State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581

FEDERAL COURT OF AUSTRALIA

State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581 Appeal from: Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827

File number: NSD 866 of 2015

Judge: PERRY J

Date of judgment: 26 May 2017

Catchwords: HUMAN RIGHTS – direct discrimination - whether unlawful discrimination in employment on ground of a disability contrary to sections 5 and 15 Disability Discrimination Act 1992 (Cth) – whether failure by primary judge to identify appropriate comparator where matter not in issue at trial - whether failure to make reasonable adjustments for the aggrieved person contrary to section 5(2) –where employer did not allege at trial that making the adjustments would impose an unjustifiable hardship – where short-term return to work only put in place contrary to medical advice - whether defence in section 21A that aggrieved person unable to carry out the inherent requirements of the particular work established – where employer relied at trial upon generic documents to establish inherent requirements – whether discrimination of a nature covered by the section 21A defence – where failure by employer to comply with its policies subjected aggrieved person to a detriment and denied aggrieved person access to a benefit DAMAGES – where no issue raised at trial as to quantum of damages – whether assessment of damages tainted by erroneous finding of breach of implied term of trust and confidence in employment contract PRACTICE AND PROCEDURE - where issues raised for the first time on appeal– where prejudice to respondent – leave refused to raise new issues EVIDENCE –section 79, Evidence Act 1995 (Cth) - where medical reports annexed only to affidavits of other witnesses - observations on failure to provide medical reports in admissible form