Qantas Airways Limited v Gama [2008] FCAFC 69 (2 May 2008)

Last Updated: 6 May 2008

FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Gama [2008] FCAFC 69

HUMAN RIGHTS – race and disability discrimination in employment - approach to fact finding - inferences - whether adverse inferences not adequately based in evidence - whether reversal of onus of proof - whether inappropriate application of Briginshaw test - disability discrimination - whether relevant disability identified - damages assessment - whether error in principle - whether tortious measure appropriate - compensatory character of damages - appeal allowed in part for failure to identify disability - appeal otherwise dismissed - cross-appeal dismissed


Disability Discrimination Act 1992 (Cth) s 15(2)(d)
Federal Court of Australia Act 1976 (Cth) s 51A
Federal Magistrates Act 1999 (Cth) s 76
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46P
Judiciary Act 1903 (Cth) s 79
Limitation Act 1969 (NSW) s 14(1)
Racial Discrimination Act 1975 (Cth) s 9, s 18A

International Convention on the Elimination of all forms of Racial Discrimination Art 5

Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 cited
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 cited
Brown v Dunn (1893) 6 R 67 cited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 cited
Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352
Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 cited
Gama v Qantas Airways Ltd (No 1) [2006] FMCA 11 cited
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 cited
Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 cited
Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618 cited
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 cited
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 cited
Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 cited
Sharma v Legal Aid Queensland (2001) 112 IR 124 cited
State of Victoria v McKenna [1999] VSC 310 cited
Victoria v Macedonian Teachers Association of Victoria Inc [1999] FCA 1287; (1999) 56 ALD 333 cited
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349


QANTAS AIRWAYS LIMITED v WILLIAM GAMA
NSD 2539 OF 2006

FRENCH, BRANSON AND JACOBSON JJ
2 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2539 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QANTAS AIRWAYS LIMITED Appellant
AND:	WILLIAM GAMA Respondent

JUDGES:	FRENCH, BRANSON AND JACOBSON JJ
DATE OF ORDER:	2 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The order made by the Federal Magistrates Court on 8 December 2006 be varied by deleting the words "and s 15(2)(d) of the Disability Discrimination Act 1992".

2. The appeal be otherwise dismissed.

3. The appellant pay two thirds of the respondent’s costs of the appeal.

4. The cross-appeal be dismissed.

5. The cross-appellant pay the cross-respondent’s costs of the appeal.

6. Any party wishing to seek any costs order in relation to the intervention of the Human Rights and Equal Opportunity Commission (HREOC) to file and serve written submissions within 14 days. HREOC to file and serve submissions in reply 14 days thereafter.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2539 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QANTAS AIRWAYS LIMITED Appellant
AND:	WILLIAM GAMA Respondent

JUDGES:	FRENCH, BRANSON AND JACOBSON JJ
DATE:	2 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

FRENCH AND JACOBSON JJ
Introduction

1 On 8 December 2006 the Federal Magistrates Court ordered Qantas Airways Limited (Qantas) to pay William Charles Gama, a former employee, $71,692.70 as damages, including interest, for breach of s 9 of the Racial Discrimination Act 1975 (Cth) and s 15(2)(d) of the Disability Discrimination Act 1992 (Cth).

2 The complaint of discrimination which led to the making of those orders has a long history, having been made originally to the Human Rights and Equal Opportunity Commission (HREOC) and having arisen out of events going back to 1998.

3 A complaint was made to HREOC by Mr Gama on 18 July 2003 and terminated by HREOC on 16 March 2004. Mr Gama then commenced proceedings in the Federal Court which were remitted to the Federal Magistrates Court. A trial of his application took place for several days in February, June and September 2006. Judgment was delivered on 8 December 2006. The learned magistrate found in Mr Gama’s favour that certain racially discriminatory remarks had been directed to him in the course of his employment at Qantas and constituted unlawful conduct under the Racial Discrimination Act. The Court also found that certain of these remarks constituted discrimination under the Disability Discrimination Act. Many other complaints were rejected.

4 In the event, the Federal Magistrates Court found that the discriminatory conduct made out had been a contributing factor to the development of a significant depressive illness by Mr Gama. The Federal Magistrate awarded him a total of $71,692.70 by way of general damages, medical expenses and interest. Qantas has appealed against that decision and Mr Gama has cross-appealed.

5 In our opinion, for the reasons that follow, the appeal should be allowed in respect of the disability discrimination findings. However, as essentially the same events underpinned the findings of racial discrimination, we will not disturb the damages order made by his Honour.

6 The cross-appeal will be dismissed.
Factual and procedural background

7 William Gama was born at Goa in India. Goa is a former colony of Portugal and Mr Gama describes himself as a thirteenth generation Portuguese. Prior to 1984 he worked for British Airways in England as a licensed aircraft maintenance engineer. In 1982 he and his wife and two children emigrated to Australia in the expectation that he would secure employment with Qantas. This expectation was evidently generated by discussions he had had with representatives of Qantas in England in 1982. When he arrived in Australia Qantas was not able to offer him a position immediately. Nevertheless, he decided to remain and found different work. In 1984 Qantas offered Mr Gama a position. He accepted the offer and worked for Qantas until 2002. He was employed as a licensed aircraft maintenance engineer.

8 Mr Gama claims to have been the subject of racial taunts and other forms of discrimination at work. In July 1992 he was injured when he fell into a gap between the right main door of an aircraft he was servicing and the adjacent docking. He submitted a worker’s compensation claim. He claimed to have suffered lacerations and bruising to his left knee cap and right elbow and bilateral epicondylitis as a sequel of the accident. With these and subsequent injuries and claimed disabilities, difficulties developed in relationships between Mr Gama and some other employees of Qantas. He said that a supervisor, Mr Peter Hulskamp (also spelt Hulscamp in some of the papers in the appeal book) accused him of manipulating the system and told him that Qantas would not provide light duties for ‘normal sick people’. He claimed that his supervisor refused to accept his sick leave applications and was rude to him.

9 Mr Gama was diagnosed with a bilateral hernia late in September 1998 and underwent repair surgery on 19 November 1998. In December 1998 he made a worker’s claim in respect of the hernia and requested light duties. Liability was accepted in January 1999 but further liability denied after April of that year. Mr Gama commenced proceedings in the Compensation Court of New South Wales in June 1999.

10 Mr Gama sustained another injury in April 2000 when he tripped on a towbar. In August 2000 and February 2001 Qantas requested written reports from his treating doctor. In May 2001 Qantas advised him that it had been over nine months since the commencement of his rehabilitation program and that most recent medical assessments indicated that it was unlikely that he would be able to return to his position as a licensed aircraft maintenance engineer. Qantas advised that Mr Gama could either apply for medical termination or attempt to obtain permanent redeployment within Qantas over a period of three months until 31 August 2001.

11 In June 2001, Mr Gama’s union, the ALAEA, informed Qantas that there was no medical evidence to suggest that Mr Gama would not be able to return to suitable duties as a licensed aircraft maintenance engineer in the future and that it was his intention to continue his rehabilitation. In August 2001 Mr Gama’s orthopaedic surgeon, Dr Viglionie, cleared him to return to full duties from 23 August 2001. However on 9 November 2001 Dr Stevenson, a doctor engaged by Qantas, assessed that Mr Gama was not fully fit for pre-injury duties.

12 In January 2002 Dr Viglionie told Qantas that Mr Gama was unfit for certain work practices, including lifting at or above breast height or to that level and the heavy use of a hammer. Dr Viglione advised that Mr Gama was ‘probably not going to improve on what he is at the present time’.

13 Qantas advised Mr Gama by memorandum on 30 January 2002 that over 16 months had passed since the commencement of his rehabilitation program and that most recent medical assessments indicated that he was not capable of returning to his position as a licensed aircraft maintenance engineer. It advised him that he could apply for medical termination or seek permanent redeployment to a position that could accommodate his restricted functional capacity within a three month period until 30 April 2002. ALAEA told Qantas on 19 February 2002 that there was no medical evidence to suggest that Mr Gama would not be able to return to suitable duties as a licensed aircraft maintenance engineer.

14 In March/April 2002 Mr Gama applied for a number of positions within Qantas. He was not successful. Negotiations then ensued between him, Qantas and ALAEA about whether he should be terminated or was fit for pre-injury duties. A hearing took place in the Australian Industrial Relations Commission (AIRC) in May 2002 at which time the parties agreed to defer the termination date pending further assessment of his ability to perform his duties as a licensed aircraft maintenance engineer.

15 In May 2002 WorkRight, an occupational rehabilitation service, assessed the duties of a licensed aircraft maintenance engineer with a view to determining whether Mr Gama would be able to return to those duties. In the same month Mr Gama provided Qantas with a medical certificate to the effect that he was unfit for duties between 20 May and 20 June 2002 because of depression.

16 On 20 September 2002 Qantas received a letter from Dr Vigilionie stating that Mr Gama would not be able to fulfil the overhead lifting part of his work duties. On 25 October 2002 Qantas advised Mr Gama that the medical assessments conducted on 13 August 2002 and Dr Viglionie’s subsequent report indicated that he would not be able to return to pre-injury duties. His employment was then terminated. ALAEA sought to have the dispute about the termination relisted in the AIRC. Subsequently, it lodged an unfair dismissal claim in the AIRC.

17 On 27 July 2003 Mr Gama lodged a complaint against Qantas with HREOC. The President of HREOC terminated the complaint on 16 March 2004. On 23 March 2004 Mr Gama and Qantas settled his unfair dismissal claim. On 29 March 2004 Mr Gama filed an application in the Federal Court of Australia in relation to his terminated complaint to HREOC. Following a number of directions hearings the application was transferred to the Federal Magistrates Court on 26 April 2005. On 7 July 2005 Raphael FM set the matter down for hearing for two days on 14 and 15 February 2006.

18 Mr Gama filed points of claim and Qantas filed a defence. On 22 December 2005 there was an interlocutory hearing before Raphael FM relating to the proper temporal scope of the application having regard to the period covered by the complaint to HREOC. In a decision delivered on 16 January 2006 his Honour held that Mr Gama could not pursue before him complaints of incidents which occurred before 1998 and which did not form part of the original complaint to HREOC. He also said that if he were in error on that point, the pre-1998 matters were ‘statute barred’ and had the Limitation Act 1969 (NSW) been pleaded in the points of defence he could have summarily dismissed them. Nothing that we say in this judgment should be taken as agreeing with his Honour’s opinion about the application of the Limitation Act 1969 (NSW).

19 Mr Gama filed amended points of claim on 30 January 2006. The hearing proceeded before Raphael FM on four days over February, June and September 2006. His Honour delivered his judgment on 8 December 2006. He found three allegations of race discrimination made out based on remarks made to Mr Gama at work by his supervisor, Mr Hulskamp. He also found three allegations of discrimination under the Disability Discrimination Act were established. His Honour ordered that Qantas pay Mr Gama $71,692.70 by way of damages, including interest, for breaches of s 9 of the Racial Discrimination Act and s 15(2)(d) of the Disability Discrimination Act. Qantas lodged an appeal against the decision on 28 December 2006. Mr Gama filed a notice of contention and a cross appeal.

20 On 14 August 2007 Mr Gama filed an application for an extension of time to file and serve a notice of appeal against the interlocutory judgment delivered by Raphael FM on 16 January 2006. On the hearing of the appeal that application was refused, however the Court informed Mr Gama that it would be prepared to allow him a limited amendment of his notice of cross-appeal to raise, as a single ground, the contention that the learned magistrate had erred in determining that in his points of claim in the Federal Magistrates Court he had raised matters which were not the subject of the complaint terminated by the President of HREOC. His application for leave to appeal out of time against the interlocutory judgment was dismissed. A further motion to adduce additional evidence was also dismissed.

