Elliott v Nanda & Commonwealth [2001] FCA 418

FEDERAL COURT OF AUSTRALIA

Elliott v Nanda & Commonwealth [2001] FCA 418

HUMAN RIGHTS – sex discrimination – sexual harassment – whether sexual harassment may constitute sex discrimination – applicant employed as medical receptionist/secretary at doctor's surgery – claim against doctor HUMAN RIGHTS – sex discrimination – enforcement of determination by Human Rights and Equal Opportunity Commission ("HREOC") – hearing de novo – whether scope of application to Federal Court is limited by determination of HREOC HUMAN RIGHTS – sex discrimination – employment agency – Commonwealth Employment Service ("CES") – whether CES "permitted" sex discrimination against applicant by doctor – where CES referred applicant to doctor for employment – where CES had earlier received complaints from several women about sexual harassment by doctor at previous surgery HUMAN RIGHTS – sex discrimination – compensation – damages – whether Federal Court bound by quantum of damages awarded by HREOC – aggravated damages – where doctor did not appear at inquiry before HREOC WORDS AND PHRASES – "permit"

Sex Discrimination Act 1984 (Cth) ss 5, 14, 22, 26, 28A, 28B, 83A, 105 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 referred to Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 referred to Aldridge v Booth (1988) 80 ALR 1 applied D'Antuono v Minister of Health (1997) 80 FCR 226 referred to O'Callaghan v Loder [1983] 3 NSWLR 89 applied Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217 considered Gilroy v Angelov [2000] FCA 1775 considered Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 considered Adelaide City Corporation v Australasian Performing Rights Association Ltd (1928) 40 CLR 481 referred to Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350 referred to Young v Australian Workers' Union (1974) 5 ALR 347 referred to Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 applied Re Chisum Services Pty Ltd (1982) 7 ACLR 641 referred to Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133 referred to Triggell v Pheeney (1951) 82 CLR 497 referred to Coyne v Citizen Finance Limited (1991) 172 CLR 211 referred to Whittle v Paulette (1994) EOC 92-621 referred to Greenhalgh v National Australia Bank Ltd (1997) EOC 92-884 referred to McIntyre v Tully (1999) 90 IR 9 referred to John v M G N Ltd [1997] QB 586 referred to Spautz v Butterworth (1996) 41 NSWLR 1 referred to Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 referred to LEANNE ELLIOTT v PREM NANDA AND COMMONWEALTH OF AUSTRALIA N 720 OF 1999 LEANNE ELLIOTT v COMMONWEALTH OF AUSTRALIA N 478 OF 2000 MOORE J 11 APRIL 2001 SYDNEY