FEDERAL COURT OF AUSTRALIA Commonwealth v Innes [2000] FCA 383 COMMONWEALTH OF AUSTRALIA v GRAEME INNES AM & ANOR A 65 of 1999 FINN J CANBERRA 28 MARCH 2000 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY A 65 OF 1999 DISTRICT REGISTRY BETWEEN: COMMONWEALTH OF AUSTRALIA APPLICANT AND: GRAEME INNES AM in his capacity as a Commissioner of the Human Rights and Equal Opportunity Commission FIRST RESPONDENT NATASHA REES SECOND RESPONDENT JUDGE: FINN J DATE OF ORDER: 28 MARCH 2000 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. the application be allowed; 2. the decision of the first respondent dated 15 July 1999 be set aside; and 3. the matter be referred to the Human Rights and Equal Opportunity Commission, differently constituted, for reconsideration according to law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 65 OF 1999 BETWEEN: COMMONWEALTH OF AUSTRALIA APPLICANT AND: GRAEME INNES AM in his capacity as a Commissioner of the Human Rights and Equal Opportunity Commission FIRST RESPONDENT NATASHA REES SECOND RESPONDENT JUDGE: FINN J DATE: 28 MARCH 2000 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This application by the Commonwealth of Australia for an order of review of the decision of 15 July 1999 of Graeme Innes AM, a Commissioner of the Human Rights and Equal Opportunity Commission ("HREOC") must be allowed. The second respondent Natasha Lees complained to HREOC of alleged disability discrimination by AusAID when failing to proceed with its offer to her of a position in its Statistical Analysis and Research Section. 2 Ms Rees suffered from Occupational Overuse Syndrome. Nonetheless for the purposes of s 15(4)(a) of the Disability Discrimination Act 1992 (Cth) ("the DD Act") the Commission concluded she could have carried out the "inherent requirements" of the position in question if those requirements were as the Commissioner found them to be. It is agreed, correctly, both by the Commonwealth and Ms Rees that this conclusion as to Ms Rees' capacity is affected by a reviewable error. 3 In reliance upon (a) Ms Rees' evidence in chief, but in disregard of her contrary evidence in cross examination, and (b) the medical report of Dr Pahlow of 6 October 1995, but without reference to later medical reports of Ms Rees' then treating doctor, Dr Langsford - the Tribunal concluded that on 20 October, the date of AusAID's final decision withdrawing the promotion, Ms Rees was using and could use a computer keyboard for two hours a day. It is clear, though, on Dr Langsford's evidence (medical certificates were tendered) that she was, and had been certified to be, unfit for work. Ms Rees did not seek to disavow that evidence in cross examination. On the contrary. 4 The vice in the Commissioner's conclusion can be characterised in a number of ways for judicial review purposes. First, having taken Ms Rees' evidence in chief into account the Commissioner failed to take account of her evidence in cross examination which nullified the evidence in chief; secondly, the inference drawn from Dr Pahlow's report of 6 October as to her capacity later in October was one not open to be drawn in light of Dr Langsford's uncontroverted express and contrary evidence of her actual capacity at the relevant time; thirdly, in light of Dr Langford's evidence, the decision was so unreasonable that no reasonable person could have so decided; and fourthly, probably, the decision as to her capacity was based on the existence of a non-existent fact. 5 The Commissioner's decision must in consequence be set aside and the matter remitted to HREOC for further consideration. It is appropriate in the circumstances that HREOC be differently constituted for this purpose and I direct accordingly. 6 There is a number of additional matters to which I should make reference. The Commonwealth's amended application sought judicial review of the Commissioner's fact finding in quite some number of respects and on quite some number of grounds. I have felt it necessary to refer only to one such instance. By so doing I should not be taken as expressing any view adverse or otherwise to the remaining instances the subject of challenge. They will be matters for HREOC to reconsider and make findings on afresh. 7 Given the significant role that the evidence and fact finding have played in the application and will play on the reconsideration, I do not consider that a direction limiting the reconsideration to the evidence that was before the Commissioner would be appropriate. 8 The orders of the Court will be that the application be allowed, the decision of the first respondent dated 15 July 1999 be set aside and the matter be referred to HREOC, differently constituted, for reconsideration according to law. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 28 March 2000 Counsel for the Applicant: Mr T Howe Solicitor for the Applicant: Australian Government Solicitor The first respondent entered a submitting appearance only Counsel for the Second Respondent: Mr F J Purnell SC Solicitor for the Second Respondent: Welfare Rights and Legal Centre Ltd Date of Hearing: 27 March 2000 Date of Judgment: 28 March 2000