21 On 7 November 2007 Mr Gama filed an affidavit attaching an amended notice of cross-appeal in which he stated under the heading ‘GROUNDS OF CROSS APPEAL’:

I had never intended in a sane frame of mind to indicate in HR and EOC application that I was complaining of any other period than the whole of my employement with Qantas ie 1981 to Oct 2002. Yes the full force and open discriminations to me was from 1998 to Oct 2002. [sic]

22 On 14 June 2007 HREOC filed a notice of motion seeking leave to intervene in these proceedings. It sought to make written and oral submissions about the interpretation and application of the Racial Discrimination Act and the Disability Discrimination Act. At the hearing of the appeal on 17 September 2007, the Court gave HREOC leave to intervene in the appeal and to make written submissions in the form filed in Court on 6 and 12 September 2007 provided that the intervenor would not be heard on a Limitation Act point which it sought to raise. HREOC was also granted leave to make further oral submissions at the hearing of the appeal directed to matters raised in its written submissions and/or as otherwise permitted by the Court. It was a condition of the intervention that HREOC not seek any costs against any other party. The question whether any other party could seek costs against HREOC was reserved.
The complaint to HREOC - 18 July 2003

23 Mr Gama’s complaint to HREOC was dated 18 July 2003. In Pt B of the complaint form he stated that he was complaining about Mr John Clerke and Mr Peter Hulskamp of Qantas. He described Mr Clerke as a manager and Mr Hulskamp as his assistant. He claimed to have been subject to discrimination because of his race and because he had a disability. He also claimed to have been treated unfairly for another reason, the stated reason being:

Speaking the truth openly and being black makes it more annoying to Anglo Saxons.

In answer to the question on the form ‘When did this happen?’, he wrote:

FROM 1998 to date AND CONTINUING

He was asked ‘What happened to you?’ and wrote:

I am enclosing discrimination facts given to AIRC but was told (agreed) that, it was not the place. I also was asked not to include race discrimination then. ‘NOW I AM’. But it did happen and it was the focal point of the whole incident of a "black" man voicing out when he should be grateful of what he’s got. Years of discrimination started to eat me when it was not changing for the better. Qantas as I described the place to CEO Mr Dixon is like a Nazi concentration camp for jews.* [sic]

I do not think that, all the writing in the world will or may convince your organisation to take up my case (I feel) but I will persist to the end. I need a few hours of face to face meeting for you to get a clear picture. Or you so quickly and easily reject my complaint.

An asterisk against the reference to the ‘Nazi concentration camp’ referred to a handwritten footnote in which he said:

John Clerke Referring me (by name) at Engineers meetings as Compo Cheat – "Seek William Gama’s help, he knows to get the best of W Comp." John Clerke accompanied by Vicki Collins HR at staff canteen and around heaps of my colleagues commented (towards end of my employ) "We are working hard to get you terminate". [sic]

24 In Pt C of the form Mr Gama stated that he had suffered major depression because of what had happened. Under the heading ‘Complaints to other agencies’ he was asked the question:

Have you made a complaint to another agent (eg state Anti Discrimination Board or Equal Opportunity Commission)? If so, please give details of the complaint and any outcome to date.

He responded to this question by saying:

Only contacted above the same time as you.

25 A number of documents accompanied the complaint. Two of them were letters written by Mr Gama to Mr G Dixon, the Chief Executive Officer of Qantas. They were dated 30 October 2002 and 20 May 2003. A copy of a circular letter, apparently directed to journalists, was included. Mr Gama’s written statement to AIRC was also attached. It set out his work history and the history of his employment with Qantas from 1984 and various allegations relating to injuries he had sustained and remarks made to him in the course of that employment after 1992. It appears that Mr Gama also provided HREOC with an unaddressed letter dated 27 July 2003 headed ‘DISCRIMINATION AND HARASSMENT AT WORK’. A copy of this letter was attached to the notice of termination to which reference is made below. In the letter Mr Gama said that harassment started at work in earnest in 2002. There was no talk of redeployment but of termination. Mr Hulskamp required that he present himself at 8 o’clock every day, Monday to Friday, in his office. No other person on workers compensation was asked to do that.

26 He received daily calls from John Clerke and/or Vickie Collins to attend an important meeting about his termination. It was a weekly pursuit to have John Clerke sign his attendance form so that he could get paid. Every application by him for alternative positions was to be shown to John Clerke to be signed with a comment by him and posted. The return address was always incorrect and the replies went to departments with whom Mr Gama had no connection. He also alleged that Mr Hulskamp gave him to understand that he was complaining too much with a view to avoiding doing his job. He added:

He very closely had race in mind. His referring to me in front of my colleagues as "a Bombay taxi driver" only to be told by a colleague that my accent would give me away and that I was brought by Qantas from British Airways, Is this not clear racial abuse, then I don’t know what is. [sic]

He also complained that he was never given a ‘stand in’ or ‘acting position’ in a permanent job. Persons chosen over him were 95% Anglo Saxons/Celtic and white Australian.

Termination of the complaint by HREOC – 16 March 2004

27 On 16 March 2004, a delegate of the President of HREOC signed a notice of termination which was in the following terms:

NOTICE of TERMINATION

Issued pursuant to s 46PH(2) of the Human Rights & Equal Opportunity Commission Act 1986 (Cth) ("the HREOCA")

The complaint of racial and disability harassment and discrimination has been terminated pursuant to section 46PH(1)(i) of the HREOCA on the ground that I am satisfied there is no reasonable prospect of the matter being settled by conciliation.

Full reasons for this decision are outlined in Attachment A.

A coy of the original complaint is provided at Attachment B.

DATED this 16 day of March 2004.

28 In a letter to Mr Gama dated 16 March 2004 which accompanied the termination notice the delegate stated, under the heading ‘Summary of Complaint’:

In a letter of complaint dated 27 July 2003, you state that you were employed by Qantas in February 1984 as an Aircraft Mechanic Engineer and that during your employment, you were off work on workers’ compensation on a number of occasions due to work-related injuries that you sustained in 1992, 1995, 1998 and 2000. You allege that because you are "black" and have a disability due to work-related injuries, you were subjected to harassment and discrimination by your colleagues and supervisors since 1998 and that your employment was terminated by Qantas on 25 October 2002. You advised that you only wish to complain about incidents that took place from 1998 onwards.

The letter then set out the allegations said to have been raised by Mr Gama as follows:

May 1998 . That while waiting for an airplane to be brought into a hangar, Mr Chris Dowsell told you "I am trying to think who you look like" and Mr Peter Hulskamp, Foreman of Heavy Maintenance Line 2, responded by saying "Like a Bombay taxi driver". You claim the remarks were made because of the colour of your skin.

September

1998 . That because of your disability, your action when climbing steps was laughed at by your fellow workers and some yelled out adverse remarks at you.

November

1988 . That you were admitted to hospital and had an operation because of your work-related injuries but Qantas did not pay for the cost of the operation and your wages were not paid during the period of hospitalisation.

23 January . That Mr Hulskamp accused you of knowingly trying to

1999 "manipulate" the system and said to you that "Qantas does not provide light duties for normal, sick people" even though Mr Hulskamp was aware about your work-related injuries.

. That on many occasions, Mr Hulskamp refused to accept your sick leave applications, declined to submit your workers’ compensation claim forms and was rude to you.

March 1999 . That Mr Don Drake, Co-Ordinator for Line1&2 Heavy Maintenance, showed you an internal memo prepared by Mr Hulskamp and sent to all Co-Ordinators and Managers to advise that your injuries and pain were in your "head". Mr Hulskamp also allegedly advised in the Memo that any claims of pain should be treated with suspicion and that any applications for sick leave submitted by you should not be accepted and be referred to him.

. That Ms Yvette Heipher, Rehabilitation Co-Ordinator, confirmed with you during a telephone conversation that she was directed to raise that Memo even though it was not her idea.

Incidents in . That Mr Hulskamp required you to present

2002 yourself in his office at 8.00am every day from Monday to Friday and that he would phone to look for you "all over the place" if there was a delay in your work whilst other workers on workers’ compensation were not subjected to such treatment.

. That Mr John Clerke, Workshop Manager, and Ms Vicki Collins called you by telephone two or three times on a daily basis to check on you and to request you to attend meetings about the termination of your employment and then they failed keep the appointments.

. That prior to the termination of your employment with Qantas, Mr Clerke and Ms Collins loudly told you "We are working on your termination date" in the presence of your colleagues whilst the parties met in the Canteen during a lunch break.

. That because Mr Clerke personally wanted to sign your attendance forms, you did not receive payment when Mr Clerke was overseas. You claim that no other workers were under such arrangements.

. That during a meeting attended by Qantas engineers, Mr Clerke referred to you as a "Compo cheat" and told other engineers to "Seek William Gama’s help, he knows to get the best of workers’ comp".

. That you were not offered job interviews even though you applied for several internal alternative positions within Qantas because mails from Qantas in reply to your applications were directed to the wrong departments within Qantas which had no connection with you. In addition, Mr Clerke and Mr Hulskamp issued a memorandum to all Managers advising that you were said to be "frauding the company" by using workers’ compensation and that your applications were not to be accepted.

. That you were not given the opportunity to "stand in" or act in permanent positions whilst other "Anglo/White Australians" were.

Originating proceedings in the Federal Court

29 Mr Gama’s proceedings in this Court commenced with the filing of an application in the form provided by the Federal Court Rules (O 81, r 5, Form 167). Asked in the form to describe the discrimination of which he complained, he wrote "Please find original complaint to HREOC". He identified the remedy he sought as "Compensation".

30 Mr Gama filed points of claim on 4 August 2005. He alleged that he had experienced circumstances and acts amounting to unlawful discrimination on the grounds of race in the course of his employment with Qantas "and in particular from 1998 to his termination in 2002". He cited "racist comments from managers and colleagues". He claimed that, during the period of his employment, the words "Black Willie" were written on the wall behind moveable objects in the bathroom. Workers would hold up a copy of a black piece of paper and say "Willy here is your photograph ... what a strong resemblance". He had asked about the possibility of promotion and was told "We are not ready to have a black in management". He was described by his supervisor, Mr Hulskamp in 1998 as looking like a "Bombay taxi driver". In September 1998 some colleagues and management jeered and mocked him when he was walking with difficulty up some stairs saying "Being black, you should be walking up the stairs like a monkey". He also alleged that from January 1998 when he began reporting to Mr Hulskamp he was the subject of discrimination on the grounds of race in terms of reporting requirements and general treatment with respect to sick leave and work attendance.

31 Mr Gama alleged that Qantas discriminated against him by refusing and/or failing to offer him the same conditions of work and opportunities for training and promotion as were made available to other employees. During his period of employment he was never given a promotion. Nor, despite many requests, was he ever given any opportunity of giving any further training. He alleged that, pursuant to s 18A of the Racial Discrimination Act, Qantas was vicariously liable for breaches under the Act committed by its employees.

32 The points of claim asserted contraventions of ss 5 and 15 of the Disability Discrimination Act on the basis that, after January 1998, Mr Gama was denied access to opportunities for promotion, transfer or training. He claimed that several times between May 2001 and July 2002 he was advised by Qantas’ rehabilitation coordinator that she had been told by John Clerke and Vickie Collins "not to assist you in finding jobs which are suitable for your disability". He alleged that Qantas had failed to take reasonable precautions and exercise due diligence to avoid the conduct of its employees (s 123).
The magistrate’s interlocutory judgment – 16 January 2006

33 Qantas applied to strike out two types of allegations in Mr Gama’s points of claim. The first covered matters which occurred before 1998. The second covered matters which it was said did not arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.

