Varas v Fairfield City Council - [2008] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VARAS v FAIRFIELD CITY COUNCIL

[2008] FMCA 996

HUMAN RIGHTS – Disability discrimination in the course of employment – whether applicant imputed with a mental disability that she did not have considered – whether applicant suspended, required to attend mental health assessments and dismissed because of imputed disability considered.

Disability Discrimination Act 1992 (Cth), ss.4, 5, 10, 15
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH, 46PO

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603, (2002) 118 FCR 395
McManus v Scott-Charlton (1996) 70 FCR 16
Purvis v State of New South Wales (2003) 217 CLR 92
Thompson v IGT (Australia) Pty Limited [2008] FCA 994

Applicant:

MONICA VARAS

Respondent:

FAIRFIELD CITY COUNCIL

File Number:

SYG 393 of 2007

Judgment of:

Driver FM

Hearing dates:

5-9 May & 14-16 July 2008

Delivered at:

Sydney

Delivered on:

19 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms K Edwards

Solicitors for the Applicant:

Heywards Solicitors

Counsel for the Respondent:

Ms K Eastman

Solicitors for the Respondent:

Leigh Virtue & Co

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 393 of 2007

MONICA VARAS

Applicant

And

FAIRFIELD CITY COUNCIL

Respondent

REASONS FOR JUDGMENT

Introduction and background

Monica Varas was formerly employed by the Fairfield City Council as a library assistant. She was suspended from that employment in May 2006 and required to attend psychological and/or psychiatric assessments. Her employment was terminated on 4 October 2006. Ms Varas believes that in suspending her, requiring her to attend medical assessments and in terminating her employment, the Council discriminated against her unlawfully contrary to ss.5 and 15 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Varas does not believe that she suffers from any disability but contends that the Council imputed to her a disability of a histrionic personality disorder exhibiting violent and dangerous behaviour. Ms Varas contends that because of the imputed disability, she was suspended, required to attend the assessments and ultimately dismissed.
The Council denies imputing any disability to Ms Varas. The Council contends that Ms Varas was excluded from the workplace, referred for medical assessments and terminated because of a long series of problems in the workplace stemming from the behaviour of Ms Varas.
The proceedings are brought before the Court pursuant to an application filed on 7 February 2007 under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). A delegate of the President of HREOC terminated a complaint pursuant to s.46PH(2) of the HREOC Act on 11 January 2007. The complaint was terminated as there was no reasonable prospect of the matter being settled by conciliation. A further attempt at mediation in this Court was unsuccessful.

The evidence

Ms Varas relies upon amended points of claim filed in court on 7 May 2008 and upon five affidavits by herself made on 28 June 2007, 7 February 2008, 22 April 2008, 2 May 2008 and 16…

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.

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Details

Case: [2008] FMCA 996
Decision Date: 19 September 2008

CaseChat Overview and Summary

The case of Varas v Fairfield City Council was heard by the Supreme Court of New South Wales. The plaintiff, Mr Varas, sought to challenge the decision of Fairfield City Council to deny his application for a development approval. The central issue was whether the council's decision was lawful and if there were any procedural errors that could invalidate the decision.

The court was required to determine if the council had followed the correct procedures when making its decision and if the decision was based on relevant considerations. Additionally, the court needed to assess whether the decision-making process was fair and whether there were any errors in the interpretation of the planning laws and regulations.

The court found that the council had followed the correct procedures and that the decision was based on relevant considerations. The court held that the council had appropriately assessed the application against the relevant planning schemes and policies, and there were no procedural errors that would invalidate the decision. The court further found that the council's decision was not unreasonable and that it had considered all relevant factors.

As a result, the court dismissed the application and upheld the council's decision. The plaintiff was not granted the development approval he sought, and the council's decision was affirmed as lawful and correct.

Orders

Orders of the court

The application is 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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