Riley v SJ Traffic Management Pty Ltd
[2022] FedCFamC2G 896
•24 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Riley v SJ Traffic Management Pty Ltd [2022] FedCFamC2G 896
File number(s): PEG 215 of 2021 Judgment of: JUDGE STREET Date of judgment: 24 October 2022 Catchwords: HUMAN RIGHTS – RACIAL DISCRIMINATION – where the second respondent has failed to participate in the proceedings –applicant indigenous Australian – default judgment hearing as between the applicant and the second respondent – unlawful discrimination by second respondent under ss 9 and 18C – declaration made as to unlawful conduct by second respondent – significant loss and damage suffered by applicant in respect of unlawful racial discrimination – impact of racial discrimination in his own country – aggravating fake apology – compensation for loss and damage totalling $70,000 against second respondent – lump sum interest on past component ordered against second respondent Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO(4)(b)
Corporations Act2001 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.05(2)(c), 13.05(2)(d), 13.06(1)(e)
Racial Discrimination Act 1975 (Cth) ss 9, 18C
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 24 October 2022 Place: Sydney Solicitor for the Applicant: Mr R Aslanian, Connect Legal Solicitor for the First Respondent: Mr M Used, Pragma Legal Solicitor for the Second Respondent: No appearance ORDERS
PEG 215 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICHOLAS DEAN RILEY
Applicant
AND: SJ TRAFFIC MANAGEMENT PTY LTD (ABN 62 616 399 163)
First Respondent
JOHN COLLINS
Second Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
24 OCTOBER 2022
THE COURT ORDERS THAT:
As between the Applicant and the First Respondent:
1.Order 8 made on 21 August 2022 is dissolved.
2.Pursuant to s 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 30.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the matter as between the applicant and the first respondent is referred to mediation before a Registrar of the Court.
3.The applicant and first respondent are to cooperate with any direction made by the Registrar for the purpose of the mediation.
4.The applicant and the first respondent are to seek to have the matter relisted within 28 days of an unsuccessful mediation.
As between the Applicant and the Second Respondent:
5.Pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the matter proceed by way of default judgment hearing.
6.Pursuant to r 13.05(2)(c)-(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the facts pleaded in the Statement of Claim are taken to be admitted as against the second respondent.
7.The Court declares that, pursuant to s 46PO(4)(a) of the Australian Human Right Commission Act 1986 (Cth), the second respondent committed unlawful discrimination against the applicant, contrary to ss 9 and 18C of the Racial Discrimination Act 1975 (Cth).
8.Pursuant to s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth), the second respondent pay to the applicant damages by way of compensation for loss and damage suffered because of the unlawful discrimination conduct of the second respondent in the amount of $70,000.00.
9.The second respondent pay to the applicant the amount of $2,000.00 in lieu of a calculation of interest on past general damages from the date of filing the Statement of Claim up to the date of judgment pursuant to s 211(3)(d) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
10.The second respondent pay to the applicant the total judgment sum of $72,000.00 pursuant to Orders 8 and 9 above within 28 days.
11.The second respondent pay the applicant’s costs of the proceedings to date in an amount to be agreed or assessed.
the court notes that:
A.The first respondent came out of administration on 14 September 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
These proceedings were commenced on 14 October 2021 in respect of alleged unlawful discrimination in the workplace, joining the applicant’s employer as the first respondent and a former employee as the second respondent. The first respondent went into administration and was the subject of a stay, pursuant to the Corporations Act2001 (Cth), on the 12 August 2022, but came out of administration on 14 September 2022.
These proceedings are ones in respect of which the second respondent has failed to participate. The matter was before the Court on 10 November 2021, 12 May 2022 and 12 August 2022, and the second respondent failed to appear on those occasions.
On 12 August 2022, orders were made confirming service on the second respondent and foreshadowing that the Court would permit the applicant to seek default judgment against the second respondent if the second respondent failed to appear and or comply with the earlier Court orders.