34 In relation to pre-1998 matters, counsel for Qantas submitted to his Honour that they had not been the subject of the terminated complaint. This was said to be clear from letters accompanying the notice of termination. As a fallback position Qantas argued that anything pre-1998 was, in any event, subject to s 14(1) of the Limitation Act 1969 (NSW) applied by operation of s 79 of the Judiciary Act 1903 (Cth).

35 His Honour referred to the original complaint to HREOC which included letters from Mr Gama to the CEO of Qantas and the statement used for proceedings before the AIRC. He acknowledged that reference was made to matters which occurred prior to 1998. Counsel for Mr Gama had suggested that it would be misleading to look at complaints which occurred in the last few years of his employment in isolation from events which occurred throughout his employment.

36 Counsel for Qantas had conceded that the history of Mr Gama’s employment with Qantas might have historical relevance but argued that Qantas should not be required to respond to allegations of events before 1998 as complaints which might sound in damages. His Honour agreed that events which might have occurred pre-1998 could put post-1998 events in context. This, however, did not make the pre-1998 matters capable of constituting complaints in their own right. His Honour said:

I accept that the pre-1998 incidents did not form part of the applicant’s original complaint and that they were not considered by HREOC. For that reason they cannot constitute "terminated complaints". I would also find that if I was in error in the above that the pre-1998 matters were statute barred and if the Limitation Act (NSW) had been pleaded in the points of defence I could have summarily dismissed them.

His Honour indicated the paragraphs in the points of claim relating to events which took place prior to 1998 which, in accordance with his ruling, should be deleted.

37 As to the second class of allegations attacked by Qantas in the interlocutory proceedings, his Honour struck out some of the points of claim. He ordered that Mr Gama file and serve amended points of claim within 14 days to give effect to his reasons. Amended points of claim were filed on 30 January 2006.
The magistrate’s reasons for final judgment – 8 December 2006

38 After setting out some of the background to the complaints made by Mr Gama his Honour set out his approach to the onus and standard of proof necessary to establish discrimination. He discussed the standard of proof in civil proceedings where serious allegations of misconduct are made. He referred to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and what he called the "Briginshaw test". He cited Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 in which the Full Court, in a case involving alleged breaches of the Racial Discrimination Act, noted that it had been common ground at first instance that the standard of proof in such cases was the higher standard referred to in Briginshaw [1938] HCA 34; 60 CLR 336. In Sharma 115 IR 91 at [40], a passage which his Honour quoted at [13], the Court said:

Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature.

His Honour noted that Briginshaw [1938] HCA 34; 60 CLR 336 had not been applied in every matter of racial discrimination and referred to Victoria v Macedonian Teachers Association of Victoria Inc [1999] FCA 1287; (1999) 56 ALD 333. He also observed that there is no need to establish whether a respondent had an intention to discriminate on the grounds of race or disability. He referred to Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 and Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [19] – [23]. He does not appear to have drawn from his discussion of the law any particular conclusions.

39 His Honour then undertook extensive consideration of the evidence. His findings of fact, made in the course of his consideration of the evidence, may be extracted as follows:

1. At times throughout the period of Mr Gama’s employment with Qantas some racial graffiti appeared in the Qantas workplace - ([25]).

2. No finding could be made that Mr Gama had been shown a black sheet of paper and the words "Willie, here is your photograph, what a strong resemblance" said - ([26]).

3. Mr Gama’s complaint that a colleague, Mr Simpson or a Mr Talentire, said to him in September 1998 while he was walking painfully up a flight of stairs, "Being black you should be walking up the stairs like a monkey" was denied by Mr Simpson in his affidavit. Mr Simpson’s denial was not challenged in cross-examination - ([28]).

4. Evidence was given, from which an inference could be drawn, that there were at times discriminatory remarks made by Mr Gama’s co-workers in relation to his race. Beyond that statement however his Honour made no specific finding of fact in relation to such discriminatory remarks - ([29]).

5. Mr Hulskamp’s affidavit evidence in which he denied receiving from Mr Gama any applications for appointment to internal positions or for promotions and his denial that it was his responsibility to accept or approve job applications of that kind were unchallenged by Mr Gama - ([30]).

6. The evidence of a witness, Mr Bluestone, that Mr Gama was given an interview in April 2002 for a position of technical officer but did not attend the scheduled interview was not challenged by Mr Gama despite his assertion that he was never granted an interview - ([30]).

7. Mr Gama was not nominated for training courses – this was accepted by Qantas - ([34]).

8. Proper procedures were in place and were followed in accordance with the various Qantas policies including policies entitled "Developing People at Qantas" covering development and training, professional qualification and education assistance, the "Transfer and Promotions Policy" and the "Recruitment and Selection Policy" - ([34]).

9. There was a set procedure by which employees were allocated to training courses which resulted in Mr Gama not being considered suitable for courses when they arose - ([34]).

10. A detailed explanation was never given to Mr Gama nor assistance provided to him as someone who was clearly anxious to progress - ([34]).

11. There was no evidence from which the Court could infer that the failure to provide explanation or assistance arose out of consideration of Mr Gama’s race or disabilities - ([34]).

12. Mr Gama suffered industrial injuries in 1992 and 1995.

13. When Mr Gama returned to work in heavy maintenance lines, Mr Hulskamp had been appointed as supervisor.

14. Mr Gama worked on the heavy maintenance lines until 19 November 1998 when a bilateral hernia diagnosed in late September 1998 was surgically repaired - ([37]).

15. On 8 September 1998 Mr Gama tripped and injured his shoulder, taking some weeks off work - ([37]).

16. Following submission of a medical certificate and a worker’s compensation claim, he received payment for wages while off work - ([37]).

17. Mr Gama returned to work on 26 December 1998 with a medical certificate restricting him from heavy work - ([37]).

18. In January 1999 Mr Gama’s hernia scar started to bleed and he was given further time off work and lodged worker’s compensation claim forms - ([37]).

19. Qantas received a report from Dr John Davis advising that Mr Gama would be able to return to work but that he had to avoid heavy lifting - ([37]).

20. On 23 January 1999 Mr Gama was present at a meeting of engineer’s on his shift at which Mr Hulskamp referred to problems with the completion of workers compensation claim forms and said words to the effect "Ask Willy, he is used to filling in compo forms" - ([38]).

It is not clear whether in making this finding the learned magistrate was also finding that Mr Hulskamp made a more elaborate statement attributed to him by Mr Gama, namely:

Here is a man who knows how to manipulate the system, double dipping on sick leave and workers comp, Qantas does not provide light duties for normal sick people.

21. Mr Gama accepted that between March 1999 and 2002 he was not working on full duties and that he was without incident during that time. He had surgery on his right shoulder in 2000 and returned to work in March 2001 on light duties - ([40]).

22. Thereafter there was a pattern of Qantas seeking to discover whether or not Mr Gama would ever be able to return to his full duties - ([41]).

23. A rehabilitation program put in place by Qantas provided Mr Gama with light duties and there was the opportunity for him to seek a transfer to another less physically demanding position - ([41]).

24. In March and April 2002 Mr Gama applied for a number of other positions in Qantas and was not accepted for any of them.

25. Mr Gama was required to report daily to Mr Hulskamp but the Court was not satisfied that this was causally connected to his disability or race - ([42]).

26. Mr Hulskamp’s evidence was that Mr Gama was required to report to him each morning in order for light duties to be assigned and this evidence was unchallenged - ([41]).

27. There was no admission made or evidence which would allow the Court to infer that Mr Gama was treated adversely or discriminated against by Mr Clerke in relation to the availability of redeployment within Qantas - ([45]).

28. Around April 2002 Mr Gama began to show symptoms of depression - ([60]).

40 His Honour reviewed documentary and medical evidence given in the case. He was particularly impressed by the evidence of Mr Gama’s treating psychiatrist, Dr Wendy Orlay. He referred to her view that Mr Gama’s depressed condition was "... more likely to have been caused by the matters about which he complained in the workplace than his complaints being a perception resulting from his depression" (at [60]). He quoted, with evident approval, a statement made by Dr Orlay in a report (at [60]):

Mr Gama became ill during a time at which he reported being repeatedly discriminated against on the grounds of his race. This theme dominated every session of his therapy with me for many months and still does to some extent. In my view the nature and timing of his symptoms suggest the symptoms were likely to have been directly triggered by the discriminatory acts.

41 His ultimate findings of fact made after consideration of the evidence can be summarised as follows:

1. He was not prepared to infer that Mr Gama was denied promotion for reasons which included his colour - ([73]).

2. The positions for which Mr Gama applied after 1998 were within the framework of the redeployment program by which Qantas allowed people who might not be able to return to their pre-injury employment to apply for other suitable employment within the organisation. These did not, in his Honour’s view, come under the general heading of "promotion" as read in the context of [7(iii)] of the points of claim - ([74]).

3. Mr Hulskamp said of Mr Gama in front of his co-workers that he looked "like a Bombay taxi driver". The making of the remark in front of a group of colleagues, as described in Mr Gama’s evidence, was an act reasonably likely in all the circumstances to offend, insult or humiliate Mr Gama and was done because of his race, colour or national or ethnic origin - ([75]).

4. At some time after 1998 as Mr Gama was walking up some stairs Mr Talentire, a fellow employee, made the comment that he should be walking up the stairs like a monkey. Mr Hulskamp did not intervene - ([76] and [101]).

5. The remark clearly comprised a distinction based on race. It distinguished Mr Gama from other workers present at the time. It was based on his race or colour. It impaired his enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from workmates - ([77]). The remark was also made because of Mr Gama’s disability – ([101]). It was condoned by Qantas management in the form of Mr Hulskamp.

6. Mr Hulskamp, who was the senior employee present, condoned the making of the remark in a way which would place liability on Qantas pursuant to s 18A - ([78]).

7. The imposition of a requirement that Mr Gama give sickness application forms directly to Mr Hulskamp did not establish discrimination - ([80]).

8. A statement attributed to Mr Hulskamp by Mr Gama to the effect that:

You only have to stand up to me once. Take this as your first warning.

was not shown to have been made "by reference to" Mr Gama’s race, even assuming it was made - ([81]).

9. Mr Hulskamp made a remark in front of Mr Gama’s co-workers that they should ask him how to fill in workers compensation forms as he had used such forms often enough – ([84]). One of the reasons for making the remark concerning the workers compensation form was because of Mr Gama’s race or colour – ([84]). It also constituted discrimination contrary to s 15 of the Disability Discrimination Act - ([100] and [103]).

10. The requirement that Mr Gama report daily to Mr Hulskamp was not shown to be because of Mr Gama’s race – ([86]) nor did it constitute discrimination on account of disability - ([105]).

11. Checking on Mr Gama by Mr Hulskamp was based upon complaints about Mr Gama from persons to whom he had been assigned – ([87]).

12. There was nothing to link any conduct of Mr Clerke to discriminatory views about Mr Gama based on his race or colour – ([88]).

13. Although there was a general culture in the workplace to persons of Asian background, the evidence went no further than to show the making of racially insensitive remarks. It did not inform Qantas employment policies relating to training, transfers and promotion – ([97]).

14. The Court could not be satisfied that a memorandum allegedly sent from Mr Hulskamp in March 1999 to co-ordinators saying that claims of pain by Mr Gama were "in his head" had ever been written – ([104]).

