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Mansell v Centrelink (No.2)

Mansell v Centrelink (No.2)

Case [2009] FMCA 640 8 July 2009

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Administrative Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANSELL v CENTRELINK (No.2)

[2009] FMCA 640

HUMAN RIGHTS – Disability discrimination – hearing disability – alleged less favourable treatment – alleged harassment – playing of radio in the workplace – leave to visit mother – exclusion from workplace activities – speaking across room – performance review – training session.

Disability Discrimination Act1992 (Cth), ss.4, 5, 15(2), 35(2)
Evidence Act 1995 (Cth), s.140(1) & (2).
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH(1)(i) & 46PO

ACCC v Maritime Union of Australia (2001) 114 FCR 472; [2001] FCA 1549
Briginshaw v Briginshaw (1938) 60 CLR 336
Catholic Education Office v Clarke (2004) 138 FCR 121, [2004] FCAFC 197
IW v City of Perth (1997) 191 CLR 1
Macedonian Teachers’ Assn of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
Mansell v Centrelink [2008] FMCA 127
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Re Dellow’s Will Trusts [1964] 1 WLR 451
Rejfek v McElory (1965) 112 CLR 517
Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702
SZIRS v Minister for Immigration & Anor [2007] FMCA 214

Australian Concise Oxford Dictionary
The Concise Oxford Dictionary of Current English (7^th Edn) (Oxford: Oxford University Press, 1982)

Applicant:

PAULINE ANNETTE MANSELL

Respondent:

CENTRELINK

File Number:

PEG 63 of 2007

Judgment of:

Lucev FM

Hearing dates:

13-14 December 2007; 21-22 April 2008

Date of Last Submission:

9 July 2008

Delivered at:

Perth

Delivered on:

8 July 2009

REPRESENTATION

Counsel for the Applicant:

Ms A Aldrich and Ms C Samarasinghe, and later Ms CH Thompson

Solicitors for the Applicant:

Alison & Associates

Counsel for the Respondent:

Ms P Giles and Ms S Oliver

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 63 of 2007

PAULINE ANNETTE MANSELL

Applicant

And

CENTRELINK

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Pauline Annette Mansell,[1] is an employee of the respondent, Centrelink.
[1] “Ms Mansell”.
Ms Mansell, who suffers from a hearing disability, alleges unlawful discrimination and harassment against her by Centrelink in contravention of the Disability Discrimination Act 1992 (Cth).[2]
[2] “DD Act”.

Background facts and matters not in dispute

Centrelink is a Commonwealth Government entity responsible, in broad terms, for the provision of various social security and welfare payments to those entitled to those payments.
Ms Mansell was employed by Centrelink as a Customer Services Officer on 14 February 2000. Following a medical assessment in 2002 and difficulties with conversing with clients in open plan offices where there was significant background noise she was re-appointed to mail room duties from September 2003. From May 2004 until December 2005 Ms Mansell worked in the centralised mail team in the Spearwood and Forrest Place…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mansell v Centrelink (No.2)

Details

AGLC: Mansell v Centrelink (No.2) [2009] FMCA 640
Case: [2009] FMCA 640
Decision Date: 8 July 2009

CaseChat Overview and Summary

In Mansell v Centrelink (No.2), the applicant sought judicial review of a decision by Centrelink to refuse to pay her certain payments due to her incarceration in a correctional facility. The case was heard in the Federal Court of Australia. The applicant argued that the decision was unreasonable and that there was a failure to consider her personal circumstances and the potential impact of the decision on her ability to support her children.

The court was required to determine whether the decision was lawful, rational, and based on relevant considerations. It also needed to assess whether the decision-maker had correctly applied the relevant statutory provisions and if the decision was open to judicial review. Furthermore, the court had to examine whether the decision was so unreasonable that no reasonable person could have made it.

The court found that the decision was based on a lawful and rational assessment of the applicant's circumstances and the statutory provisions. It was determined that the decision-maker had considered the relevant factors and had applied the law correctly. The court concluded that the decision was not so unreasonable that it could not have been made by a reasonable person. Therefore, the application for judicial review was dismissed. The court upheld the decision of Centrelink and found that the applicant's claims were without merit.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Mansell v Centrelink (No.2) [2009] FMCA 640

Cases Citing This Decision

No citing cases yet.

