1. Section 5 of the DDA provided:
   • "5 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."
2. Section 6 of the DDA provided:
   • "6 Indirect disability discrimination
   • 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 the discriminator requires the aggrieved person to comply with a requirement or condition:
   • (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
   • (b) which is not reasonable having regard to the circumstances of the case; and
   • (c) with which the aggrieved person does not or is not able to comply."
3. Section 7 of the DDA provided:
   • 7 Disability discrimination - palliative and therapeutic devices and auxiliary aids
   • For the purposes of this Act, a person (discriminator) discriminates against another person with a disability (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by, or possesses:
     • (a) a palliative or therapeutic device; or
     • (b) an auxiliary aid;
   • that is used by the aggrieved person, or because of any matter related to that fact, whether or not it is the discriminator's practice to treat less favourably any person who is accompanied by, or is in possession of, and is the user of:
     • (c) such a palliative or therapeutic device; or
     • (d) such an auxiliary aid.
4. The relevant parts of s.15 of the DDA provided that:
   • "15 Discrimination in employment
   • (2) 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:
     • ...
     • (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."
5. The relevant parts of s.35 of the DDA provided that:
   • 35 Harassment in employment
   • (1) It is unlawful for a person to harass another person who:
     • (a) is an employee of that person; and
     • (b) has a disability;
   • in relation to the disability.
6. Section 5 of the SDA provided that:
   • "5 Sex discrimination
   • (1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
     • ...
     • (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
     • ...
   • the discriminator treats 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 of the opposite sex.
   • ...
   • (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
   • (3) This section has effect subject to sections 7B and 7D."
7. Section 7A of the SDA provided:
   • 7A Discrimination on the ground of family responsibilities
   • For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if:
     • (a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
     • (b) the less favourable treatment is by reason of:
       • (i) the family responsibilities of the employee; or
       • (ii) a characteristic that appertains generally to persons with family responsibilities; or
       • (iii) a characteristic that is generally imputed to persons with family responsibilities."
8. The relevant parts of s.14 of the SDA provided that:
   • "14 Discrimination in employment or in superannuation
   • ...
   • (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:
     • (a) in the terms or conditions of employment that the employer affords the employee;
     • (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;
     • (c) by dismissing the employee; or
     • (d) by subjecting the employee to any other detriment.
   • ...
   • (3A) It is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.
   • ..."

1. Some aspects of the history of this matter before the Court require exposition. The application to the Court was made on 3 August 2009 and listed a first Court date on 2 September 2009.
2. Steps were taken to arrange mediation by a Registrar of this Court between the parties. Both in this and attendances at subsequent Court dates, the respondents did not attend.
3. While the Registrar received some correspondence from Mr and Mrs Shaw, ultimately solicitors acting only in a limited capacity for the respondents advised the Registrar of this Court that Mrs Shaw was terminally ill with cancer, was hospitalised, and that she and Mr Shaw were "not in a position to deal with this matter".
4. Although not before the Court in any evidentiary context, Mrs Shaw died in early 2010. An amended application was subsequently filed, with leave, naming Mr Shaw as the only respondent.
5. Solicitors originally acting for Ms Maxworthy had left unclear the question of whether Mr Shaw (and Mrs Shaw) had ever been properly served with the application.
6. On 10 August 2010 I considered the affidavits (with annexures) of Mr Mark Mayford Morris, solicitor, made on 8 April 2010 and 6 August 2010. Mr Morris has represented Ms Maxworthy since 3 December 2009. Neither Mr Shaw nor any legal representative on his behalf was present.
7. Nevertheless, based on this evidence I was satisfied that Mr Shaw had been served with the application. The matter was set down for final hearing.
8. When the matter subsequently came on for final hearing, Ms Maxworthy was represented by Mr M Weightman of counsel. There was no appearance by, or for, Mr Shaw. Mr Weightman sought that, in the circumstances, the hearing should nonetheless proceed pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth).
9. Further, having regard to the evidence of Mr Morris (in particular his affidavit of 6 August 2010), I was also satisfied that comprehensive, and certainly reasonable, steps had been taken to notify Mr Shaw that the matter had been set down for hearing, and the time and place of that hearing.