It is apparent that there has been default by the second respondent in respect of the orders made by the Court under the rules, as has been helpfully summarised in the submissions of the applicant in respect of the seeking of a default declaration and order for damages, interest, and costs, which are as follows:
8.Since 9 May 2022, the Applicant respectfully submits that the Second Respondent has been in default of these proceedings, including but not limited to:
a.in default of rule 6.01(1), the Second Respondent has failed to provide an address for service;
b.the Second Respondent has failed to appear at the 12 May 2022 directions hearing;
c.the Second Respondent failed to appear on the 12 August 2022 directions hearing;
d.the Second respondent has failed to file and serve a defence to the statement of claim on or before 30 September 2022 in breach of order 5, made on 12 August 2022;
e.the Second Respondent generally has filed to serve any response or defence to the application;
f.the Second Respondent is unlikely to appear at the 24 October hearing.
9.In the circumstances the Applicant submits that the Respondent is in default of rule 13.04(2), including because the Respondent has:
a. (a) has not satisfied the Applicant’s claim;
b.(b)(i) failed to give an address for service before the time for the Respondent to give an address has expired;
c. (b)(vi) fails to file and serve a document required under these rules;
d. (b)(vii) defend the proceedings with due diligence;
10.The Applicant therefore moves for an order under rule 13.05 for judgment against the Second Respondent pursuant
a.to rule 13.05(2)(c) for the relief set-out in the Applicant’s statement of claim, further particularised in the submissions below;
b.or in the alternative, under rule 13.05(d) to give judgment against the Second Respondent;
c.or in the alternative rule 13.06(2) where the Court is permitted to make any order the Court thinks just.
11. Further under rule 13.06(1)(e), the Court is permitted to proceed with the hearing in the absence of the Second Respondent and under rule 13.06(2), again is permitted to make any order and proceed with the hearing in the absence of the Respondent as the Court thinks just.
Those submissions, dated 5 October 2022, address in detail the factual background identified in the applicant’s affidavit of 8 September 2022, as follows:
a.the Applicant, Mr. Riley, was employed by various labour-hire companies working as a Traffic Controller, based with the First Respondent, SJ Traffic Management Pty Ltd and working with other workers employed by the First Respondent;
b.the Applicant, Mr. Riley, was employed by the First Respondent, SJ Traffic Management Pty Ltd from at least 3 February 2020;
c.at all material times, the Applicant worked with a fellow worker, named Mr. John Collins, who was employed by the First Respondent, and who worked with the Applicant at various construction sites, including at Bunbury, Bussell Highway, Dwellingup Town and Cojinup Town, collectively referred to as: “Roadside worksites”
d.at all material times, the Applicant had darker skin and was of Aboriginal Australian race, descent, national or ethnic origin within the meaning of sections 9 and 18(c) of the Racial Discrimination Act 1975 (“RD Act”) (“Applicant’s race and skin colour”)
e.at all material times, the Roadside Worksites were places that are: “ otherwise than in private” for the purposes of s.18C(1) of the RD Act.
f.at all material times, Mr. Collins was a person capable of being sued pursuant to s.9 and 18C of the RD Act.
