Victimisation - legal principles
79It is unlawful for a person to victimise (or punish) another person because he or she has complained of discrimination or done certain other things listed in s 50 of the AD Act:
(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
80To prove victimisation, Mr Burns must establish the following:
(a)he did one of the things referred to in sub-paras (a) to (d);
(b)Mr Sunol caused him to undergo or experience something;
(c)he suffered some consequential detriment; and
(d)that detriment occurred on one of the grounds set out in sub-paras (a) to (d): Carter v Brown [2010] NSWADT 109 at [131] - [133].
81The concept of "detriment" was discussed in detail in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was, held that "... all that is required to constitute a 'detriment' in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter." The Tribunal went on to say that a broad interpretation of the word detriment is "consistent with the evident legislative intention to protect those who use the processes of the Act, or contemplate such use or assist in relevant ways in such use." The Tribunal adopted this construction of the word "detriment" in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano v Wilkinson [2004] FMCA 891.
82In the Tribunal's 2012 decisions some complaints of victimisation were dismissed because the detriment inflicted by the publications was "trivial". The Tribunal explained that each of the non-victimising publications contained "no more than a single derogatory imputation about Mr Burns' character or conduct." The Tribunal went on to say that:
In each case, the underlying motivation - that Mr Sunol was angry about being made the respondent in legal proceedings instituted by Mr Burns - was immediately apparent to readers, many of whom would therefore be unlikely to pay much attention to the imputation. Accordingly, there was in our judgment no sufficient 'detriment' to support a claim of victimisation.
83The finding that many readers would be unlikely to pay much attention to the imputation is relevant when assessing whether Mr Burns suffered any damage to his reputation. He makes no such claim in this case.
84In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40], the Tribunal held that the word "detriment" should be given its ordinary English meaning of "loss, damage or injury". The statement in Bogie that the complainant must be placed under a disadvantage as to a matter of substance as distinct from a trivial matter, is no more than an attempt to define detriment. If the disadvantage is trivial it will not constitute a detriment. Section 50 speaks of "any detriment in any circumstances". Regardless of the circumstances, any detriment is sufficient. Depending on the circumstances, that detriment may include the humiliation and stress which the comments engender and/or, as was suggested by the Tribunal in its 2012 decision, the damage to a person's reputation.
85Whether a detriment has been suffered is to be determined objectively. In Sivananthan at [41], the Tribunal stated that "it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment." In summary, in our view a detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial.
86In determining whether the detriment occurred "on the ground of" one of the matters set out in sub-paras (a) to (d), the question is whether "one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment": Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.