15. The allegation that Mr Hulskamp would constantly check up on Mr Gama to ensure that he was not wasting any time was not substantiated – ([108]).

16. Mr Gama failed to meet the onus of proving his allegation that Mr Clerke and Ms Collins began to ring him two or three times a day and arrange meetings to which they did not turn up – ([109] – [110]).

17. Qantas dealt with Mr Gama in accordance with its procedures and practices. Mr Gama did not satisfy the onus of establishing that he was not offered the same conditions of work as others by reason of his race, colour or national or ethnic origin. By implication, his Honour also found no discrimination based on race or disability in the circumstances surrounding Mr Gama’s termination – ([111] – [115]).

18. It was not shown that Mr Gama was not promoted by reason of disability – ([118]).

19. The Court was unable to be satisfied that the rehabilitation coordinator said she had been told not to assist in finding jobs suitable for Mr Gama’s disability – ([119]).

42 His Honour set out a table summarising his findings by reference to the relevant paragraphs in his judgment. It is convenient to reproduce that table here.

Point of claim	Finding	Relevant Paragraphs
Race Discrimination claims
The "Bombay taxi driver" incident Discussed at [75] of these reasons.	Found that the remark was made by Hulskamp in breach of s 9 of the RDA. Discussed in relation to the "You should be waking [sic] up the stairs like a monkey" incident at [76].	[75] [84]
The "You should be walking up the stairs like a monkey" incident Discussed at [76] of these reasons.	Found that the remark was made at a time after 1998 in breach of s 9 of the RDA.	[76] [78]
The "Ask Willie" Workers Compensation incident Discussed at [82] of these reasons.	Accepts that there was a meeting in 1998 or more probably early 1999 and Hulskamp made the remarks, because of Mr Gama’s race, in breach of s 9 of the RDA.	[84]
Disability discrimination claims
Hulskamp criticized the applicant for his use of the Workers Compensation system, intimating that his regular use was not legitimate Discussed at [100] of these reasons.	Found Hulskamp did make this remark [82]-[84] in relation to the race discrimination claims. Found that the statement had the effect of treating Mr Gama less favourably than a person without the disability in circumstances that are the same and not materially different.	[100]
The "You should be walking up the stairs like a monkey" incident Discussed at [101] of these reasons.	Found that it was made and Hulskamp heard it and did nothing to alleviate the effect of it.	[101]
Hulskamp said to meeting of engineers that the applicant "knew how to manipulate the Workers compensation system" Discussed at [103] of these reasons.	Found that it was made in relation to the race discrimination claims at [84]. Found that it was discriminatory in context of disability discrimination also.	[103]

43 His Honour considered medical evidence about the effects of the alleged discriminatory conduct on Mr Gama’s mental state. He found that the evidence did support an argument that the discriminatory events contributed to Mr Gama’s depressive illness. Mr Gama had a serious depressive illness. His Honour referred to, and evidently accepted, the evidence of Dr Orlay which suggested that the discrimination which Mr Gama suffered may have included remarks which triggered his depression. He said (at [125]):

That seems to me to be the only available evidence. I must do the best I can to assign a causative percentage so that I can assess the general damages following from the actions.

44 His Honour was of the view that the damages awarded to Mr Gama should "... reflect the fact that Mr Gama has only been able to persuade me of the existence of a general attitude of racial intolerance and a few unpleasant incidents". He compared Mr Gama’s case with that of the applicant in Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618. In that case Mr Naidu sued his employer Group 4 Securitas Pty Limited and Nationwide News Limited which had contracted certain security services at its premises to Group 4 Securitas. The security and fire manager employed by Nationwide News Limited had so grossly misbehaved towards Mr Naidu that he suffered serious psychiatric injury. He claimed that his employer and Nationwide News Limited had both breached a duty of care towards him that required them to prevent the relevant misbehaviour. He also claimed against his employer for breach of the contract of employment.

45 In discussing the assessment of general damages in Naidu Adams J said that had it not been for limiting provisions of the Workers Compensation Act 1987 (NSW) he would have awarded general damages of $200,000 in respect of the causes of action in tort. A separate sum of $150,000 was foreshadowed as the award he would have made for breach of the contract of employment by Mr Naidu’s employer. The reasoning which led the learned Federal Magistrate to the figure he selected in Mr Gama’s case is set out in [127] thus:

In making the assessment I have considered what might properly be awarded for the worst possible case of injury and attempted to position Mr Gama’s condition along the line of that graph curve. I have concluded that whatever figure I might alight upon for the proper measure of damage for all of his injuries I must make a significant reduction to reflect the fact he has been unable to prove the more serious causative events. I would take a figure somewhat lower than Justice Adam’s figure in Naidu as the appropriate figure to be awarded on an unrestricted basis for damage of the type suffered by Mr Gama because the figure should reflect the fact that Mr Gama has only been able to persuade me of the existence of a general attitude of racial intolerance and a few unpleasant incidents. This should be compared with the proved long term abuse of Mr Naidu. To my mind this element reflects the pain and suffering element of a traditional injury as opposed to the sequelae of the injury being the effects that the injury leaves with the injured person. I have taken a figure of 20% as appropriate for the contribution to his condition of those discriminatory actions that I have found to have been proved. This results in an award to Mr Gama of $40,000.00.

46 The above paragraph suggests that had his Honour found Qantas entirely responsible for Mr Gama’s depressive illness, he would have awarded damages of $200,000 being less than the Naidu total figure because of the absence of long term abuse of the kind found in that case. He selected 20% of that base figure to calculate the award to Mr Gama because of the existence of causative factors other than the discrimination to which Mr Gama was exposed at Qantas.

47 His Honour rejected Mr Gama’s claim for loss of opportunity in relation to promotions ([129]). Allowance for loss of enjoyment of family and other social activities and stress on his marriage, was included in the general damages of $40,000. His Honour also allowed a figure for past and future medical expenses and associated travel costs, all discounted to 20%. He allowed interest on all the damages which he awarded. This led to the total sum of $71,692.70 ([129] – [131]).
Grounds of appeal

48 Omitting particulars, the grounds of appeal in the amended notice of appeal were as follows:

1. The Federal Magistrate erred in finding a contravention of section 9(1) of the Racial Discrimination Act 1975 (Cth) by drawing inferences from the facts as found.

...

2. The Federal Magistrate erred in finding that a remark/comment made in the workplace was capable of giving rise to a contravention of section 9(1) of the Racial Discrimination Act.

...

3. The Federal Magistrate erred in construing section 18A of the Racial Discrimination Act.

...

4. The Federal Magistrate erred in finding that the appellant contravened sections 5 and 15(2)(d) of the Disability Discrimination Act 1992 (Cth).

...

5. The Federal Magistrate erred in assessing general damages for the purpose of section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) by reference to the principles set out in Naidu v Group 4 Securitas Pty Limited [2005] E 93-408; ([2005] NSWSC 618).

...

6. The award of $40,000 in general damages was manifestly excessive.

7. The Federal Magistrate erred by compensating the respondent for the following items in the absence of evidence to substantiate the claimed loss:

(a) past medical expenses based on 45 visits to a psychiatrist;

(b) travelling costs associated with the 45 visits;

(c) cost of medication on a weekly basis since December 2000;

(d) future medial [sic] expenses based on 15 visits per year for 7 years on the 20% basis;

(e) travel costs to attend such future appointments;

8. The Federal Magistrate erred in assessing interest in the sum of $14,853.70.

Grounds of the cross-appeal

49 Omitting particulars, the grounds of the cross-appeal set out in the second further amended cross-appeal are as follows:

1. His Honour erred by using the Briginshaw test when applying the balance of probabilities standard with regard to some of the Cross Appellant’s allegations under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 (Cth)

In the alternative;

2. His Honour erred by applying the balance of probabilities test with regard to some allegations under the Racial Discrimination Act 1975 (Cth) at such a high level that in the absence of direct evidence of racial discrimination, the Racial Discrimination Act 1975 (Cth) is ineffective.

The following are the allegations referred to in paragraphs 1 and 2 above:

(a) His Honour erred in failing to find that the Cross Appellant was subject to discrimination by other employees when throughout his employment co-workers would photocopy a blank sheet of paper so that it came out black, hold it up and say words to the effect of "Willy, here is your photograph, what a strong resemblance."

(b) His Honour erred by not admitting the Cross Appellant’s evidence of the abovementioned incident set out in paragraph 6 of his affidavit sworn 21 July 2005.

[This particular was not pressed]

(c) His Honour erred by failing to find the Cross Appellant suffered discrimination under both the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 when his supervisor Mr Hulskamp repeatedly checked up on the Cross Appellant during the course of his light duties.

(d) His Honour erred by failing to find the Cross Appellant suffered discrimination when, contrary to it’s [sic] usual procedures, the Cross Respondent failed to nominate the Cross Appellant for any training courses during the whole of his employment and in particular the period where Mr Hulskamp was his supervisor.

(e) His Honour erred by failing to find the Cross Appellant suffered discrimination under the Racial Discrimination Act 1975 (Cth) and the Disability Discrimination Act 1992 when the Cross Appellant was expected to report to Mr Hulskamp on a daily basis while on light duties.

(f) His Honour erred by failing to find the Cross Appellant suffered discrimination when the Cross Respondent failed to promote the Cross Appellant throughout the entire period of his employment.

3. His Honour erred when having found a figure for damages he made a reduction of 80% of general damages, past and future medical expenses and out of pocket expenses for travel and medication to reflect the fact that the Cross Appellant had been unable to prove some of his claims.

4. His Honour erred when he found that medical costs for the foreseeable future as opined by the treating psychiatrist was for a period of only 7 years when the Cross Appellant’s life expectancy was 22.4 years.

5. His Honour erred in his award of interest by making an assumption in the absence of evidence that the expenses may have been the subject of a Medicare rebate and because the award was manifestly too low in any event.

6. His Honour erred by awarding costs to the Cross Appellant pursuant to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001 for a hearing that lasted for more than two (2) days, instead of an award pursuant to Schedule 2 of the Federal Court Rules 2001.

In the alternative;

7. His Honour erred by awarding costs to the Cross Appellant pursuant to Part 21 Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001 where such costs were inappropriately low for a matter of such complexity and length thereby depriving the Cross Appellant of the benefit of his award for damages.

Notice of contention

50 Mr Gama contended that the learned magistrate’s findings could be supported upon the additional grounds set out below. The grounds were numbered as follows, reflecting the numbering used in the notice of appeal:

4. The Respondent submits that further evidence which supports His Honour’s finding that there was a general culture inimical to persons of Asian background within Qantas is the evidence of Mr Harte at 260.10 – 261.30.

The evidence given by Mr Gama, who His Honour found to be a witness of the truth, gave evidence that when he complained to the union representative Ian Hamley about the sign "Chinese geeks-slant eyes" Mr Hamley said "It was an every day event. Don’t take it personally."

In cross examination although Mr Harte could not remember saying "we are not ready to have a black in management" in 1986, but when asked whether there were any blacks in management at that time he said "Not that I recall. Not in Sydney anyway".

7. The Appellant contends His Honour erred by treating a statement made by the Respondent for proceedings in the Australian Industrial Relations Commission as the Respondent’s evidence when it was not relied on or adopted by the respondent as part of the evidence in the proceedings before the Federal Magistrate.

However this evidence forms part of annexure JKT 2 to the affidavit of Jessica Kate Taylor sworn 19 December 2005.

16. The Appellant incorrectly contends that there is no evidence of Mr Gama’s medical, medication and traveling [sic] expenses.