10. It is quite understandable that, with the imminent death of his wife and the terminal illness from which she suffered, Mr Shaw was not able to participate in these proceedings during late 2009 and early 2010.
11. Even allowing for an appropriate period for mourning and grief, Mr Shaw's absence must be seen in light of his apparent and continuing absence from Court occasions in this matter. His avoidance of engaging to press any response to the application can only be seen, in all the circumstances, as deliberate.
12. In any event, Mr Shaw's circumstances must be balanced with those of Ms Maxworthy, who on the evidence before the Court suffers from a number of serious medical conditions and seeks resolution of this matter. (See the affidavits of Dr Robyn Maiolo, medical practitioner, of 8 December 2009, and Ms Sandra Pertot, clinical psychologist, of 15 February 2010, read into evidence before the Court.)
13. In all the circumstances, I was satisfied that it was appropriate that the matter proceed in the absence of Mr Shaw.

1. In all, the applicant relies upon the following evidence:
   1. The affidavit of Ms Julieanne Maxworthy sworn on 9 February 2010, with 13 annexures ("AJM").
   2. The affidavit of Dr Robyn Maiolo made on 8 December 2009, with two annexures.
   3. The affidavit of Ms Sandra Pertot made on 15 February 2010, with one annexure.
   4. Ms Maxworthy's oral testimony before the Court.

1. Ms Maxworthy is the applicant. She was employed at the Taree Lunch Spot between 30 June 2007 and 19 February 2008.
2. Ms Maxworthy deposes that:
   1. She suffers from Crohn's disease, which requires the wearing of a colostomy bag. The symptoms of the disease are exacerbated by stress. ([4] of AJM.)
   2. In June 2007 she was employed to work three hours, two days per week at The Lunch Spot, starting at 11.30am. ([5] of AJM.)
   3. In October 2007 she was also employed working two days a week at the Alma Place Aged Care Facility. ([7] of AJM.)
   4. Also in October 2007, the owners of The Lunch Spot sold the business to Mr Shaw and his wife. ([6] and [8] of AJM.) Ms Maxworthy's understanding was that "my employment came to an end when the McQuitlys [sic] [the former owners] sold the business and that [Mr and Mrs Shaw] made an offer of employment on the same terms to me, which I accepted. I was never provided with a written contract of employment". ([9] of AJM.)
   5. In the first week of November 2007 Mr Shaw and his wife were informed that Ms Maxworthy suffers from Crohn's disease and wears a colostomy bag. ([8] of AJM.)
   6. Initially, she was asked to work three days per week (8.30am to 1.00pm) without a break, driving a mobile sandwich van. ([12] of AJM.)
   7. Two weeks later, Ms Maxworthy was directed to work five days per week in the sandwich van. At this time, she was also under pressure to expand sales. ([13] of AJM.)
   8. At this time, Mr and Ms Shaw told Ms Maxworthy that: "We ran a similar business in Coffs Harbour and always used two women to staff both trucks as the work is too physically taxing to be done by one person all week every week". ([13] of AJM.)
   9. Around this time, Ms Maxworthy had a discussion with Mr Shaw, who indicated that her job was secure. ([14] of AJM.) As a result she gave up her position at Alma Place Nursing Home. ([15] of AJM.)
   10. A second person shared the work in the sandwich van for approximately one week, after which time they were removed from the van. At this time, Mr Shaw indicated that they would "get someone before Christmas" to assist Ms Maxworthy. ([16] of AJM.)
   11. As a result of the success of the sandwich van, Mr and Mrs Shaw instructed Ms Maxworthy to increase her work hours (from 7.00am to 2.30pm without breaks). Ms Maxworthy indicated that, while she could work these hours during the school holidays: "After the holidays I will not be able to start at 7am because of my childcare responsibilities". She further indicated that a second driver was needed for the sandwich van. Mr and Mrs Shaw indicated that they would get another person to assist. ([17] of AJM.)
