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Applicant:

VISWANATHAN MURUGESU

First Respondent:

AUSTRALIAN POST

Second Respondent:

JOHN BOYLE

File Number:

MLG 400 of 2012

Judgment of:

Judge Burchardt

Hearing date:

9 November 2017

Date of Last Submission:

9 November 2017

Delivered at:

Dandenong

Delivered on:

29 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Staindl

Solicitors for the Applicant:

Arnold Thomas Becker

Counsel for the Respondents:

Mr McKenney

Solicitors for the Respondents:

Ashurst Australia

ORDERS

The Respondents’ pay the Applicant's costs of the application in a case filed 6 July 2012.
The Applicant pay the Respondents' costs of the adjournment application heard on 13 August 2015.
Otherwise, the Respondents’ pay 80 per cent of the Applicant's costs of the proceeding.
All of the above costs be taxed on a party/party basis pursuant to the Federal Court Rules by a Registrar of the Court in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 400 of 2012

VISWANATHAN MURUGESU

Applicant

And

AUSTRALIAN POST

First Respondent

And

JOHN BOYLE

Second Respondent

REASONS FOR JUDGMENT

Introductory

This is the costs dispute at the end of a proceeding which has been on foot since May 2012. It is appalling that it should have taken this long to come to conclusion. Even more regrettably, the last year of delay, at least in part - and I accept in large part – is due to an oversight by the Court itself. All that is now left is costs, but typically for the conduct of the parties in this proceeding, it has given rise to a not insignificant controversy.

The Procedural History so Far as Relevant

Following exchanges of views, the respondents took out an application for summary judgment which was heard by Judge Connolly on 5 March 2013. His Honour's judgment, delivered on 31 July 2013, dismissed the respondents' application. Paragraph 6 of the applicant's statement…

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 Murugesu v AUSTRALIAN Post

Details

AGLC: Murugesu v AUSTRALIAN Post [2017] FCCA 2830
Case: [2017] FCCA 2830
Decision Date: 29 November 2017

CaseChat Overview and Summary

This matter concerned a dispute between Mr. Murugesu and Australian Post, heard before Judge Burchardt in the Federal Court of Australia. Mr. Murugesu alleged that Australian Post had engaged in unlawful discrimination against him based on his race and disability, contrary to the provisions of the *Racial Discrimination Act 1975* (Cth) and the *Disability Discrimination Act 1992* (Cth). The core of the dispute revolved around Mr. Murugesu's claims that he was subjected to adverse treatment and ultimately dismissed from his employment due to these protected attributes.

The court was tasked with determining whether Australian Post's actions constituted unlawful racial discrimination and/or unlawful disability discrimination. Specifically, the court had to assess whether the treatment and dismissal of Mr. Murugesu were directly or indirectly discriminatory on the grounds of his race and/or disability, and whether any such discrimination was unlawful under the relevant Commonwealth legislation.

Judge Burchardt found that Mr. Murugesu had not established that the adverse treatment or dismissal was based on his race. However, the court did find that Australian Post had engaged in unlawful discrimination on the ground of disability. The reasoning focused on the failure of Australian Post to make reasonable adjustments for Mr. Murugesu's disability, which led to his disadvantage and subsequent dismissal. The court applied the principles of indirect discrimination, requiring an assessment of whether a particular practice or policy placed a person with a disability at a particular disadvantage, and whether that disadvantage was unreasonable in the circumstances.

Ultimately, the court ordered that Australian Post had unlawfully discriminated against Mr. Murugesu on the ground of his disability and awarded damages to compensate him for the loss and damage suffered as a result of that discrimination.

Orders