This evidence of the out of pocket expenses is in the affidavit of William Gama sworn 25 January 2006.

Statutory framework – the Human Rights and Equal Opportunity Commission Act 1986 (Cth)

51 Under s 46P(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), a written complaint may be lodged with the Commission alleging unlawful discrimination. Where a complaint is made to the Commission under s 46P the Commission must refer it to the President (s 46PD). If a complaint is referred to the President, the President must inquire into it and attempt to conciliate the complaint (s 46PF(1)). The President is empowered to terminate a complaint on any one of a number of grounds set out in s 46PH of the HREOC Act. One of those grounds is that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1)(i)). Where the President decides to terminate a complaint the President must notify the complainants in writing of that decision and of the reasons for it (s 46PH(2)).

52 Section 46PO provides for an application to be made to the Federal Court or the Federal Magistrates Court where a complaint has been terminated. The application is confined by the four corners of the complaint as appears from s 46PO(3):

The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

53 The powers of the Court upon an application alleging unlawful discrimination are set out in s 46PO(4):

If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

54 Section 46PR provides:

In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

Statutory framework – Racial Discrimination Act

55 Section 9 of the Racial Discrimination Act provides that racial discrimination is unlawful in the following terms:

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

The reference to human right and fundamental freedom in s 9(1) includes rights of a kind referred to in Art 5 of the International Convention on the Elimination of all forms of Racial Discrimination (the Convention). Article 5(e) sets out economic, social and cultural rights and, in particular:

(i) the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.

56 Section 18A of the Racial Discrimination Act provides for vicarious liability in the following terms:

(1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and

(b) the act would be unlawful under this Part if it were done by that person;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

Statutory framework – Disability Discrimination Act

57 Section 15 of the Disability Discrimination Act prohibits discrimination in work on the grounds of disability. In particular, s 15(2) provides:

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

Section 4 defines "disability" and within that definition includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

Section 5 defines disability discrimination:

(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

Statutory Framework – Evidence Act 1995 (Cth)

58 Section 140 of the Evidence Act 1995 (Cth) concerns the standard of proof in civil proceedings:

Civil proceedings: standard of proof

(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

Appeal ground 1 – inferences, evidence and onus of proof

59 By its first ground of appeal Qantas alleged that the learned Federal Magistrate erred in finding a contravention of s 9(1) of the Racial Discrimination Act by drawing inferences from the facts as found. It might have been expected that the particulars of a ground so framed would then identify the impugned inferences. Instead, only one of the six particulars of this ground identified what might be regarded as an inference. The particulars were as follows:

(a) the Federal Magistrate erred in relying on evidence of alleged events prior to 1998 to prove alleged contraventions of the Racial Discrimination Act in 1998 and 1999, in circumstances where he had determined that the temporal scope of the respondent’s claim was limited to the period 1998 to October 2002; see Gama v Qantas Airways Ltd (No 1) [2006] FMCA 11;

(b) the Federal Magistrate erred by making findings adverse to the appellant contrary to the unchallenged evidence of witnesses called by the appellant;

(c) the Federal Magistrate erred in making a finding there was a ‘general culture inimical to persons of Asian background within Qantas’ in the absence of any evidence to support such a finding and then relying on that finding to draw inferences adverse to the appellant;

(d) the Federal Magistrate erred by finding that alleged race discrimination could be proved by the absence of a satisfactory denial by the appellant’s witnesses, thereby reversing the onus of proof and requiring the appellant to disprove the respondent’s claims;

(e) the Federal Magistrate erred in rejecting the evidence of the appellant’s witnesses who were directly involved in the alleged incidents of race discrimination on the basis that it would be naïve to assume that if those witnesses had made the racial remarks they would have admitted it at this late stage of the process;

(f) the Federal Magistrate erred in treating a statement made by the respondent for proceedings in the Australian Industrial Relations Commission as the respondent’s evidence when it was not relied on or adopted by the respondent as part of his evidence in the proceeding before the Federal Magistrate.

Particular (a)

60 In his interlocutory decision given on 16 January 2006, his Honour dealt with the argument put by counsel for Qantas that pre-1998 matters referred to in Mr Gama’s application to the Federal Magistrates Court had not formed part of his original complaint which had been terminated by HREOC and therefore, by virtue of s 46PO(3) of the HREOC Act could not be raised in the court proceedings. His Honour said (at [7]):

I agree that events that might have occurred pre-1998 could put the post-1998 events into context. But it does not make the pre-1998 matters capable of forming complaints in their own right. I accept that the pre-1998 incidents did not form part of the applicant’s original complaint and that they were not considered by HREOC. For that reason they cannot constitute "terminated complaints".

The above finding did not preclude his Honour from having regard to events prior to 1998 as part of the history and context relevant to allegations of unlawful discrimination falling within the scope of the terminated complaint. At [66] in the decision under appeal, his Honour said:

It is to be remembered that this case proceeded on the basis that the only claims which the court could deal with qua claims were those incidents occurring after 1998 which had been the subject of the complaint to HREOC. But it was accepted that those claims would be informed by Mr Gama’s work history from the time he commenced at Qantas.

There is no error disclosed in this approach.

Particular (b)

61 His Honour was not obliged to accept the evidence of any witness notwithstanding that the witness was not cross-examined on a point in issue. In this context it may be noted that Mr Gama represented himself for a substantial part of the trial having at one point apparently fallen out with his legal advisors. In the 7^th edition of Cross on Evidence (Heydon JD (ed) (2004, Lexis Nexis Butterworths) at [17460] the general proposition is stated that if a witness is not cross-examined on a point cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it. However the text notes that a different rule is said to apply in Magistrates Courts where a party may not be legally represented. Relevantly for present purposes it is accepted that there is no requirement that the court must accept evidence not the subject of cross-examination particularly when it is contradicted by other evidence.
Particular (c)

62 Qantas characterised the inferential finding of a "racist culture" within Qantas as central to his Honour’s decision. The judgment was said to have involved sweeping generalisations about Qantas as a whole and was not limited to any particular point in time, the circumstances of Mr Gama’s employment, a particular location or any nexus to the allegations in his amended points of claim. Mr Gama had not alleged that he was bullied or harassed or exposed to a hostile or racist working environment at Qantas generally or even at his particular workplace. Qantas submitted that there was therefore no reason for his Honour to make any finding about its "culture". The only relevance of that finding was to create a basis upon which he could draw further adverse inferences against Qantas witnesses. In doing so, it was said, he fell into error because he effectively reversed the onus of proof and ignored the principle in Browne v Dunn (1893) 6 R 67. It was also said that he took an approach rejected in Sharma v Legal Aid Queensland (2001) 112 IR 124 at 163. There Kiefel J was said to have expressly rejected the contention that the existence of racism in the community was a proper basis for a finding that discrimination had occurred in a given case. Then it was said that even if a finding about the culture was relevant, it was not open on the evidence.

63 The proposition that his Honour based his specific findings going to Qantas’ liability on general observations about its workplace culture is not sustainable. Extracting those observations, such as they were, we note that his Honour found:

1. That Mr Perry Harte had said to Mr Gama in 1986 "We are not ready to have a black in management yet. You have not been here long enough". He made that finding on the basis that Mr Gama was "very firm in his evidence that those words were spoken" and that the person alleged to have said them was "not called to give evidence to rebut that allegation". In fact Mr Harte was called as a witness and did deny making the statement. His Honour did not, however, accept Mr Gama’s contention of "systemic and endemic racial intolerance within the Qantas workforce". He did not believe that "Qantas was the unblemished workplace management would like me to accept in terms of the views about race held by its employees". He said that there was no evidence that Mr Harte’s alleged view of Qantas management policies was the correct view or reflected those policies. The remark had been made a long time before 1998 and even if he were to find that it did reflect Qantas policy, that would be of no avail to Mr Gama in his post-1998 claims.

His Honour therefore found that the alleged remark had been made and that he did not believe that Qantas had an unblemished workplace in terms of views about race. His finding however led nowhere adverse to Qantas in his conclusions.

2. At [97] his Honour said he had found that there was "a general culture inimical to persons of Asian background". It is not apparent from the reasons where that finding had been made earlier. And having made this very general statement, his Honour then eviscerated it by his observation, immediately following, that:

... the evidence does not go further than the making of racially insensitive remarks.

He added that there was no evidence which would permit him to draw inferences that the conduct permeated down the rather bureaucratic systems through which Qantas worked its employment policies, particularly those relating to training, transfers and promotions. Again, this finding appears to have gone nowhere in terms of the findings of fact upon which his Honour held Qantas liable.

3. At [127] in assessing damages, his Honour observed that the figure should reflect the fact that Mr Gama had only been able to persuade him of the existence of a general attitude of racial intolerance and a few unpleasant incidents. He was, of course, not entitled to rely upon a "general attitude of racial intolerance", whatever that meant, for the purpose of assessing damages. However it played no part in relation to the question of liability.

64 The criticism may be offered that his Honour made gratuitous observations about the workplace in which Mr Gama was employed. However none of them appears to have played any part in the determination of liability. Qantas rightly submitted that there was no reason for him to make any findings about "culture". Accepting that submission, the findings did not affect the conclusions about liability.
Particular (d)

65 His Honour did not find that race discrimination could be proved by the absence of a satisfactory denial by Qantas witnesses. At one point, dealing with the "Bombay taxi driver" comment attributed to Mr Hulskamp, his Honour said (at [75]):

Mr Gama has to prove his case. He has to prove it on the balance of probabilities.

There was no basis for the suggestion that his Honour reversed the onus of proof.

Particular (e)

66 This particular refers to a passage in [76] of the reasons for judgment dealing with the remark attributed by Mr Gama to one or other of his fellow employees, Mr Simpson or Mr Talentire, made in the presence of Mr Hulskamp. The alleged remark related to his ability to walk up stairs like a monkey. His Honour referred to the denials by Mr Simpson and Mr Hulskamp. Mr Talentire was deceased at the time of the hearing. His Honour said (at [76]):

Ms Eastman argues that I should accept the denials of Mr Simpson and Mr Hulskamp. But it would be naïve to assume that if they had made the remarks they would have admitted it at this late stage of the process. Mr Gama accepted that Mr Simpson did not use the words, and so the gravamen of his evidence is that he did hear them being spoken by another person. Mr Hulskamp’s reaction to the cross examination about the incident from Mr Gama was

"Mr Gama I do not recollect the situation. I am not aware of it and I am not aware of the situation or the scenario, I cannot recall."

Mr Gamma may be uncertain about the time and may have been uncertain about who exactly used the words. But what he was not uncertain about was that the words were used and that they were used in a situation where a senior employee, Mr Hulskamp, did not intervene after they had been used. The history of this remark is longstanding. Mr Gama outlined the claim in similar detail in the complaint made to HREOC in 2003.

His Honour then referred to a statement which Mr Gama had made to the AIRC, in which he said (at [76]):

I continued to work but the pains in my lower body were unbearable, especially when climbing steps. My action when climbing steps was laughed at by fellow workmates. This was passed on to other members in the shift. Many adverse remarks used to be yelled out, which made me feel hurt and humiliated.

He said further (at [76]):

Once again, Mr Gama is consistent. I do not believe that the terms of the remark were made up by Mr Gama. I think that on the balance of probabilities the remark was made and that it was made at a time after 1998.