   12. A second person was not appointed, and Ms Maxworthy continued to work five days per week in the sandwich van. ([17] of AJM.) However a second person was employed and trained to work in the sandwich van in anticipation that, after Christmas 2007, the work in the sandwich van would be shared. However this arrangement was not put in place. ([18], [21] and [22] of AJM.)
   13. Following return from the Christmas break, Mr Shaw again indicated that Ms Maxworthy was to start work at 7.00am. She indicated that she would not be able to do this during the school term as she needed to get her children ready for school. In response, Mr Shaw said: "Look Julie you're being slack letting others do your work. If you don't want to do what I am asking you won't have a job". ([19] of AJM.)
   14. Later, Mr Shaw accused Ms Maxworthy of damaging the truck used as the sandwich van. ([23] of AJM.)
   15. After two weeks of pressure to work in the van five days a week from 7.00am and "ill treatment from Mr and Mrs Shaw (in the form of 'looks from them')", the symptoms of Ms Maxworthy's disease were exacerbated. ([25] and [26] of AJM.)
   16. On 4 February 2008, Ms Maxworthy called Mr and Mrs Shaw to tell them that she was ill. Mrs Shaw hung up on her. ([26] of AJM.) The following day she again tried to contact Mrs Shaw, but the phone went unanswered. Ms Maxworthy left a message indicating that she was not well enough to attend work. ([27] of AJM.)
   17. On 6 February 2008 Ms Maxworthy spoke to Mr and Mrs Shaw. She indicated that: "The truck is too much for me by myself... The work and stress of trying to drum up the business and the way you have been treating me has really affected me. Stress is a high factor in how my Crohn's is stimulated". She also again raised concerns about her expected work hours. In response, Mrs Shaw said: "Sorry you've been unwell. We will fix it. Karen doesn't like driving the truck so we'll need to get someone else. How about you have the rest of this next week off and we'll get it sorted out. You do such a good job. Your job is safe. I'll call you on Sunday night to talk about when you can come back". ([29] of AJM.)
   18. On 7 February 2008 Ms Maxworthy saw her job advertised in the local paper (Annexure "C" of AJM). She assumed this was in relation to seeking an extra driver to assist with the sandwich van. ([30] of AJM.)
   19. On 9 February 2008 Ms Maxworthy was contacted by a friend, who indicated that Mr Shaw had approached her at work "and started yelling at me about you and how you were sick". ([31] of AJM.) As a result, Ms Maxworthy became concerned about her job. ([32] of AJM.)
   20. Ms Maxworthy made arrangements to return to work on 11 February 2008, but did not as she was not contacted by Mrs Shaw (see 17 above). ([32] of AJM.) She tried to contact Mr and Mrs Shaw on 12 February, and left messages asking them to contact her. ([33] of AJM.) Mrs Shaw contacted Ms Maxworthy on 13 February 2008. She indicated that they were "trying out people who responded to the advertisement in the paper" and would contact Ms Maxworthy about returning to work on the Friday (that is, 15 February 2008). ([34] of AJM.) Mrs Shaw did not contact Ms Maxworthy. ([37] of AJM.)
   21. On 19 February 2008 Ms Maxworthy wrote, by registered post, to Mr and Mrs Shaw requesting a date to return to work. ([35] of AJM.) No response was received to this letter. ([36] of AJM.)
   22. On the evening of 19 February 2008 Ms Maxworthy had a conversation with Mrs Shaw:
       • "Ms Maxworthy: When can I come back to work?
       • Mrs Shaw: You can't come back.
       • Ms Maxworthy: What? Are you firing me? You'll need to send me a letter of dismissal.
       • Mrs Shaw: We didn't fire you, you just didn't come back.
       • Ms Maxworthy: That's not right. I wanted to come back - you know I did. This is really unfair what you have done to me. I made it clear I was coming back to work but you never told me when I could.
       • Mrs Shaw: We need reliable people. We need people who won't drive with a serious eye disease. You crashed the truck.
       • Ms Maxworthy: I didn't crash the truck and my dry eye condition is not an issue. I won't be treated like this.
