Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15 Hearing dates: 3 February 2012 Decision date: 07 May 2012 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President R Perrignon, Judicial Member J Newman, Non-Judicial Member Decision: 1. The Tribunal's first order, that: The complaint of unlawful discrimination on the ground of disability is substantiated. is affirmed. 2. The Tribunal's second order that: The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. is set aside. 3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005. 4. In substitution for the Tribunal's second order, the following order is made: The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days. Catchwords: APPEAL - disability discrimination in work - whether Tribunal breached procedural fairness in selecting a single comparator when several were put forward - identification of the circumstances in which a comparison should be made for the purposes of the differential treatment element of direct discrimination - onus of proof and the drawing of inferences in discrimination complaints - calculation of economic loss Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Building Professionals Board v Ball [2008] NSWADTAP 70 Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Fenwick v Beveridge Building Products Pty Ltd (1985) 62 ALR 275 Purvis v State of New South Wales (2003) 217 CLR Texts Cited: Williams CR, "Burdens and Standards in Civil Litigation" (2003) Sydney Law Review 9 Category: Principal judgment Parties: Deerubbin Local Aboriginal Land Council (Appellant) Mr D Hunter (Respondent) Representation: Counsel K Eastman (Appellant) M Tibbey (Respondent) Chalk & Fitzgerald (Appellant) Legal Aid NSW (Respondent) File Number(s): 119044 Decision under appeal Citation: Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202 Date of Decision: 2011-08-24 00:00:00 Before: Equal Opportunity Division File Number(s): 081053