67 The observation that it would be naïve to assume that if Mr Simpson and Mr Hulskamp had made the remarks they would have admitted it "at this late stage in the process" may be taken as a basis for not simply accepting their denials. That non-acceptance proves nothing. The comment was one his Honour was entitled to make. It did not disclose appealable error.
Particular (f)

68 The reference to the statement made to the AIRC was a little puzzling. It was not dealt with in the written submissions filed on behalf of Qantas. The statement in question was part of an exhibit to an affidavit sworn by a solicitor acting for Qantas which was filed in the proceedings in the Federal Magistrates Court. The exhibit included the notice of termination sent by HREOC to Mr Gama dated 16 March 2004. Attached to that notice, and included in the exhibit, was his original application to HREOC which itself had included as an attachment the statement he had made to the AIRC. It appears therefore that Qantas itself put the statement on the record as an exhibit to its solicitor’s affidavit to which his Honour had regard when setting out the history of the proceedings in HREOC. He expressly referred to the proceedings in the AIRC at [47] of the reasons for judgment.

69 No complaint was made that his Honour erred in having regard to a prior consistent statement in support of the testimony before him. The complaint was that Mr Gama himself had not relied upon the statement as part of his evidence. We are concerned about the reference to the document, but having regard to the way the appeal ground was framed, it does not disclose error. On one construction of his Honour’s reasons the prior consistent statement to the AIRC along with the complaint made to HREOC itself were taken into account as evidence weighing against an inference that Mr Gama had recently fabricated his complaint.

70 It is also worth noting s 46PR of the HREOC Act dealing with proceedings of the kind brought in the Federal Magistrates Court in this case:

In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.

71 For the preceding reasons, ground 1 of the appeal fails.
Appeal ground 2

72 In ground 2 Qantas contended that the learned Magistrate erred in finding that a remark or comment made in the workplace was capable of giving rise to a contravention of s 9(1) of the Racial Discrimination Act. By way of particularisation of that ground Qantas asserted that his Honour had failed to make a finding under s 15 of the Racial Discrimination Act relating to discrimination in employment. It said that, having failed to make such a finding his Honour erred in finding that the human right described in Art 5(e)(i) of the Convention applied to remarks or comments made by employees in the workplace. The latter right is one of the economic, social and cultural rights set out in the Convention defined thus:

The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration.

73 In its written submissions, Qantas described ground 2 as raising a question about the proper construction of s 9(1) of the Racial Discrimination Act and how inferences are relevant to the findings of racial discrimination for the purposes of s 9(1). It began by submitting that his Honour had found that three remarks made in 1998 or 1999 constituted a breach of s 9(1). There was no finding that they constituted systemic racial bullying or harassment. Nor was there a finding that they created any disadvantage in the workplace. Mr Gama’s claims in relation to promotion and training had failed. Qantas submitted that his Honour was in error in construing s 9 so as to find each remark without more was an act of unlawful discrimination. It was not open to his Honour to find that a remark alone involved a "distinction, exclusion, restriction or preference" which had either the "purpose" or "effect" of "nullifying" or "impairing" the recognition, enjoyment or exercise of a "human right", relevantly the right to work provided by Art 5(e)(i) of the Convention. Qantas submitted that for the purpose of s 9(1) simply making a remark was not unlawful discrimination. The question was whether there was a nexus between the remark and some adverse impact on the conditions of employment.

74 Qantas’ complaint on this aspect of its argument focussed on [77] of the reasons. In that paragraph his Honour seemed initially to be referring to the "walking up the stairs like a monkey" remark but then broadened its application to the "Bombay taxi driver" remark. It would also seem to have applied to the subsequent finding in [82] concerning Mr Hulskamp’s statement to Mr Gama’s co-workers that they should ask him how to fill in workers compensation forms as he had used such forms often enough.

75 At [77] of his reasons for judgment his Honour referred to s 9 of the Racial Discrimination Act and Art 5(e)(i) of the Convention and then said:

Ms Eastman (counsel for Qantas) in her submissions argued that the comments do not involve a "distinction, exclusion, restriction or preference based on race", but I am unable to agree with her. I think the remarks clearly consist of a distinction based on race. They distinguish Mr Gama on the basis of his race from the other workers who were present at the time the remarks were made. The remarks were clearly based on the applicant’s race or colour because they would have no relevance or meaning without those elements. I am equally satisfied that the making of those remarks impaired Mr Gama’s enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from his workmates.

76 We do not accept that his Honour’s reasons disclose error in his construction or application of s 9(1) of the Racial Discrimination Act. Section 9 prohibits a class of acts defined by their attributes and their purpose or effect. To be unlawful under s 9 it is necessary that an act involve "a distinction, exclusion, restriction or preference based on race, colour, dissent or national or ethnic origin ...". The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person’s race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person’s race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person’s race then that linkage establishes both the distinction and its basis upon race. That was the present case.

77 The second attribute of an unlawful act under s 9(1) is that it have the purpose or effect of nullifying or impairing a person’s recognition, enjoyment or exercise on an equal footing of any "human right or fundamental freedom ...". The denigration of an employee on the grounds of that person’s race or other relevant attribute can properly be found to have the effect of impairing that person’s enjoyment of his or her right to work or to just and favourable conditions of work. The question then is whether two or three racist remarks over a period of time can have such a purpose or effect. That is a matter of fact dependent upon the nature and circumstances of the remarks.

78 The learned magistrate having found the remarks were made, was satisfied that the making of them impaired Mr Gama’s enjoyment or exercise of his right to work and to just and favourable conditions of work which would include the right to work free of discriminatory comments from his workmates. He did not elaborate in his reasons the way in which these particular incidents could have had that effect. Undoubtedly remarks which are calculated to humiliate or demean an employee by reference to race, colour, descent or national or ethnic origin, are capable of having a very damaging impact on that person’s perception of how he or she is regarded by fellow employees and his or her superiors. They may even affect their sense of self worth and thereby appreciably disadvantage them in their conditions of work. Much will depend upon the nature and circumstances of the remark. Occasional politically incorrect banter will be unlikely to have the requisite purpose or effect. The judgment is a matter of fact. The judgment which the learned magistrate made was open to him on the facts which he found. It did not involve a misconstruction of s 9(1). Appeal ground 2 therefore fails.
Appeal ground 3

79 By appeal ground 3 Qantas alleged that his Honour erred in construing s 18A of the Racial Discrimination Act in the following particulars:

(a) the Federal Magistrate misconstrued section 18A by finding that it imposed an obligation on an employer to take all reasonable steps to prevent unlawful conduct for which a separate breach of the Racial Discrimination Act may be found.

(b) the Federal Magistrate failed to construe section 18A as a defence or exception to discrimination where an employer demonstrates it had taken all reasonable steps to prevent unlawful conduct.

80 In support of this ground Qantas referred to [78] of his Honour’s judgment in which he said:

I am satisfied the "Bombay Taxi Driver" remark was made in breach of s 9. I am satisfied that whilst Mr Hulskamp may not have made the "walk up stairs" remark he was the senior employee and he condoned the making of the remark in a way which would place liability on Qantas pursuant to s 18A.

This seems to have been the only reference to s 18A in the reasons beyond the statement at [70] setting out the relevant provisions of the Racial Discrimination Act that:

Section 18A of the RDA applies vicarious liability to the acts of employees.

81 Qantas submitted that his Honour erred in construing s 18A as a provision which imposes an obligation on an employer to take all reasonable steps and that a failure to do so creates a separate ground for finding liability. It argued that s 18A does not create a separate ground for liability. We accept that it is not prima facie unlawful to fail to take steps to prevent discrimination. Rather, s 18A operates to excuse a respondent from liability imposed via s 18A(1) if reasonable steps were taken to prevent its employee or agent from doing the act which would otherwise attract that liability. On its proper construction s 18A would not make Qantas liable for "condoning" a remark made by an unidentified person. As Qantas did not seek to rely on the defence under s 18A the point of his Honour’s reference to the section is not clear.

82 It seemed that the real complaint being advanced by Qantas was that throughout the reasons his Honour had taken an approach that the failure of senior managers at Qantas to prevent certain things occurring gave rise to its liability. Counsel for Qantas in her oral submissions said that what the learned magistrate seemed to have done was to focus on the conduct of certain individuals, make findings about them, and then conclude that because they were in a managerial capacity and did not do anything, Qantas was liable for their failure to take steps to prevent conduct occurring. This was said to "flip the nature of s 18A" and change it from being a defence to being something that itself creates a primary liability.

83 The point taken by Qantas on s 18A was elusive. The learned magistrate at [78] relied upon s 18A(1) to attribute to Qantas the unlawful acts he had found committed by its employees. The question of the defence did not arise. Ground 3 also fails.
Appeal ground 4 - disability discrimination

84 Qantas alleged that his Honour erred in finding that it had contravened ss 5 and 15(2)(d) of the Disability Discrimination Act. The particulars of error were as follows:

(a) ... failing to make a finding that the respondent had a particular disability at the material time and relied on unspecified disabilities which the respondent claimed to have at various points in time.

(b) ... finding that remarks that contravened section 9(1) of the Racial Discrimination Act amount to disability discrimination in circumstances where section 5 of the Disability Discrimination Act is expressed in different terms to section 9(1) of the Racial Discrimination Act and different evidence must be considered.

(c) ... failing to follow Forbes v Australian Federal Police Commonwealth of Australia [2004] FCAFC 95. Having found that a remark or remarks made by the respondent’s supervisor to the effect that the supervisor did not believe that the respondent had compensable injury, there could be no finding of a contravention of sections 5 and 15(2)(d) of the Disability Discrimination Act.

85 The learned magistrate observed at [98] that Mr Gama’s amended points of claim seemed to refer to what he called s 5 discrimination and s 15 discrimination. However he was satisfied that in presenting the case Ms Gormly, who appeared on behalf of Mr Gama for part of it, understood that s 5 merely defined disability discrimination and s 15 created the relevant prohibition. His Honour referred to [17] of the amended points of claim which referred to s 5 of the Disability Discrimination Act. He accepted it as a pleading of conduct contrary to s 15.

86 At [100] of the reasons his Honour referred to his previous finding about Mr Hulskamp’s criticism of Mr Gama for his use of the workers compensation system. He said:

I see nothing in those words which indicates they were referring to Mr Gama not having a disability. They appear to me to be a sarcastic reference to the fact that he had had disabilities and made claims for them under Workers Compensation. I am of the view that the words had the effect of treating Mr Gama, a person who had previously had a disability or was imputed to have had a disability, less favourably than a person without the disability in circumstances that are the same and not materially different.

The effect of that discrimination was said to subject Mr Gama to a detriment, contrary to s 15(2)(d), namely insulting treatment. The comparator was a person who had not suffered work injuries for which he had made workers compensation claims in the past. His Honour said (at [100]):

Given the evidence of other remarks of a racial nature which I have accepted that Mr Hulskamp made it is not difficult for me to infer that Mr Hulskamp was antipathetic to Mr Gama, both because of his race and because he was a person who had suffered disabilities as that term is defined in the DDA. One of Mr Hulskamp’s particular concerns was that Mr Gama was "double dipping", in other words, claiming Workers Compensation for a non-work related injury, such as an inguinal hernia. That caused him to make remarks or to act discriminatorily towards Mr Gama in other ways. It is not excused by the fact that some of Mr Gama’s disabilities might not have been work-related. They are still disabilities.

87 In relation to the remark that Mr Gama should be able to climb stairs like a monkey, his Honour said (at [101]):

This remark was allegedly made by John Talentire, now deceased. Mr Hulskamp did not recall this remark being made but I am prepared to accept Mr Gama’s evidence that it was. The complaint made against Qantas is that a supervisory employee, Mr Hulskamp, was present when the remark was made and did nothing to alleviate the effect of it. I am satisfied that the remark was made because of Mr Gama’s disability as well as his race, that as such it effected less favourable treatment of him by subjecting him to ridicule and that it was condoned by Qantas management in the shape of Mr Hulskamp.