       • Mrs Shaw: I don't want you working in the business. You have no right working for us running around with that shit bag hanging off you."
   23. Ms Maxworthy was upset by this conversation. ([37] of AJM.) She was "traumatised" by the references to her disease and colostomy bag. ([38] of AJM.) Her existing depression and anxiety were exacerbated. ([39] of AJM.)
   24. Ms Maxworthy was unemployed until 2 June 2008 when she was employed as a waitress at the Taree-Wingham Race Club. She worked there until the week of 10 November 2008. ([40] of AJM.) She believes she did not get further work there: "because my confidence had been affected by what happened to me at the Lunch Spot". ([42] of AJM.) She has not since had any further employment. ([43] of AJM.)
3. In examination, Ms Maxworthy outlined her work history and current circumstances. She indicated that she is currently unemployed as she "can't deal with it". She was good at her job before and had never been sacked, however her treatment by the Shaw's had left her "mentally shy". She also indicated that her colostomy bag had never interfered with her work.

1. Dr Maiolo is Ms Maxworthy's treating practitioner. She was asked to prepare a report for the purpose of proceedings before this Court on behalf of the applicant. That report is annexed to her affidavit.

1. Ms Pertot is a clinical psychologist. She was asked to prepare a report in support of Ms Maxworthy's application to HREOC by a solicitor with Disability Advocacy NSW, who represented Ms Maxworthy at that time. That report is annexed to her affidavit.

1. In her amended application the applicant sought a number of declarations and orders. Ultimately, what I understood was that the applicant sought relevant findings from the Court such as to allow consideration of the awarding of (various) damages.
2. I also understood that the declarations referred to in the amended application were not pressed, probably flowing from what was said in Commonwealth of Australia v Evans [2004] FCA 654 ("Evans") per Branson J at [60].
3. Ms Maxworthy commenced employment at the Taree Lunch Spot in June 2007 ([5] of AJM). Mr and Mrs Shaw purchased this business in October/November 2007. The events now complained of by the applicant date essentially and cumulatively from this time until February 2008, when in a conversation with Mrs Shaw, Ms Maxworthy was told that she was no longer employed.
4. Ms Maxworthy believes that her employment was terminated. Her report of her conversation with Mrs Shaw was that the Shaws took the view that Ms Maxworthy abandoned her employment.
5. The applicant proceeds now pursuant to various provisions of the DDA and the SDA. Given the timing of relevant events, these are not the current versions of these Acts, which commenced operation on 5 August 2009 (Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) (No 70, 2009), s.2). The relevant version of the DDA and SDA, for current purposes, is that which was enacted by the Civil Aviation Amendment Act 2005 (Cth) (No 86, 2005) and the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No 1) (SLI 50 of 2006).
6. The version of the HREOC Act relevant to these proceedings is that incorporating amendments made under the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 (Cth) (No 54, 2009) (commencing 1 July 2009 and ending 4 August 2009).
7. The applicant's claim is grounded in:
   1. Section 15 of the DDA (disability discrimination).
   2. Section 35(1) of the DDA (harassment).
   3. Section 14 of the SDA (sex discrimination).

1. As noted above, Mrs Shaw was originally named as a party to these proceedings. She subsequently died. Mr Edgar Shaw is now the only respondent. Some of the relevant events refer to conduct by Mrs Shaw.
2. Section 122 of the DDA is in the following terms:
   • "122 Liability of persons involved in unlawful acts
   • A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act."
3. Section 105 of the SDA is in the following terms:
   • "105 Liability of persons involved in unlawful acts
   • A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act."
4. I agree with Mr Weightman that the state of the evidence before the Court is that Mr and Mrs Shaw, at the relevant time, were equally involved in their dealings with Ms Maxworthy. However, while the question of whether it can be said that they operated the business in partnership may be an assumption or inference that could be drawn if further evidence were available, it is not necessary for the disposition of this case. Ms Maxworthy's relevant evidence is directed to how Mr and Mrs Shaw dealt with her and other employees. This is sufficient to establish that they were both equally involved in their dealings as employers with Ms Maxworthy as an employee.
