facebook posts that were made by the applicant on occasions such as his daughter’s 18th birthday[77] during the relevant period. The respondent argued that this material established that the applicant’s ability to socialise was not restricted and rebuts his assertion he had lost his enjoyment of life and was socially withdrawn. The Tribunal is not persuaded that the posting of information on Trip Advisor means that a person was actively wining and dining. Further, the capacity of the applicant to either put on a brave face or genuinely enjoy special occasions does not undermine the evidence given by Mr Leko and Ms Kovac about the applicant’s feelings of being isolated and ostracised.
[77] Respondent’s submissions dated 26 March 2015 at [56] to [69]
The respondent argued that it is not responsible for the responses of individual club members to the applicant[78] nor is it responsible for criticism or derogatory comments made by club members[79] because there is no evidence of incitement by the respondent. Further, the respondent argued that the relevant offensive Facebook posts were removed within three weeks of being posted which the respondent submitted was a reasonable timeframe in the context of a secondary volunteer-run social media site.[80]
[78] Respondent’s submissions dated 23 March 2015 at [68]
[79] Respondent’s submissions dated 26 March 2015 at [70]
[80] Respondent’s submissions dated 26 March 2015 at [72]
The Tribunal finds that the applicant did suffer feelings of ostracism caused by the respondent’s unlawful act. The Tribunal considers that the evidence presented by the applicant supports his claims for hurt, humiliation and distress which were caused by the respondent’s unlawful act. The Tribunal notes that a respondent club may be liable for injury to an applicant’s feelings when members of the club have ostracised him or her.[81] The New South Wales Court of Appeal made the following comments in Umina Beach Bowling Club Ltd v Ryan[82] regarding this loss:
... [a] ... matter apparently taken into account by the tribunal ... was that it was clear on the evidence that Mrs Ryan had also suffered ostracism from members of ... the club. ... [T]he objection is that the actions of individuals being distinct from the club as a corporate body, should not be taken into account in determining the damages to be paid by the club. It does not seem to me that it can be said that it was an error of law on the tribunal’s part to take the ostracism aspect into account. What the tribunal had to consider was the damage suffered by reason of the club’s wrongful refusal to admit Mrs Ryan to membership. It seems to me that it was open to the tribunal to regard the behaviour of members of the club to Mrs Ryan, as a matter of fact, as being part of the consequences of the club’s conduct towards her.[83]
[81] Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61; (1984) EOC 92-110
[82] [1984] 2 NSWLR 61; (1984) EOC 92-110
[83] Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61 at 75-76
Similarly in the present case, the Tribunal finds, as a matter of fact, that the behaviour of the members of the Club to the applicant were part of the consequences of the respondent’s unlawful conduct.
The Tribunal rejects the submission by the respondent that it is possible to apportion the loss on the basis of the number of portraits that form part of the tribunal’s decision on liability. Further, the Tribunal does not consider that the applicant was under any responsibility to mitigate his loss by applying for social membership. In this regard, the Tribunal again relies on the reasoning of the New South Wales Court of Appeal in Umina Beach Bowling Club Ltd v Ryan[84] that the damage suffered is the loss of enjoyment of the rights of full membership including the right to participate in a range of activities offered by the Club. There is no doubt in the present case that a social membership would not confer the same rights as a full membership and the Tribunal notes the applicant’s evidence that he was aware of his right to apply for social membership but did not do so because it was a lower class of membership.[85] Similarly, the Tribunal does not consider that there was a failure of the applicant to mitigate his loss by taking the steps that the respondent suggested such as attending as a guest, asking his wife to join up or socialising in other places where the Croatian community gathers.