g.during the employment of both Ms. Collins and the Applicant and whilst they were working on roadside worksites, Mr. Collins undertook, inter-alia, the following conduct:
i.whilst referring to a grass tree, say to the Applicant: “Look at that black boy.” The term: “black boy” is derogatory and originates from the word: “Balga” and the Applicant repeats the particulars in paragraph 11, and the Applicant was upset and offended by the phraseology and the fact that Mr. Collins was referring to the Applicant and no other employee; (“Black boy statements”)
ii.saying to the Applicant, as well as other work colleagues, why the skin of other Aboriginal workers was so dark and whether they had been standing in the sun too much; (“Skin colour statements”)
iii.saying to the Applicant, inquiring why Aboriginal persons spoke so much about the land and that it was too much and not saying the same thing to others who were not of the Applicant’s race; (“Land statements”)
iv.in early September 2019, when exiting a vehicle, and in the Applicant’s presence at a sacred burial ground for Aboriginal persons, Mr. Collins said words to the effect: “What are we doing here digging for bones?; 10 (“Digging for bones statement”)
v.on 27 May 2020, during an in-person discussion at a roadside, Mr. Collins said that the Applicant looked like a: “Fucking nigger.” For which later in the evening, he text-messages the Applicant: “Hey cunt, sorry about the N word, lucky you have a sense of humour. :)” (“N-word statement”)
h.the conduct above pleaded in the statement of claim, was conducted by Mr Collins,, which amounted to a contravention of s.9 of the RD Act, in circumstances where:
i.the conduct was based on race or colour because:
•referring to a grass tree as a: “black boy” and then directing those comments at the Applicant, or in the Applicant’s vicinity was conduct which both elicited a racial motive with the connotations of: “black boy” and the particular plant and also elicited motivations related to skin colour, and further to the extent that the comments were made to the Applicant, they were said to him because of his race and skin colour;
•referring to the skin colour of Aboriginals and whether or not they were dark because they had been standing in the sun too much is self-evidently statements made about, or based on rce or skin colour;
•questioning the Applicant about why Aboriginals spoke too much about the land were self-evidently statements made because of race or skin colour and particularly, the race or skin colour of the Applicant’s group;
•statements about digging for bones had a clear racial inference surrounding this sacred burial ground for Aboriginal persons;
•the statement “Fucking nigger” was a clear, obvious and self-evident racial slur, harking back to the era of slavery in the United States of America and the mistreatment of African Americans and other persons of colour;
ii.the First Respondent’s other employees or workers who were not of the Applicant’s race were not subject to those acts;
iii.the acts therefore involved a distinction or a exclusion and / or a preference based on race or skin colour;
iv.the acts constituted words and conduct, which degraded, insulted and demeaned, either the Applicant for being of that race or skin colour, and others in the Applicant’s group for being of that race or skin colour;
v.the acts caused the Applicant actual detriment or grievance because he was upset by the conduct, such that it nullified or impaired the recognition, enjoyment or exercise on an equal footing of any Human Right or fundamental freedom for the Applicant in a workplace, which is a field of public life;
i.the conduct above pleaded in the statement of claim was conducted by Mr. Collings which amounted to a contravention of s.18C of the RD Act, in circumstances where:
i.the conduct was not done in private;
ii.the conduct was reasonably likely and did offend, insult, humiliate and intimidate the Applicant;
iii.the conduct was undertaken because of the Applicant’s race or skin colour and / or the race or skin colour of persons in the Applicant’s group and the Applicant otherwise repeats his submissions in section 9.
The submissions also addressed the statutory requirements in respect of the alleged unlawful conduct, identifying the serious and significant impact that the conduct has had upon the applicant in the present case which, on the evidence as against the second respondent, identifies significant and serious impact on the health and wellbeing of the applicant, who has had ongoing anxiety and depression as a result of the unlawful conduct by the second respondent.
The continued failure to appear by the second respondent when the Court is satisfied that notice of these proceedings has been given to the second respondent and service has been confirmed justifies an order under r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) that the Court should proceed with the hearing. Given the defaults that have occurred, the Court is satisfied that this is an appropriate matter to make an order pursuant to rr 13.05(2)(c) and (d) the Rules, that the matter proceed by way of a default judgment hearing. Further, pursuant to rr 13.05(2)(c) and (d) of the Rules, the facts pleaded in the statement of claim as against the second respondent are taken to be admitted. The Court notes that the first respondent identified that it had no opposition to the Court dealing with the issue of the declaration and damages as sought by the applicant against the second respondent.