88 At [103] of his reasons for judgment, the learned magistrate dealt with the allegation that Mr Hulskamp told a meeting of engineers that Mr Gama "knew how to manipulate the workers compensation system". This was a reference to the "Ask Willie" comment which the learned magistrate found was made at a meeting probably early in 1999. The learned magistrate said (at [103]):

I am now asked to find whether or not the remark was made also because of Mr Gama’s disability as required by s 5 of the DDA and that in this way a breach of s 15(2)(d) occurred. I would first distinguish this remark made in public to a group of fellow employees from the similar although not identical remark referred to in s 17(4) made in private to Mr Gama. I said that the latter remark was not made because of Mr Gama’s disability but because of his alleged "double-dipping". The remark made to the engineers was not a remark about "double-dipping", it was a straight-out remark about Workers Compensation. In Mr Gama’s case it was a remark made about Workers Compensation claims for work injuries that constituted disabilities under the DDA. The applicant as a person with a disability was treated less favourably in circumstances that were the same or not materially different, being the meeting, that a person who did not have a disability would have been treated. The person who did not have a disability would not have had a reference made about him and his knowledge of Workers Compensation forms.

89 Qantas submitted that his Honour failed to consider all of the requisite elements of s 5 of the Disability Discrimination Act with respect to "direct discrimination". Critical to any claim of disability discrimination was the identification of the disability then said to be the reason for less favourable treatment at the relevant period of time. The conduct found was said to have occurred in 1998 or early 1999. The question was whether Mr Gama had; or previously had, a disability which was the cause of the less favourable treatment at that time. His Honour failed to make any finding that there was a disability in 1998/1999 or that there had previously been a disability that was a cause of the less favourable treatment.

90 It was not in dispute that Mr Gama had suffered a number of different workplace injuries over a long period of time. But there was no attempt on his part to identify a disability which allegedly caused the less favourable treatment. Counsel for Mr Gama submitted that his Honour had found in his decision that Mr Gama hurt his shoulder in a work-related accident in September 1998 and that he had an operation for a bilateral hernia for which workers compensation was paid. The scar bled in January 1999 and he was given restricted duties on 1 February 1999.

91 We are of the opinion, with respect, that Qantas’ complaint about this aspect of his Honour’s reasons is made out. They did not identify the relevant disability nor the particular way in which the remarks constituted less favourable treatment because of the disability. Rather the remarks tend to reflect a belief that Mr Gama had made a claim for workers compensation to which he was not entitled.

92 In our opinion the learned magistrate’s findings of discrimination on the grounds of disability cannot be sustained.
Appeal ground 5 – Damages

93 It is said that his Honour erred in assessing general damages for the purposes of s 46PO(4) of the HREOC Act by reference to the principles set out in Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618. The particulars of ground 5 were as follows:

(a) the Federal Magistrate erred in applying in Naidu v Group 4 Securitas Pty Limited on the basis that he found that the respondent’s psychiatric condition was not significantly less serious than the plaintiff in Naidu.

(b) the Federal Magistrate further erred by relying on Naidu v Group 4 Securitas Pty Limited which concerned proceedings for negligence and breach of contract, and where Justice Adams specifically stated that he did not consider it necessary to consider the Racial Discrimination Act.

(c) the Federal Magistrate erred by seeking to distinguish the proper approach to the assessment of general damages set out in Commonwealth v Evans (2004) ALD 402.

94 His Honour’s reasoning in relation to assessment of damages has already been outlined. The damages which can be awarded under s 46PO(4) of the HREOC Act are damages "by way of compensation for any loss or damage suffered because of the conduct of the respondent". Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Ch) the appropriate measure will be analogous to the tortious. That may not be every case. Ultimately it is the words of the statute that set the criterion for any award. In any case the discretionary character of the remedy allows an award of an amount "by way of compensation" which does not fully compensate for the loss suffered. In that respect, however, we are not satisfied that his Honour made any error.

95 His Honour referred to Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618 and the damages award of $350,000 in that case which was based on breach of contract and tort for which the sum of $200,000 was the notional amount that would have been awarded by way of general damages for tort by Adams J absent the application of a statutory limit under the Workers Compensation Act 1987 (NSW). The award in Naidu, as his Honour characterised it, was "for the sequelae of years of racial and sexual abuse against an employee who suffered severe depressive illness as a result".

96 His Honour’s reference to Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618 seemed to be an attempt to find some basis for an assessment of damages for a person who suffered depressive illness as the result of unlawful conduct. To the extent that he relied upon the case to give him some guideline in that area of general damages, he did not err in principle. He also referred to State of Victoria v McKenna [1999] VSC 310, in which an award of $125,000 was made where the applicant had suffered severe depressive illness, stress and extreme anxiety and had attempted suicide. At [127] his Honour said that he took a figure lower than that in Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618:

... to reflect the fact that he has been unable to prove the more serious causative events.

And further:

... the figure should reflect the fact that Mr Gama has only been able to persuade me of the existence of a general attitude of racial intolerance and a few unpleasant incidents.

97 His Honour’s reference to the incidents duration and seriousness of the discriminatory conduct reflected what he called "the pain and suffering element of a traditional injury as opposed to the sequelae of the injury being the effects that the injury leaves with the injured person".

98 If there were an error in that aspect of his Honour’s approach it was an error that favoured Qantas. What his Honour has attempted to do in this case is to reach a figure by way of compensation, inter alia, for Mr Gama’s depressive illness having found that the discriminatory events contributed to it.
Appeal ground 6 – manifestly excessive award

99 Appeal ground 6 asserted that the award of $40,000 by way of general damages was "manifestly excessive". Qantas pointed out that in his reasons for decision, taking Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618 as a starting point, his Honour posited (although he did not say so expressly) a maximum figure of $200,000 if the discriminatory conduct could have been regarded as having caused his depressive illness. The figure of $40,000 which he selected reflected "... 20% as appropriate for the contribution to his condition of those discriminatory actions that I have found to have been proved" (at [127]). While the reasoning may be less than satisfactory, it reflects the difficulties of assessment of general damages where depressive illness is a serious element of the sequelae of a relatively few and isolated episodes of discriminatory conduct. The damages which may be awarded under s 46PO(4)(d) are in the discretion of the Court. They are "... by way of compensation for any loss or damage suffered because of the conduct of the respondent". That remedial provision does not require that a damages award must provide full compensation. It may be that a lesser compensatory award will be made according to the circumstances of the case. The fact that the discriminatory conduct was a contributor to the onset of a depressive illness but not its sole cause, may be taken into account when determining what is an appropriate sum "by way of compensation". In the circumstances we are not satisfied that his Honour erred in setting the award at $40,000. Having regard to the seriousness of the illness which his Honour found was suffered by Mr Gama, it cannot be regarded as excessive. Appeal ground 6 therefore fails.
Appeal ground 7 – special damages

100 In appeal ground 7 Qantas alleges that his Honour erred by compensating Mr Gama for the following items in the absence of evidence to substantiate the claimed loss:

(a) past medical expenses based on 45 visits to a psychiatrist;

(b) travelling costs associated with the 45 visits;

(c) cost of medication on a weekly basis since December 2000;

(d) future medical expenses based on 15 visits per year for 7 years on the 20% basis;

(e) travel costs to attend such future appointments;

101 Qantas pointed out that the burden of proving both the fact and the amount of the damage fell on Mr Gama. The amended points of claim indicated that the claim for out of pocket expenses was to be advised. Mr Gama, it was said, never advised Qantas or the Court of the particulars of loss. No evidence was adduced as to the actual loss incurred for the claims.

102 In Mr Gama’s affidavit sworn 25 January 2006 and filed in the Federal Magistrates Court, he said that he had spent $49.50 per week on medication since December 2000 and would continue to require that amount until further advice by his treating doctor, Dr Orlay. He said he had to travel from Milton to Sydney to see Dr Orlay and the round trip cost $105 since July 2002. He was first referred to Dr Orlay in July 2002 and had his first appointment in September 2002. He had an appointment every fortnight and believed the appointments would continue for at least another six months. He said he required his wife to accompany him when he went to medical appointments and whenever he needed to go out of the house as he suffered from anxiety or panic attacks.

103 In her oral evidence, Dr Orlay the consultant psychiatrist treating Mr Gama, said that she had seen him 45 times since she first saw him in September 2002. She was asked how much it cost for him to go and see her. She said he had not paid because he was bulk billed under Medicare but each session cost between $125 and $150 depending upon the length of the sessions, either an hour or an hour and a half. She envisaged that he would need to continue to see her for the foreseeable future. That would be about once a month with her. She said he saw his general practitioner in between times, about fortnightly.

104 There was therefore evidence of medical expenses and associated travelling costs. The ground of appeal was framed solely on the basis that there was no such evidence. That ground therefore fails.
Appeal ground 8 – interest

105 Qantas alleges that the learned Federal Magistrate erred in assessing interest in the sum of $14,853.70.

106 In his judgment his Honour said that in respect of the general damages interest should commence on the date that Mr Gama’s employment with Qantas was terminated, being 25 October 2002. He calculated interest at the rate of 9% under Schedule J of the Rules of the Supreme Court of New South Wales 1970 in accordance with Federal Court practice. Mr Gama commenced his treatment with Dr Orlay on 22 July 2002. His Honour found it difficult to calculate interest in relation to that claim because he assumed that Mr Gama was entitled to at least some rebate from Medicare for attendances on a qualified psychiatrist. He awarded $100 interest on the medication costs and $200 interest on the cost of travel.

107 Qantas submitted that s 76 of the Federal Magistrates Act 1999 (Cth) provides for interest to be awarded up to judgment in terms similar to s 51A of the Federal Court of Australia Act 1976 (Cth). The Court has a discretion as to the rate of interest that should be fixed and the period over which it should be calculated. Qantas submitted that no particulars of the interest claim were provided and no submissions were made as to the proper approach to interest before the magistrate. Qantas submitted that the proper date for interest was 27 July 2003, being the date on which the complaint was lodged with HREOC, not 25 October 2002. The claim was not concerned with the termination of Mr Gama’s employment and the date of termination was not the relevant date upon which the cause of action arose. It also complained that the rate of interest should have been a commercial rate and not 9%.

108 The date on which interest was fixed and the rate at which it was fixed were within the discretion of the magistrate. Whilst different views might be taken about both commencement date and rate, Qantas has not demonstrated any error in principle in this respect and this ground of appeal also fails.
Cross-appeal ground 1 – Briginshaw test

109 Mr Gama complains that his Honour erred by using the Briginshaw test when applying the balance of probabilities standard with respect to some of his allegations under the Racial Discrimination Act and the Disability Discrimination Act.

110 The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour’s reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]- [61], concerning the application of s 140(2)(c) of the Evidence Act 1995 (NSW) are consistent with her Honour’s reasons. The first ground of cross-appeal therefore fails.
Cross-appeal ground 2 – Briginshaw revisited

111 Under ground 2 of the cross-appeal it is said that his Honour erred by applying a balance of probabilities test with regard to some allegations under the Racial Discrimination Act "... at such a high level that in the absence of direct evidence of racial discrimination, the Racial Discrimination Act 1975 (Cth) is ineffective". This ground seems to embody a policy comment.