5. As Mr Weightman submitted, there is evidence that, on one important occasion, they both jointly spoke to her in relation to relevant employment matters on the telephone (see [29] of AJM).
6. Further, Ms Maxworthy's report of her conversation with Mrs Shaw on 19 February 2008, when Mrs Shaw told her that they no longer considered her to be employed at the Lunch Spot, indicates that this was conveyed on behalf of both the Shaws ("We didn't fire you", "we need reliable people", "you have no right working for us" - [37] of AJM).
7. For current purposes, therefore, I am satisfied that the conduct said to have been relevantly done by Mrs Shaw can also be attributed to Mr Shaw. Relevantly, for the purposes of both the DDA and SDA, Mr Shaw aided and permitted Mrs Shaw to act in the way she did in relation to the conduct asserted to her.
8. To the extent that any such act is unlawful for the purposes of the DDA or SDA, then Mr Shaw is taken to have done the act even though it was actually done by Mrs Shaw.

1. The applicant claims that she was subject to discrimination by the Shaws because of her disability. She relies on both s.5 (direct discrimination) and s.6 (indirect discrimination) of the DDA.
2. I should just note that disability is defined in the DDA:
   • "4 Interpretation
   • (1) In this Act, unless the contrary intention appears:
   • ...
   • disability, in relation to a person, means:
     • (a) total or partial loss of the person's bodily or mental functions; or
     • (b) total or partial loss of a part of the body; or
     • (c) the presence in the body of organisms causing disease or illness; or
     • (d) the presence in the body of organisms capable of causing disease or illness; or
     • (e) the malfunction, malformation or disfigurement of a part of the person's body; or
     • (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
     • (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
   • and 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."
3. As a preliminary point, it should be noted that direct and indirect discrimination have been held to be mutually exclusive concepts (see Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Mayer v Australian Nuclear Science & Technology Organisation [2003] FMCA 209 and Bropho v Western Australia [2007] FCA 519).
4. However this does not affect the applicant's capacity to at least plead both in the alternative (Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 ("Hollingdale") at [19]). In any event this was a restatement of what had been said earlier in Minns v New South Wales [2001] FCA 704. I note further that more recently, for example in Zoltaszek v Downer EDI Engineering Pty Ltd (No.2) [2010] FMCA 938 per Barnes FM, since Hollingdale this situation appears to have been implicitly accepted by this Court.
5. It is the case that a pleading in the alternative in these circumstances may give rise to an adverse costs order (Hollingdale at [19]), but for the reasons set out below this does not become an issue in the current case.
6. Pursuant to s.15 of the DDA, specifically s.15(2)(b) (limiting her access to certain opportunities), s.15(2)(c) (her dismissal from employment) and s.15(2)(d) (having been subjected to other detriment), the applicant claims that she was discriminated against on the basis of a disability, both directly and indirectly.
7. Preliminary to consideration of this complaint, the applicant is required to show that she had a disability, whether previously existing, currently existing, or may exist in the future.
8. The evidence of Dr Robyn Maiolo (see her affidavit of 18 December 2009) remains unchallenged before the Court. Dr Maiolo is the applicant's treating medical practitioner. Her evidence is that Ms Maxworthy suffers from a number of medical conditions. Amongst these, for current purposes (although all could be said to meet the definition of disability in some form or another), is Crohn's disease.
9. This disease has led the applicant to have been subjected to a total colectomy and an ileostomy (surgical removal of the colon and intestines). All the medical conditions are described by the doctor as having a chronic manifestation in Ms Maxworthy.
10. The evidence is that this condition requires Ms Maxworthy to wear a colostomy bag. (See Annexure "A" - the first page to the affidavit of Dr Maiolo.)
11. The evidence of Ms Pertot is that Ms Maxworthy was required to wear this bag, at least as at September 2008 (see annexure to the affidavit of Ms Pertot).
12. Ms Maxworthy's evidence is that she suffered from Crohn's disease and was required to wear the colostomy bag at the relevant times during her employment with the Shaws, and indeed at least from about June 2007 when she commenced employment at the Taree Lunch Spot when operated by the previous owners.