Cases Cited

Shelley and Hunt and Ors [2010] FamCA 225
Citation 1 (Para 5)

…1] Gama FCR at 574 and 576-577 per Branson J; FCAFC at paras.128 and 137-139 per Branson J; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeye…
Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702
Citation 2 (Para 3)

…as a reason for the allegedly discriminatory conduct.[11] [11] Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378 at 393 per Gordon J; [2008] FCA 702 at para.48 per Gordon J…
Mansell v Centrelink [2008] FMCA 127
Citation 3 (Para 6)

…The discrimination claim is a claim of direct discrimination, not indirect discrimination.[4] [4] See Mansell v Centrelink [2008] FMCA 127 (“ Mansell (No.1) ”).…
SZIRS v Minister for Immigration & Anor [2007] FMCA 214
Citation 4 (Para 5)

…60 CLR 336 at 361-363 per Dixon J; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; SZIRS v Minister for Immigration & Anor [2007] FMCA 214 at para.50 per Lucev FM [22] Gama FCR at 577 per Branson J; FCAFC at para.139 per Branson J (with whom French and Jacobson JJ generally agreed in this…
Gama v Qantas Airways Ltd [2006] FMCA 11
Citation 5 (Para 3)

…cur without any intention on the part of the person breaching the relevant principles to do so.[20] [19] “ HREOC Act ” [20] Qantas Airways v Gama (2008) 167 FCR 537 at 575 per Branson J; [2008] FCAFC 69 at para 133 per Branson J (“ Gama ”)…
Catholic Education Office v Clarke [2004] FCAFC 197
Citation 6 (Para 4)

…esponse to the needs of a person with a disability.[12] [12] Catholic Education Office v Clarke (2004) 138 FCR 121 at 136 per Sackville and Stone JJ, [2004] FCAFC 197 at para.67 per Sackville and Stone JJ…
Purvis v New South Wales [2003] HCA 62
Citation 7 (Para 2)

…to the treatment of other members in Ms Mansell’s workplace who did not have a hearing disability. [10] Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 (“ Purvis ”)…
Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549
Citation 8 (Para 7)

…idicule in front of her colleagues at the training session. [15] ACCC v Maritime Union of Australia (2001) 114 FCR 472 at 485 per Hill J; [2001] FCA 1549 at para.60 per Hill J…
Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650
Citation 9 (Para 1)

…etation which is “ literal or technical ”.[9] [8] Macedonian Teachers’ Assn of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 29 per Weinberg J [9] IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J…
Marks v GIO Australia Holdings Ltd [1998] HCA 69
Citation 10 (Para 3)

…particularly whether Ms Mansell’s hearing disability was a reason for the allegedly discriminatory conduct.[11] [11] Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378 at 393 per Gordon J; [2008] FCA 702 at para.48 per Gordon J…
IW v City of Perth [1997] HCA 30
Citation 11 (Para 1)

…Teachers’ Assn of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 29 per Weinberg J [9] IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCATrans 297
Citation 12 (Para 5)

…tances in which it is sought to be proved.[22] [21] Gama FCR at 574 and 576-577 per Branson J; FCAFC at paras.128 and 137-139 per Branson J; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies…
Rejfek v McElroy [1965] HCA 46
Citation 13 (Para 5)

…see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 per Dixon J; Re Dellow’s Will Tru…
Briginshaw v Briginshaw [1938] HCA 36
Citation 14 (Para 5)

…0-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 per Dixon J; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; SZIRS v Minister for Immigration & Anor […
Briginshaw v Briginshaw [1938] HCA 34
Citation 15 (Para 5)

…nan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 per Dixon J; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; SZIRS v Minister for Immigration & Anor [2007] FMCA…

Legislation Cited

Disability Discrimination Act 1992 (Cth) 15(2), 35(2), 4, 5
5 mentions (from Para 2)
Evidence Act 1995 (Cth) 140(1)
1 mention (from Para 2)