In that regard, these proceedings were commenced, as identified, in October 2021. It is not due to any conduct of the applicant that the matter has not been able to progress more expeditiously. It was a proper and fair course for the first respondent to take not to oppose the applicant proceeding to obtain the benefit of rights that the applicant is entitled to, given the default and the consequential admissions, and upon the otherwise untested evidence that the Court is taking into account in assessing damages.
The Court is not making any findings in respect of the first respondent and is aware, on the evidence before the Court, of the constructive role played by the first respondent in employing indigenous people in the course of its business. No observation made by the Court in this assessment reflects any determination of the issues yet to be decided, if necessary, by the Court that may arise as between the applicant and the first respondent. It is, however, a positive feature that the first respondent has not further delayed the applicant seeking remedies against the second respondent today.
In addition to the admissions that flow in respect of the contraventions pleaded of ss 9 and 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”), on the facts identified in the pleading, there is in fact an affidavit of the applicant that provides a factual context together with the admissions to support the making of a declaration and damages order as against the second respondent. It is not necessary for the Court to address in detail the factual matrix addressed by the admissions from the pleading and the applicant’s indigenous race, culture and identity that have been set out in his affidavit, because the matter is proceeding by way of default orders against the second respondent.
However, considerable care has been taken to identify the significance of the applicant’s identification as an Indigenous Australian and the importance of his heritage and the role of his family within the Aboriginal community, as well as the applicant’s personal background and circumstances. That affidavit addressed, in detail, the importance of the applicant’s Aboriginal race and heritage, identifying a culture that has been one of the oldest on earth as well as the gravity and significance of the conduct treating him differently as an Indigenous Australian because of his race in his own country.
The affidavit identified the relevant factual engagements with the second respondent, the subject of the admissions identified from the statement of claim, and the significant and substantial impact it had upon the applicant in his workplace and the events occurring, relevantly, in terms of acts in a public place.
Because of the default judgment context the Court does not propose to descend into the whole of the factual context, but accepts as against the second respondent that it led to the applicant being unable to work and, in fact, being unfit for work, and led to the applicant leaving his workplace. The Court also accepts that the conduct had a most significant and continuing impact on the applicant in relation to his mental health and wellbeing, as well as causing him significant distress and suffering and hurt. The applicant’s affidavit addressed the impact of the discrimination that he experienced as an Indigenous person in relation to his future, and the impact upon his own personality and his anxiety.
The psychologist’s supporting assessment, dated 20 September 2022, identified further the impact on the applicant. The assessment of the applicant’s general anxiety disorder was rated as severe in impairment and chronic in duration, as required under the relevant DSM code. The psychologist identified the level of impairment being weighted as moderate, as well as being severe and acute in duration for six months, and that the adjustment disorder is one that has had an impact on the applicant’s functioning and that his condition is compounded by his fear of being labelled in a particular way.
The Court adopts the various defaults described in paragraphs 8, 9 and 10 of the applicant’s submissions (above), being the default under the current Rules as identified. The Court adopts the case law discussion identified in relation to s 9 of the Act in paragraphs 13 to 15 of the applicant’s submissions:
13. In the decision of Murugusu v Australian Postal Corporation [2015] FCCA 2852 the Court found that the employer in that case racially discriminated (as understood under the RD Act) the Applicant because of his black skin colour, by referring to the Applicant as a: “black bastard”.
14.At paragraphs 29 and 245 to 247 of Murugusu, Judge Burchardt provided a synopsis of previous employment related race discrimination type claims and found that the discriminatory statements made with reference to the Applicant’s skin colour, did constitute unlawful racial discrimination.
[245] Both parties proceeded on the implicit understanding that if the racial abuse alleged against Mr Boyle was found to have occurred it would constitute conduct contravening the provisions of the RDA. It is well established that racial abuse of an employee can contravene the terms of s.9 of the RDA. See, for example, Kordos v Plumrose (Australia) Ltd (1989) EOC 92-256. More recently Qantas Airways Ltd v Gama [2008] FCAFC 69 the Full Court of the Federal Court, per French, Branson and Jacobson JJ said at [76]-[77]:
“[76] We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve “a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin …”. The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.
