FEDERAL MAGISTRATES COURT OF AUSTRALIA
Rajiv Oberoi v Human Rights and Equal Opportunity Commission & Ors [2001] FMCA 34
HUMAN RIGHTS – disability discrimination – complaint against Conciliation Officer referred to Commissioner - whether the Commissioner’s (second respondent) decision not to send the applicant’s case to inquiry by Hearing Commissioner involved discrimination – disability discrimination found against second respondent – Commissioner attributed less credibility to statements of the applicant where they conflicted with statements of the Conciliation Officer due to the applicant’s depression - evidence found in an e-mail written to fourth respondent – second respondent acted as agent of first respondent – third respondent reviewing Commissioner’s decision did not permit the discrimination as there is no evidence she saw the e-mail – fourth respondent may have assisted in producing the decision but did not permit the discrimination as she may not have had power to prevent it –racial discrimination claim dismissed
DAMAGES – aggravated damages not awarded – general and special damages awarded
Disability Discrimination Act 1992 (Cth) ss. 5, 24,122
Racial Discrimination Act 1975 (Cth) ss. 9, 13, 18A
Elliot v Nanda & Commonwealth [2001] FCA 418 discussed
Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 referred to
Adelaide City Corporation v Australian Performing Arts Association Ltd (1928) 40 CLR 481 referred to
Tadawan v State of South Australia [2001] FMCA 25 referred to
Bradshaw v McEwans Pty Ltd (1951) unreported High Court of Australia referred to
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 referred to
X v McHugh, Auditor-General for the State of Tasmania (1994) EOC 92-623 discussed
Shiels v James [2000] FMC 2 I referred to
Harwin v Patulech No H94/40 before Commissioner Kevin O’Connor 21 August 1995 referred to
Smith v Buvet & Anor (1996) EOC 92-840 referred to
McKenna v State of Victoria & Ors (1998) EOC 92-927 considered
State of Victoria v McKenna [1999] VSC 310 considered
Cachia v Hanes & Anor 120 ALR 385 followed
ApplicantRajiv Oberoi
Respondent: Human Rights and Equal Opportunity Commission
File No:SZ 53 of 2001
Delivered on: 7 June 2001
Delivered at: Sydney
Hearing Date: 28 and 29 May 2001
Judgment of: Raphael FM
REPRESENTATION:
Solicitors for the Applicant: Mr Rajiv Oberoi in person
Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor
ORDERS:
Claim under ss. 9, 13 and 18A of the Racial Discrimination Act dismissed against all respondents.
Claim under ss. 5, 24 and 122 of the Disability Discrimination Act upheld against the first and second respondents, dismissed against the third and fourth respondents.
First and second respondents to pay the applicant the sum of $20,000 by way of damages.
The first respondent through its President to provide an apology to the applicant, the provision of the apology to be stayed pending the time limited for any appeal against this decision and pending the decision in any appeal that may be made against this decision.
Note: Settlement and entry of orders is dealt with in Order 36…
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- AGLC
- Oberoi v HREOC [2001] FMCA 34
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- [2001] FMCA 34
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