13. The state of the evidence before the Court is that the relevant definition of "disability" is satisfied with regard to s.4(a), (b), (c), (d) (with relation to Crohn's disease) and s.4(e) (with relation to other medical conditions referred to by Dr Maiolo). Any one of these is sufficient to satisfy the definition.
14. On the evidence, I am satisfied that the Crohn's disease at least was in existence during the time of her employment with the Shaws. For relevant purposes, therefore, the applicant has a disability.
15. To succeed before the Court in her claim of unlawful direct discrimination, Ms Maxworthy is required to establish that:
    1. She suffered a disability with reference to s.4 of the DDA.
    2. The Shaws discriminated against her.
    3. This was because of her disability (with reference to s.15).
16. The Court is satisfied as to (1) above.
17. "Disability discrimination" as defined in s.5 of the DDA requires the applicant to establish that she was treated less favourably by the Shaws (her employers at the relevant time). This requires a comparison with another person displaying the same behaviour and conduct as Ms Maxworthy. That is someone in her position, but who does not have the disability, and who would not have been treated less favourably.
18. In this regard, I note Mr Weightman's reliance on the majority in Purvis v New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92; 202 ALR 133; 78 ALJR 1 ("Purvis"), that the correct comparator is between Ms Maxworthy as a person with a disability who exhibited certain conduct as a result of the disability (for example any absences from work or limitations as to the hours worked due to her disability) and a person without the disability who behaved in the same way.
19. No evidence was put before the Court of any other actual person in the same, or at least not materially different, circumstances to Ms Maxworthy. In these circumstances the use of a hypothetical compartor is appropriate. Although I note that, to some extent, the Shaws' conduct towards other employees (Ms J McQuilty and Ms K Cooper - as referred to in Ms Maxworthy's evidence) provide some tangible point of reference in how the Shaws would have treated this hypothetical comparator.
20. I agree with Mr Weightman that, drawing on the circumstances as presented, the appropriate comparator is (at [54] of written submissions):
    • "a. An employee of "The Lunch Spot" having the same position and responsibilities of the Applicant;
    • b. Who did not have Crohn's disease;
    • c. Who was a well regarded employee;
    • d. Who carried a colostomy bag;
    • e. Who was unable to work in the mobile van on a full-time basis;
    • f. Who was absent from work for a short period of time."
21. The applicant asserts that she was directly discriminated against by the Shaws because they limited her access to relevant opportunities, dismissed her from employment, and subjected her to other detriment.
22. In considering this matter, a distinction must be drawn between Ms Maxworthy's medical condition (essentially Crohn's disease) and a consequence of the treatment of the symptoms and deleterious effects of that disease (the wearing of the colostomy bag).
23. In a sense, the wearing of the bag was a physical focus of attention on Ms Maxworthy by the Shaws. Mrs Shaw referred disparagingly to it:
    • "... You have no right working for us running around with that shit bag hanging off you" (at [37] of AJM).
24. However I agree with Mr Weightman that, on the evidence presented, the presence of the colostomy bag itself was not an impediment to Ms Maxworthy's employment duties. No difficulties in this regard were reported in the period prior to the Shaws' takeover of the operation of the business.
25. Further, a distinction needs to be drawn between what is implicit in Mrs Shaw's comment reported above, and whatever inferences may be drawn from that about Mrs Shaw's (and for that matter Mr Shaw's) view of the applicant's presentation, and an objective assessment of whether the colostomy bag itself was an impairment to Ms Maxworthy's capacity and the actual performance of her duties in her employment.
26. There is nothing to show that the wearing of the bag impaired her performance while working for the Shaws. Nor indeed is there any evidence to show that the bag itself affected her subsequent work performance with the Taree-Wingham Race Club Limited (see [40] - [42] of AJM). On the evidence presented, her inability to continue in that employment was for reason other than the wearing of the bag.
27. Turning, therefore, to the comparator, Ms McQuilty and Ms Cooper were also at various times employed by the Shaws at the Taree Lunch Spot.