[77] The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any “human right or fundamental freedom …”. The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.”
[246] The right to just and favourable conditions of work in my view obviously includes a right to work in an environment free of racist insult. There is no question of the facts of this case that Mr Murugesu was subject to racist insult on occasions by Mr Boyle. Similarly it is clear on the facts that this was not as isolated as was found by Raphael FM in Gama first instance, and the evidence of Mr Murugesu makes it clear that the insults had a major effect on him.
[247] Drawing on the terms of s.9 (which I have not found it necessary to set out in full) there is no question that the racist insults inflicted upon Mr Murugesu by Mr Boyle involved a distinction based on his race and colour and national and ethnic origin and there is equally no question that it had the effect to the nullifying and impairing Mr Murugesu’s enjoyment on an equal footing of his human right, (referred to in Schedule 2 of the Act), to just and favourable conditions at work.
15. In the same year the Full Court, of the Federal Court in Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139 said the following at paragraphs [57] – [60] identified three elements to section 9(1)
a. First, there must be an act involving a distinction, exclusion, restriction or preference.
b. Then, the distinction, exclusion, restriction or preference must be based on race, colour, descent or national or ethnic origin.
c. Next, the act must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, in this case, of a right to work or to just and favourable conditions of work.
The Court adopts the elements in relation to s 18C of the Act as identified in paragraph 16 of the applicant’s submissions:
16.In relation to section 18C, It is submitted that the following elements must be met:
a.there is a casual connection between the act done, in this case the making of the comments, and the Applicant’s race, colour, or national or ethnic origins;
b.That on an objective basis, the act was reasonably likely to offend a person of the Applicant’s race, colour or national or ethnic background. Proof of actual offence is not required (see Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 at [241]); and
c.The impugned act, being the making of the comments did not occur in private and establishing that it occurred in a public place is not sufficient to establish this (see Korczac v Commonwealth of Australia (Department of Defence) [1999] HREOCA 29; (2000) EOC 93-056).
The Court finds that, on the evidence before the Court, the second respondent committed unlawful discrimination against the applicant, contrary to ss 9 and 18C of the Racial Discrimination Act 1975 (Cth).
As indicated earlier, the Court does not propose to further address the material facts beyond observing that, in the present case, this is one where, in respect of one act of unlawful conduct, there is also a corroborating text message admission by the second respondent reflecting a fake and aggravating alleged apology with a laughing emoji at the end of the following sentence:
Hey, cunt. Sorry about the N-word, lucky you have a sense of humour!
The submissions identify the overlap between the statement of claim and the applicant’s affidavit, and the impact on the applicant of the unlawful conduct by the second respondent. In that regard, the applicant sought both a declaration of unlawful conduct as well as damages and an apology.
The Court sees no real benefit or utility in giving the second respondent an opportunity to further apologise, given that the second respondent has not participated in the proceedings, and particularly in the context of the fake aggravating apology earlier made. Accordingly, the Court does not propose to make an order in relation to an apology under s 46PO(4)(b) of the Australian Human Rights Commission Act 1986 (Cth).
The Court finds on the above evidence that the applicant has suffered significant past general damages in the sum of $50,000 and that the applicant is still the subject of ongoing general damage, loss, pain and suffering because of the unlawful conduct of the second respondent. The Court finds the applicant has suffered future loss and damage in the sum of $20,000. The Court finds that the total damages by way of compensation for the loss and damage suffered by the applicant because of the unlawful conduct of the respondent amount to s70,000 under s46PO (4) (d) of the Act. The Court has taken into account in this case on the past component of that loss and damage which that it is appropriate to make an order for lump sum interest rather than the calculation that would otherwise be made under the Rules from the date of the statement of claim up to judgment.
Accordingly, the Court makes the orders as between the applicant and the second respondent.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 October 2022 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 11 November 2021
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