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Oberoi v HREOC

Oberoi v HREOC

Case [2001] FMCA 34 21 June 2001

Disability Discrimination Act 1992 (Cth)

Unconscionable Conduct

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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…

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 Oberoi v HREOC

Details

AGLC: Oberoi v HREOC [2001] FMCA 34
Case: [2001] FMCA 34
Decision Date: 21 June 2001

CaseChat Overview and Summary

Rajiv Oberoi commenced proceedings against the Human Rights and Equal Opportunity Commission (HREOC) and three of its officers, alleging disability and racial discrimination in the handling of his complaint against another officer of the Commission, Mr Beale. The disability discrimination claim arose from the decision of Peter Johnston, a Commissioner with HREOC, to dismiss Oberoi's complaint against Beale on the basis of insufficient evidence, which Oberoi argued was influenced by his depression. The racial discrimination claim was based on the cumulative effect of the actions of HREOC, which Oberoi said created a negative atmosphere for racial discrimination claims and resulted in Beale being given credibility over him. The court considered evidence, including an email from Johnston to a legal officer, Susan Roberts, which revealed Johnston's assumptions about Oberoi's credibility due to his depression. The court found that Johnston's decision to not refer the matter to a Hearing Commissioner, based on his assumption about Oberoi's credibility, constituted less favourable treatment than would have been given to a person without Oberoi's disability, amounting to discrimination under the Disability Discrimination Act 1992. Regarding the racial discrimination claim, the court found that the evidence did not support the inference that Oberoi's treatment was influenced by his ethnicity. The court awarded Oberoi $20,000 in damages, including special damages for the costs of sports equipment and legal advice, and ordered HREOC to provide an apology to Oberoi. The court dismissed the racial discrimination claim against all respondents.

Orders