The quantum of general damages
[84] [1984] 2 NSWLR 61; (1984) EOC 92-110
[85] Transcript of Proceedings page 50, lines 1-12; respondent’s submissions dated 31 October 2014 footnote 35
In assessing the damages that should be awarded to the applicant, the Tribunal acknowledges the respondent’s submission that there is no fixed amount or range of damages that might be awarded. Each case must be considered in the light of its own facts and assessment made of the amount which can be fairly regarded as reasonable compensation for the injuries and disabilities which particular applicant has sustained from the unlawful act having regards as far as possible to the general standards prevailing in the community.[86] As commented by the respondent, calculating general damages in discrimination type claims is a difficult exercise and reliance is placed on the ‘good sense’ of the tribunal.[87] As stated by the Anti-Discrimination Tribunal of Tasmania in Power v Bouy:[88]
Ultimately, each matter must be decided on its own facts, but the award must conform to a general pattern established by precedent and can neither be manifestly excessive nor manifestly inadequate. It must fall within a range defined by those two parameters, and provide proper compensation for what has been suffered.[89]
[86] Respondent’s submissions dated 26 March 2015 at [100] citing Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [90] affirming O’Brien v Dunsdon (1965) 39 ALJR 78
[87] Alexander v Home Office [1988] 1 WLR 968
[88] [2015] TASADT 2
[89] [2015] TASADT 2 at [132]
Therefore, it is clear that some comparison with decided cases is appropriate. In this respect, the applicant provided a table of comparable verdicts which formed an annexure to its submissions.[90] Conversely, the respondent argued that the Tribunal should follow House & Anor v Queanbeyan Community Radio Station (House)[91] where the successful applicants were subjected to racial discrimination in the assessment of their membership for a volunteer position in a community radio station. In House Neville FM considered that an appropriate award of damages of $6000 should be given to each of the applicants, together with an award of costs in their favour.[92]
[90] Applicant’s submissions dated 4 March 2015 Annexure A
[91] [2008] FMCA 897
[92] [2008] FMCA 897 at [127]
As discussed above, the respondent argued that the Richardson should not apply to the present case of political conviction discrimination, however the Tribunal has concluded above that the reasoning of Richardson applies to discrimination matters generally and not just to matters involving sexual harassment. Therefore, Richardson is relevant to the quantum of damages that should be awarded when a finding of discrimination has been made. In Richardson the Full Court considered that the sum of $18,000 that was awarded by the trial judge, whilst not out of step with past awards, was manifestly inadequate and out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage of the kind that the applicant in that case had sustained.[93] The Full Court substituted the sum of $100,000 for general damages.
[93] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [118]
Recent awards of general damages in comparable cases after Richardson include Power v Bouy[94] where $25,000 was awarded. In that case, the sexual harassment was very serious but there was no psychiatric, psychological or medical evidence led about any psychiatric consequences suffered by the complainant even though the tribunal found that there was “ongoing fear worry and anxiety”.[95] In Bevilacqua v Telco Business Solutions[96] Senior Member Proctor awarded $10,000 compensation for hurt and humiliation which he found did not trigger a decline in the applicant’s mental state. In Dziurbas v Mondelez[97] Member Dea of the Victorian Civil and Administrative Tribunal (VCAT) found discrimination on the ground of disability which resulted in the applicant losing his job and when he had planned to work for another two years. There was no evidence of psychological injury. The member awarded the sum of $20,000 for “injury to feelings”.[98] In Huntley v State of NSW[99] the Federal Circuit Court awarded $75,000 where the respondent’s conduct impacted significantly upon the applicant’s pre-existing depressive disorder. Medical evidence was led by the applicant of significant psychological trauma caused by the respondent’s acts of discrimination on the ground of disability.
[94] [2015] TASADT 2
[95] [2015] TASADT 2 at [159]
[96] [2015] VCAT 693
[97] [2015] VCAT 1432
[98] [2015] VCAT 1432 at [247]
[99] [2015] FCCA 1827
In Tan v Xenos,[100] a VCAT case decided before Richardson, Harbison J commented that the question of general damages should not be regarded as minor or inconsequential and there should not be a perception that awards of damages in VCAT should be set at some lower rate than awards for comparable cases in the courts.[101] In that case Harbison J considered that the award of damages “must be substantial”[102] and awarded $100,000 general damages without medical evidence as to how the incident had affected the applicant.[103]
[100] [2008] VCAT 584
[101] [2008] VCAT 584 at [556]
[102] [2008] VCAT 584 at [560]
[103] [2008] VCAT 584 at [558]
Therefore although the Tribunal acknowledges the present respondent’s submission that House is relevant to the present case, some adjustment should be made to the quantum of general damages awarded in House because no medical evidence was led in that case to support the claim for general damages. As stated by Neville FM:
While I accept that the failure to provide medical evidence is not fatal to any claim for general damages, and that I have remarked that something more than general claims of shame, hurt and anxiety felt by the applicants would have been helpful, it does, in my view, militate against there being a large award of damages.[104]
[104] [2008] FMCA 897
The Tribunal concludes that the present applicant has suffered as a result of the respondent’s conduct and a significant body of credible evidence was led by the applicant and other witnesses which establishes that he suffered from a medical condition – chronic adjustment disorder – as well as feelings of hurt, humiliation and distress which were caused by the unlawful conduct of the respondent. This evidence was not rebutted by the respondent.