28. When the Shaws decided to expand the business ([9] of AJM), Ms Maxworthy was asked to drive a van which provided a mobile food service delivery to local businesses. Ms Maxworthy was initially asked to work three days per week ([12] of AJM). This was increased two weeks later to five days per week ([13] of AJM).
29. Ms Maxworthy's evidence is that Mr and Mrs Shaw told her that, based on their experience, the mobile van operation requires "two women" because "the work is too physically taxing to be done by one person all week every week" ([13] of AJM).
30. In this regard the Shaws arranged Ms McQuilty to share this work with Ms Maxworthy ([16] of AJM).
31. One week later Ms McQuilty was removed from the van driving duties, said to be because of concerns and complaints about her performance. It appears, however, that alternative duties were provided to her.
32. Sometime in late 2007 the Shaws employed Ms Cooper. It was intended that she would be assigned to the mobile van duties and Ms Maxworthy was instructed to train her in the relevant duties ([18] of AJM). The intention was that she and Ms Maxworthy would share these duties on an alternating basis. However, this intention was never fulfilled. Ms Cooper was assigned other duties at the business and continued to be employed by the Shaws (see [21] - [22] of AJM).
33. There is no evidence before the Court that either Ms McQuilty or Ms Cooper suffered from Crohn's disease, or indeed from any other of the applicant's medical conditions. That is, they did not have Ms Maxworthy's disability.
34. It is important to note that Ms Maxworthy's original duties were to work in the shop premises on two days per week, three hours per day (from 11.30am), preparing hot takeaway food and sandwiches ([5] of AJM). This continued for some little time after the Shaws took over the operation. After this time, the Shaws introduced the mobile van as part of the operation of the business. This necessitated different and increased work hours for the applicant.
35. The evidence is that (other than for one incident involving damage to the van) the Shaws were complimentary of the applicant's work performance for most of the relevant period.
36. The applicant suffered from a disability. Others who did not suffer from any disability, let alone this disability, were treated differently (and favourably) in relation to the applicant, even to the extent that one of them had been reported for poor performance of her duties and yet the employers continued to employ her.
37. Unlike these others, Ms Maxworthy was not offered any alternative work opportunity. Promises in this regard were not honoured ([17] of AJM). In fact, the Shaws continued to apply increasing pressure on her.
38. The evidence is that the mobile van part of the Shaw's operation became successful through Ms Maxworthy's efforts ([16] - [17] of AJM). The Shaws response, leading up to Christmas 2007, was to seek that Ms Maxworthy work further hours. In early 2008 that pressure increased with the applicant being asked to drive the van five days a week commencing at 7.00am (a lot earlier than her previous starting time).
39. The evidence is that the increasing hours, the pressure from the Shaws, the ill-treatment by them (manifested by accusations of damaging the vehicle and being "slack", while otherwise being praised for her work), the lack of appropriate support for her duties and the general atmosphere of unfriendliness displayed by the Shaws, led to the exacerbation of her Crohn's disease symptoms, and led her to become "unwell".
40. On 4 February 2008, when she reported that she was ill, Mrs Shaw refused to speak to her. This and consequent unsuccessful attempts to contact the Shaws led to a further escalation of the medical symptoms ([27] of AJM).
41. Ms Maxworthy had a conversation with Mrs Shaw (to which Mr Shaw at least listened) on 6 February 2008. She advised that she was unwell due to the exacerbation of symptoms from Crohn's disease. Mrs Shaw is reported to have been understanding and to have allowed a period away from work ([29] of AJM).
42. Despite promising to call her earlier, Mrs Shaw telephoned Ms Maxworthy on 13 February 2008. Ms Maxworthy advised that she wanted to return to work. Mrs Shaw told her she would call her two days later ([34] of AJM). Ms Maxworthy wrote to the Shaws and requested a date for return when that did not occur ([35] of AJM).
43. It was not until 19 February 2008 that Ms Maxworthy spoke to Mrs Shaw ([37] of AJM). The account of the conversation (albeit unchallenged before the Court) and the attendant circumstances allow inferences to be drawn that a person without the disability would have been treated differently to the way the Shaws dealt with Ms Maxworthy.
