Greenhalgh v Human Rights Commission of Australia [1997] FCA 1614

JUDGMENT No. LE LG INZEF2

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No.NG 158 of 1997 GENERAL DIVISION )

Between: KAREN GREENHALGH ee Applicant

And: HUMAN RIGHTS COMMISSION of AUSTRALIA

First Respondent

And: NATIONAL AUSTRALIA BANK LTD Second Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 1 OCTOBER 1997

By an amended application for order of review filed with consent and by leave, the applicant seeks relief under' the Administrative Decisions (Judicial Review) Act in relation to a determination of the Human Rights and Equal Opportunity Commission made on 23 January 1997. In that determination the Commission found that the second respondent, the National Australia Bank, had been in breach of its obligations under the Sex Discrimination Act in that it or one of its employees had

sexually harassed the applicant.

As a consequence of that finding which was accompanied by some other ancillary findings, the Commission awarded the applicant damages in the sum of $14,000 pursuant to section 81(1) (b) (iv)

of the Sex Discrimination Act by way of compensation for the

loss and damage which she suffered from the sexual harassment. The applicant has sought the intervention of the Court on the basis that the Commission erred in law in failing to award the applicant aggravated damages and in certain other less significant respects. The argument advanced has been that the findings of fact made by the Commission must have led as a matter of law to an award of aggravated damages. In fact the applicant has asked this Court to assess such damages or, as an alternative, to increase the general damages awarded by the

Commission.

In my opinion, this proceeding is very doubtfully based. It is not necessary for present purposes to examine whether, in the present incarnation of the Sex Discrimination Act, there is available judicial review at the instance of the applicant in circumstances such as this. At any rate, there must be some considerable doubt as to whether judicial review applies at all, having in mind the fact that the findings of the Commission are by section 81 non-binding on the parties and presumably on the community at large. For that reason alone it is difficult to imagine in those circumstances how a court of review could examine the matters which have been raised. There are also other problems concerning jurisdiction, including whether a successful applicant can, in the present state of legislation,