The Tribunal concludes that the amount of $30,000 accords with prevailing community standards and awards this sum to the applicant by way of general damages.
Interest
The applicant made a claim for interest under the Court Procedures Rules. No submission was made by the respondent regarding this claim.
The Court Procedures Rules do not bind the tribunal although section 24 of the ACAT Act requires the tribunal, when making rules in relation to the practice and procedure of the tribunal, to consider rules dealing with similar matters under the Court Procedures Rules.[105] The Tribunal is not aware of a precedent in the ACT where interest has been claimed in a discrimination matter. However interest has been awarded in some Federal Court discrimination matters.[106] Interest has also been awarded in the Queensland Civil and Administrative Tribunal (QCAT) although there is an express provision in the Queensland Anti-Discrimination Act 1991[107] empowering QCAT to award interest on an amount of compensation. In McCauley v Club Resort Holdings Pty Ltd (No 2)[108] Member Gordon differentiated between an award of interest for non-financial loss (which he considered was not available because it would ‘over compensate” the applicant)[109] and an award of interest for financial loss where interest is available. Member Gordon relied upon the reasoning of the High Court in MBP (SA) Pty Ltd v. Gogic[110] that the reason for an award of interest is to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period.[111]
[105] Section 24(2)(c) ACT Civil and Administrative Tribunal Act 2008
[106] Qantas Airways Ltd v Gama [2008] FCAFC 69; Director of Public Prosecutions v Poniatowska (2011) 244 CLR 408
[107] Section 209(1)(g) Anti-Discrimination Act 1991(Qld)
[108] [2013] QCAT 643
[109] [2013] QCAT 643 at [256] ff
[110] [1991] HCA 3; (1991) 171 CLR 657 at [7]
[111] [2013] QCAT 643 at [259]
There is no express power given to ACAT to award interest under the Discrimination Act or the HRC Act, but the tribunal does have power to determine its own procedure under section 23 of the ACAT Act if there is no procedure prescribed under the Act or an authorising law. Section 19 of the ACAT Act recognises that a claim for interest may be made in a civil dispute application. Under the tribunal’s procedural directions there is a power to award interest where the sum claimed is liquidated amount.[112] In this case part of the sums awarded – the special damages of $30, 468.70 – is liquidated because the amount can be ascertained by a simple calculation or other positive data.[113] The Tribunal orders that interest is payable on this sum from the date that the special damages were incurred i.e. 3 November 2014.
[112] ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) s 31.2
[113] Spain v Union Steamship of New Zealand Ltd (1923) 32 CLR 138
There will be no order as to costs because section 48 of the ACAT Act states that parties to an application must bear their own costs unless the act otherwise provides or the tribunal otherwise orders. Although the tribunal may order the reasonable costs of a party where another party has caused unreasonable delay or obstruction while the tribunal was dealing with the application, there was no evidence of this conduct in the present case.
Conclusion
The Tribunal has rejected the applicant’s claim for an apology and for reinstatement of his access to the respondent’s social media sites. The Tribunal has also rejected the applicant’s claim for aggravated damages.
However, the Tribunal has found that the applicant is entitled to compensation pursuant to section 53E of the HRC Act and ordered that the respondent pay compensation in the sum of $62,817.71 including interest. The respondent has consented to the making of an order pursuant to section 53E(2)(a) of the HRC Act that it not repeat or continue to treat the applicant unfavourably. Further, the Tribunal has found that the respondent must reinstate the applicant’s membership of The Australian Croatian Club Limited from the date of the unlawful act in 2011 up until 2015 pursuant to section 53E(2)(b) of the HRC Act.
………………………………..
President P Spender
HEARING DETAILS
FILE NUMBER: | DT 10/12 |
PARTIES, APPLICANT: | Danijel Kovac |
PARTIES, RESPONDENT: | The Australian Croatian Club Limited |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Mr Macken |
SOLICITORS FOR APPLICANT | Mr Brackenreg, Meyer Vandenberg Lawyers |
SOLICITORS FOR RESPONDENT | Ms Sullivan, Bradley Allen Love Lawyers |
TRIBUNAL MEMBERS: | President P. Spender |
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