Lina Obieta v Human Rights and Equal Opportunity Commission - [2007] FCA 85 - FCA 2007 case summary — Zoe

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Lina Obieta v Human Rights and Equal Opportunity Commission

[2007] FCA 85

Federal Court of Australia|2007-02-07|Before: Cowdroy J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2007-02-07

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (52 paragraphs)

[1]

I INTRODUCTION 1 The applicant (Ms Obieta) claims that the Human Rights and Equal Opportunity Commission ('the Commission') has unlawfully discriminated against her under various provisions of the Racial Discrimination Act 1975 (Cth) ('RDA'), the Sex Discrimination Act 1984 (Cth) ('SDA') and the Human Rights and Equal Opportunity Act Commission Act 1986 (Cth)('HREOC Act'). 2 Ms Obieta's claim arises in consequence of the handling of a complaint made by her to the Commission in relation to numerous incidents of alleged unlawful discrimination under the RDA and SDA whilst she was a student at TAFE Sydney Institute, Ultimo ('TAFE'): see Lina Obieta v NSW Department of Education and Training and Ors [2006] FCA 1693 ('TAFE proceedings'). It is necessary to refer to the facts in detail to comprehend Ms Obieta's claims.

[2]

II FACTS 3 By Complaint Form received by the Commission on 24 May 2005 Ms Obieta complained to the Commission concerning alleged discrimination by TAFE and the Vocational Education and Training Accreditation Board ('VETAB'), their employees and various students at TAFE. By letter dated 25 May 2005 Ms Obieta provided further details of numerous incidents of alleged unlawful discrimination, harassment and victimisation. 4 By letter dated 11 July 2005 Ms Obieta, having had no contact with an officer of the Commission, wrote to inquire of the progress of her complaint. On 13 July 2005 Mr Dominic Viricillo, an officer of the Commission sent an email to Ms Obieta concerning her matter and requesting details of her claim. On the same day an attempt was made to contact Ms Obieta by telephone. This attempt was unsuccessful and a message was left on her answering machine requesting her to call the Commission. 5 Ms Obieta did not respond by telephone. However, by letter dated 20 July 2005 Ms Obieta provided precise details of the complaint against fellow students, namely Ms Alexie Davis and Ms Ryissa Fogarty and also against her teachers, namely Mr David Norman and Mrs Susan Elfert. On 16 August 2005 Mr Viricillo made a minute that he had left a telephone message on Ms Obieta's answering machine informing her that the Commission was commencing the inquiry that day. 6 An internal memorandum prepared on 16 August 2005 by Ms Merrilyn Aylett, an officer of the Commission addressed to Ms Rocky Clifford, a delegate of the President of the Commission, recorded the detail of Ms Obieta's complaint and noted that Ms Obieta wished to pursue a complaint under the RDA against Ms Ryissa Fogarty. Ms Fogarty was not nominated as a person who was the subject of the complaint in Ms Obieta's original Complaint Form. The memorandum stated: 'It is not alleged that Ms Fogarty made any comment based on race and there does not appear to be any alleged act of discrimination by Ms Fogarty.'

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25 The letter concluded with details of Ms McCabe's telephone number and email address in the event that Ms Obieta had any questions of her. 26 By letter dated 27 January 2006 Ms Obieta wrote to Ms Karen Toohey, Acting Director Complaint Handling concerning the conduct of Ms Aylett. Ms Obieta stated that she did not receive any phone messages claimed by Ms Aylett to have been left on her answering machine on 11 November 2005 or on any subsequent day. She also stated that an extension of time in which to provide the submissions had been requested, both by email and by letter, but that no response had been received. Ms Obieta stated that she believed that she had been treated unfairly and less favourably than the other respondents in the complaint handling procedures. Such letter also complained of inconsistencies in the treatment accorded to her and alleged that her submission dated 1 September 2005 which itemised Ms Fogarty's alleged unlawful behaviour had not been considered by the Commission. 27 According to the date stamp contained on Ms Obieta's letter of 27 January 2006, it was received by the Commission on 31 January 2006, namely the day after Ms McCabe had written to Ms Obieta. 28 By letter dated 8 February 2006 Ms Obieta wrote to Ms McCabe responding to her letter of 30 January 2006. Ms Obieta's letter contained the allegations of sexual harassment and racial hatred by Mr Norman and by Ms Davis, and alleged vicarious liability of TAFE and VETAB. The letter made no reference to Ms Fogarty. 29 On 16 February 2006 Ms Diana Temby, Executive Director of the Commission, responded to Ms Obieta's letter of 27 January 2006. The letter acknowledged that Ms Aylett did not respond in writing to Ms Obieta's written request for an extension of time. However the letter advised that Ms Aylett had attempted to telephone Ms Obieta on 11 November 2005 and that Ms Aylett did not leave a message on Ms Obieta's Telstra home message service because she was concerned to maintain Ms Obieta's confidentiality. It further stated that if Ms Aylett had been able to get in contact with Ms Obieta she would have informed Ms Obieta that there was no objection to her request for an extension of time. 30 The letter of 16 February 2006 also explained that Ms Aylett intended to telephone Ms Obieta again but she did not do so as Ms Obieta's submissions arrived by the due date. The letter continued: 'You also state that you believe one of the respondents named in your complaint, Ms Alexie Davis, was granted an extension of time of several months to respond to the allegations against her. This was not the case. Ms Davis was not notified of the complaint on 16 August 2005 as the Commission was not aware of her contact details. Ms Davis was notified of the complaint on 27 October 2005 and a response was requested within 21 days. Ms Davis spoke to Ms Aylett on 1 November 2005 and was given an extension until 30 November 2005 as she advised that she was commencing exams. No further extension was requested or granted, but the response was not received until 5 January 2006. I understand that it was forwarded to you on 30 January 2006.

