James and Secretary, NSW Department of Communities and Justice [2022] NSWCATAD 280

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: James and Secretary, NSW Department of Communities and Justice [2022] NSWCATAD 280 Hearing dates: 28 and 29 October 2021, 1 November 2021 and 2 December 2021, last evidence received from respondent on 10 June 2022. Date of orders: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Dr M Murray, General Member Decision: 1. The respondent pay the applicant $35 000 by way of compensation for the non-economic loss or damage suffered by reason of the respondent's victimisation within 28 days of the order. 2. The respondent pay the applicant $819 gross by way of compensation for the economic loss or damage suffered by reason of the respondent's victimisation within 28 days of the order. 3. The respondent is enjoined from continuing or repeating any conduct rendered unlawful by this Act or the regulations against the applicant. 4. The respondent place the applicant into the Senior Services and Programs Officer role at Emu Plains within 28 days of receiving medical advice that she is fit to carry out the inherent requirements of the role. Catchwords: HUMAN RIGHTS - Victimisation – Detriment – Statutory Defence – Remedies – Orders pursuant to s108(2)(a)(b) and (c) – Damages arising out of found victimisation claim, appropriate award of damages for hurt feelings and psychological injury – Order enjoining the respondent from continuing or repeating unlawful conduct – Order to redress any loss or damage suffered by the complainant. Legislation Cited: Anti-Discrimination Act 1977 (NSW) Australian Human Rights and Commission Act (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Government Sector Employment Regulation 2014 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; 168 CLR 165 Bell v Aboriginal and Torres Strait Islander Commission & Ors [1994] EOC 92-565 Borg v Commissioner of Corrective Services & Anor [2002] NSWADT 42 Bradshaw v McEwans Pty Ltd [1951] HCA 480; 217 ALR 1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Burrows v Commissioner of Police [1995] EOC 92-676 Commissioner of Police, NSW Police Force v Butcher (EOD) [2011] NSWADTAP 9 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146 James v Department of Justice, Corrective Services NSW [2017] NSWCATAD 238 James v Department of Justice (Corrective Services NSW) [2020] NSWCATAD 17 James v Department of Justice (Corrective Services NSW) [2021] NSWCATAP 118 James v Department of Justice (Corrective Services NSW) [2022] NSWCATAP 49 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kostas v HIA Insurance Services Pty Ltd [2010] HCA (2010); 241 CLR 390; 84 ALJR 663; Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12 Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP Pochi v Minister for Immigration & Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCA 537 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sunil v Burns [2015] NSWCATAP 207 Sutherland v Tallong Park Association Incorporated (No 2) [2006] NSWADT 287 Tsikos v Austin Health [2022] VSC 174 Walsh v Hunter New England Local Health District [2020] NSWCATAD 134 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Yelda v Sydney Water Corporation & Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 Texts Cited: Forbes J R S Justice in Tribunals 5th ed The Federation Press 2019 Category: Principal judgment Parties: Rita James (Applicant) NSW Department of Communities and Justice (Respondent) Representation: Counsel: Mahendra D (Respondent)