112 The particulars referred to various matters which his Honour was said to have erroneously failed to find, these being other allegations of discrimination made by Mr Gama before his Honour. They were:

1. the complaint that throughout his employment co-workers would photocopy a blank sheet of paper so that it came out black, hold it up and say words to the effect of "Willy, here is your photograph, what a strong resemblance";

2. that his supervisor, Mr Hulskamp, repeatedly checked up on Mr Gama during the course of his light duties and that Mr Gama thereby suffered discrimination under both Acts;

3. that Qantas failed to nominate Mr Gama for any training courses during the whole of his employment and in particular the period that Mr Hulskamp was his supervisor and that he thereby suffered discrimination;

4. that Mr Gama was expected to report to Mr Hulskamp on a daily basis while on light duties and thereby suffered discrimination;

5. that Qantas failed to promote Mr Gama throughout the entire period of his employment and he thereby suffered discrimination.

113 His Honour has dealt with these matters in his reasons in a way that does not disclose any error in the application of the standard of proof. Ground 2 of the cross-appeal fails.
Cross-appeal ground 3 – damages

114 Mr Gama complains that his Honour made a reduction of 80% of general damages, past and future medical expenses and out of pocket expenses for travel and medication to reflect the fact that he had been unable to prove some of his claims.

115 This ground is not made out. Although his Honour’s reasons in assessment of general damages are not without difficulty, the amount that he awarded was within the discretion conferred on him by s 46PO of the HREOC Act. They reflected the limited findings of discrimination that he had made coupled with his finding of the serious sequelae to which those discriminatory acts contributed.
Cross-appeal ground 4

116 It is alleged that his Honour erred in finding that medical costs for the foreseeable future was for a period of only seven years when Mr Gama’s life expectancy was 22.4 years. There was no evidence that Mr Gama would be likely to suffer from depressive illness for the rest of his life. There is nothing in this ground.

Cross-appeal ground 5 – interest

117 According to this ground his Honour erred in his award of interest by making an assumption in the absence of evidence that expenses may have been the subject of a Medicare rebate and because the award was manifestly too low in any event. There was evidence of Medicare rebate by the treating psychiatrist. The amount of interest that his Honour awarded was discretionary. There was no error of principle in the amount that he fixed in the circumstances. This ground of the cross-appeal does not succeed.
Cross-appeal ground 6 – costs

118 Mr Gama complained that his Honour erred by awarding costs to Qantas under the Federal Magistrates Court Rules for a hearing that lasted for more than two days instead of an award pursuant to Schedule 2 of the Federal Court Rules 2001. In the alternative, it is said that his Honour erred by awarding costs pursuant to the Federal Magistrates Court Rules where such costs were inappropriately low for a matter of such complexity and length, thereby depriving Mr Gama of the benefit of his award for damages.

119 Although there were some factual complexities about the matter, it was appropriately dealt with in the Federal Magistrates Court. The lower scale applicable in that Court operates for the benefit of all parties. In our opinion his Honour is not shown to have erred in the exercise of his discretion in the way he fixed costs. This ground of the cross-appeal will be dismissed.

120 As to the "grounds of cross appeal" referred to in Mr Gama’s amended notice of cross appeal filed on 7 November 2007, his complaint as formulated had to do with his intentions rather than any error on the part of the learned magistrate.
Conclusion

121 We have found that the learned magistrate erred in his findings adverse to Qantas in relation to disability discrimination. However the findings as to racial discrimination remain in place. Given the substantial congruency of the events which gave rise to the two sets of findings there is little point in remitting the disability discrimination claims back to the Federal Magistrates Court for determination. The substance of the damages assessed does not turn upon any distinction between the findings in relation to racial discrimination and those in relation to disability discrimination. In our opinion, therefore, the orders of the Court should be as follows:

1. The order made by the Federal Magistrates Court on 8 December 2006 be varied by deleting the words "and s 15(2)(d) of the Disability Discrimination Act 1992".

2. The appeal be otherwise dismissed.

3. The appellant pay two thirds of the respondent’s costs of the appeal.

4. The cross-appeal be dismissed.

5. The cross-appellant pay the cross-respondent’s costs of the appeal.

6. Any party wishing to seek any costs order in relation to the intervention of the HREOC to file and serve written submissions within 14 days. HREOC to file and serve submissions in reply 14 days thereafter.

I certify that the preceding one hundred and twenty one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French and Jacobson.

Associate:
Dated: 2 May 2008

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2539 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	QANTAS AIRWAYS LIMITED Appellant
AND:	WILLIAM GAMA Respondent

JUDGES:	FRENCH, BRANSON AND JACOBSON JJ
DATE:	2 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BRANSON J

122 I have had the advantage of reading in draft the reasons for judgment of French and Jacobson JJ. I agree with the orders proposed by their Honours and generally with their reasons for judgment but wish to express some views of my own on the issues of the appropriate standard of proof.

The Alleged Briginshaw Test

123 The learned Federal Magistrate included in his reasons for judgment what his Honour described as a "discussion about the Briginshaw standard". Mr Gama contended by his cross-appeal that his Honour erred in using "the Briginshaw test" when applying the civil standard of proof. For the reasons set out below it seems to me that each of the expressions "the Briginshaw standard" and "the Briginshaw test" should be avoided because of its tendency to mislead.

124 It is appropriate to start by referring to the well known statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362:

Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

125 I note, incidentally, that in the above passage Dixon J speaks of ‘allegations’ rather than, for example, causes of action. His Honour was concerned, as it seems to me, with the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding.

126 More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction.

127 Briginshaw v Briginshaw, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) ("the Evidence Act") which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows:

(1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

128 In Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 ("Neat Holdings") at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...’.

(footnotes and citations omitted)

129 I went on at [66]-[67] to question the accuracy of certain judicial observations to the effect that in cases of a particular kind a "standard of proof above mere satisfaction on the balance of probabilities is appropriate" and suggested that in every case it was necessary to consider not only the nature of the case but also the nature of the particular fact in issue, of which proof is required, including its inherent gravity and unlikelihood.

130 It does not seem to me that the Full Court decision in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 is to be understood as adopting a different view from that which I expressed (with the agreement of Kenny J) in Employment Advocate v Williamson. As the Court noted in Sharma v Legal Aid (Qld) at [40], it was common ground at first instance in that matter "that the standard of proof for breaches of the RDA [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw v Briginshaw" and no contrary argument was put on the hearing of the appeal.

131 Nor do I understand the Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [29]- [38] to have adopted a different view. Their Honours noted at [31] that Dixon J’s classic statement in Briginshaw v Briginshaw appositely expresses the considerations that s 140(2) of the Evidence Act now requires a court to take into account. They went on at [33] to draw attention to the judgment of the High Court in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. I note that in that case at 521 the High Court made it plain that "the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused" (emphasis added).

132 The conclusions relevant to the proceeding the subject of this appeal that can be drawn from the above analysis of the authorities can be simply expressed as follows. The Federal Magistrates Court was required to find Mr Gama’s case proved if it was satisfied that his case had been proved on the balance of probabilities (s140(1) of the Evidence Act). Mr Gama’s case in the relevant sense was comprised of the facts in issue on which he bore the onus of proof. In deciding whether it was satisfied of the facts in issue on which Mr Gama bore the onus of proof the Federal Magistrates Court was bound to apply s 140 of the Evidence Act. His Honour was therefore free to take into account any relevant matter but he was required to take into account the three matters specifically mentioned in s 140(2) of the Evidence Act.

133 I therefore turn to consider the three matters specifically mentioned in s 140(2) of the Evidence Act. The first of the three matters was, relevantly, the nature of the cause of action. As the gravity of the matters alleged constitutes the third of the matters specifically mentioned in s 140(2), it may be assumed that this is not the primary concern of the reference to the nature of the cause of action. Mr Gama’s cause of action was founded on s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth) ("the HREOC Act"). It is not possible to identify exhaustively the factors to which the Federal Magistrate was entitled to have regard in taking into account any of the matters to which s 140 refers. However, in my view, his Honour was entitled to have regard to the fact that s 46PO only operates where a complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission ("the President"). The legislative requirement for complaints of unlawful discrimination to be made in the first instance to the President reflects a recognition, as it seems to me, that the practical implications of human rights principles are not always well understood by members of the Australian community. For this reason, not only may claims of discrimination lack substance but acts of discrimination may occur without the actor intending to breach those principles. For these reasons moral opprobrium may, but does not necessarily, attach to an allegation of discriminatory conduct.

134 The second of the three matters specifically identified in s 140(2) of the Evidence Act is the nature of the subject matter of the proceeding. The nature of the subject matter of the proceeding before the Federal Magistrates Court was a complaint that Qantas had done acts rendered unlawful by s 9(1) of the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act"). Among the factors that it would have been appropriate for his Honour to take into account in this regard was the fact that the Racial Discrimination Act was, as its preamble discloses, enacted to give effect to the International Convention on the Elimination of all Forms of Racial Discrimination ("the Convention"). As Weinberg J observed in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 ("the Macedonian Teachers’ case") at p 29, "anti-discrimination legislation should be regarded as beneficial and remedial legislation".

135 Additionally, s 9(1) of the Racial Discrimination Act is concerned with acts involving a "distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin". That is, it is not concerned to proscribe only conduct motivated by an intention or purpose to discriminate. Moreover, s 9(1) reaches to conduct "based on" the factors identified by the subsection and not merely to conduct undertaken "by reason of" those factors (Macedonian Teachers’ case partic. at p 40). Each of these factors tends to diminish the opprobrium likely otherwise to attach to a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Together they tend to diminish the gravity of such a finding.

136 Sections 18 and 18A of the Racial Discrimination Act, where relevant, may also tend to diminish the gravity of a finding that an act was unlawful by reason of s 9(1) of the Racial Discrimination Act. Section 18 provides, in effect, that where an act is done for two or more reasons and one of the reasons is proscribed by the Act, then, even though that reason is not the dominant reason or even a substantial reason for doing the act, the act is to be taken to have been done for that reason. Section 18A of the Act imposes vicarious liability on a person whose employee or agent does an unlawful act in connection with his or her duties as an employee or agent unless it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

137 The final matter specifically identified in s 140(2) of the Evidence Act is, as mentioned above, the gravity of the matter alleged. Without wishing to diminish the significance of the factual allegations made by Mr Gama, which themselves varied in gravity, more serious allegations of racial discrimination can be brought to mind.

138 As identified above, in addition to taking into account the three matters specifically identified in s 140(2), it was open to his Honour to have regard to other relevant matters. Other relevant matters could include the inherent unlikelihood, or otherwise, of the occurrence of the matter of fact alleged (see the passage from Briginshaw v Briginshaw set out in [4] above) and the long standing common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and the power of the other party to contradict (Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 per Branson J at [76]).

139 As I have already indicated, I agree with the conclusion of French and Jacobson JJ that the Federal Magistrate’s reasons for judgment do not disclose any error in the application of the applicable standard of proof to Mr Gama’s allegations. However, in my view, for the reasons given above, references to, for example, "the Briginshaw standard" or "the onerous Briginshaw test" and, in that context, to racial discrimination being a serious matter not lightly to be inferred, have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.

I certify that the preceding eighteen (18)) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:
Dated: 2 May 2008

Counsel for the Appellant:	Ms K Eastman and Mr M Seck
Solicitor for the Appellant:	Minter Ellison Lawyers
Counsel for the Respondent:	Ms P Gormly and Ms B Arste
Solicitor for the Respondent	Oliveri Lawyers
Counsel for the Interveners: Solicitor for the Interveners:	Mr J K Kirk Human Rights and Equal Opportunity Commission
Date of Hearing:	17 and 18 September 2007
Date of Judgment:	2 May 2008