[42]

Issue 2 - Failure to grant extension 69 Ms Aylett testified that when a request for an extension of time is made, it is her practice to inquire the reason for an extension rather than merely to grant it without explanation. Ms Obieta acknowledges that in making her request for an extension of time she provided no reasons for such request. Ms Obieta acknowledged that she never told any officer of the Commission that she would have difficulty in meeting the deadline for the provision of submissions. Nor did she telephone Ms Aylett at any time from the date of the lodgement of her complaint concerning any issue. 70 The contemporaneous file note made by Ms Aylett on 11 November 2005, and her oral evidence satisfies the Court that Ms Aylett did attempt to telephone Ms Obieta, but that no message was left by Ms Aylett for the sole reason of protecting Ms Obieta's confidentiality. Ms Aylett testified that she was not aware of the residential circumstances of Ms Obieta, and was concerned that other persons might have access to the answering machine. 71 Further, although I am of the opinion that the letter written by Ms Obieta requesting the extension of time dated 15 November 2005 should, as a matter of courtesy, have been responded to, I am satisfied that the failure to respond was as a result of an oversight, and not the result of any intentionally discriminatory conduct directed towards Ms Obieta based upon her race. 72 In cross examination Ms Obieta acknowledged that her concern arose from the fact that she was not provided an extension of time whereas the respondents were granted an extension. She acknowledged also however that all of the material that she wished to place before the Commission had been provided to it in her letter dated 22 November 2005 and that there was nothing additional which she wished to put in answer to the request for information by the Commission. Although complying with the requested date for the receipt of submissions caused Ms Obieta inconvenience, no substantive detriment resulted. 73 Accordingly, this ground must fail.

[48]

(d) Sex discrimination claims 83 Ms Obieta claims that the exercise of the President's powers under s 46PH of the HREOC Act included victimisation within the meaning of s 94 of the SDA; and conduct that 'causes, instructs, induces, aids or permits' the respondents in the TAFE proceedings to discriminate against Ms Obieta on the ground of sex within the meaning of s 105 of the SDA. 84 The Commission submits that Ms Obieta has adduced no evidence to establish that the President's exercise of discretion conferred by s 46PH of the HREOC Act to terminate the complaints as lacking in substance, resulted from the fact that Ms Obieta had made a complaint concerning the Commission staff. 85 The Commission also submits that there is no detriment to Ms Obieta arising from the President's termination of her complaint. In consequence of the termination of the TAFE and VETAB complaint, Ms Obieta was entitled to, and did in fact, commence proceedings in this Court under s 46PO(1) of the HREOC Act against TAFE and VETAB (see: TAFE proceedings). As such she has suffered no detriment and the complaint of victimisation against the President pursuant to s 94 of the SDA should be dismissed. 86 As to the 'aiding and abetting' alleged, the Commission submits that Ms Obieta's claim misconceives s 105 of the SDA. It submits that the President's discretion to make a decision under s 46PH of the HREOC Act does not involve the making of any binding determination concerning the merits of the complaint. Further, the process undertaken by the President does not involve sanctioning or permitting the alleged conduct. 87 Moore J in Elliott v Nanda and Another (2001) 111 FCR 240 at [163] explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.'