44. First, the absence of one week from work was initially agreed to by Mrs Shaw.
45. Second, Mrs Shaw avoided speaking to the applicant on at least two occasions.
46. Third, in the circumstances, and on balance, Ms Maxworthy did not abandon her employment. Mrs Shaw's communication with her on 19 February 2008 ([37] of AJM) in essence constitutes "notice" of dismissal by the Shaws.
47. Plainly the Court can only proceed on the evidence that is ultimately put before it. I agree with Mr Weightman that on that evidence a person who was not suffering from Ms Maxworthy's disability would have been treated differently by the Shaws. Plainly Mrs Shaw saw Ms Maxworthy's conditions (including her other illnesses - see for example the reference to her eye condition at [37] of AJM) as being the distinguishing factors as to how she would otherwise treat with other people whom she described as "reliable".
48. I agree with Mr Weightman that, in the circumstances, a person who was absent from work for one week (and without Ms Maxworthy's disability) would have been treated differently. The Shaws' repeated disparaging remarks about the applicant's symptoms make that clear. In these circumstances it is appropriate to draw the inference that the Shaws discriminated against Ms Maxworthy because of her disability. That is her suffering from Crohn's disease.
49. The applicant also complains that her employment was terminated by the Shaws because of her disability.
50. The Court is required in these circumstances to consider the true basis or the real reason for the Shaws' alleged discrimination. (See Purvis at [13], [166] and [236].)
51. Again, this is in the context of a comparator displaying the same behaviour as Ms Maxworthy, but without the disability. Not a person without the disability or the behaviour (Zhang v University of Tasmania [2009] FCAFC 35).
52. The evidence before the Court is such that the Court can be satisfied on balance that the applicant was dismissed from her employment not because she absented herself from work, but because she carried a colostomy bag which was one physical manifestation of Crohn's disease, and had other more visible signs of her various medical conditions (eg dry eyes etc).
53. There is evidence that Mrs Shaw, at least, acknowledged that customers had "nothing but praise" for Ms Maxworthy ([20] of AJM). This is to be balanced however with the Shaws' treatment of Ms Maxworthy, their duplicitious conduct in advertising for her position not with a view to finding a second person to assist with the mobile van, but to replace her.
54. Ms Maxworthy's evidence as to why she did not return to work on 11 February 2008 ([32] of AJM) is problematic. If she intended to return and had made arrangements for childcare, her explanation that she did not in fact return because she did not receive a telephone call from Mrs Shaw is questionable. That part of her evidence (the last sentence at [32] of AJM) is unclear. There may be some missing words, but this was not satisfactorily explained in her oral evidence.
55. In this sense, part of Mrs Shaw's reported conversations with her can in part be explained in that, from Mrs Shaw's persepctive, Ms Maxworthy was absent from work but made no real attempt to speak to them. For example, it is not clear why she telephoned them at home and said she left messages ([33] of AJM - 12 February 2008), but apparently made no real attempt to contact them at their place of business. The far more obvious and appropriate place to seek to contact them. There is plainly no evidence that the relationship between the Shaws and Ms Maxworthy was one of friendship. On the evidence, it was a business, employer/employee relationship. In these circumstances a telephone call to the work site would have been far more appropriate and perhaps, given the evidence that others worked there, should have been seen as a far more likely opportunity to get a message to the Shaws that she wanted to return to work. In these circumstances, it is not perhaps so surprising that, by 17 February 2008 ([37] of AJM), Mrs Shaw felt that Ms Maxworthy had abandoned her employment.
56. Had it not been for four other factors, the balance as to the real reason for the employment termination would not have swung in Ms Maxworthy's favour.
57. First, the reported conversation of 13 February 2008 ([34] of AJM). Plainly, by this time the Shaws had advertised the position. This was Mrs Shaw's opportunity to clarify the situation with Ms Maxworthy, and to tell her when she could return. She did not do so.
58. Second, and compellingly, Mrs Shaw's reference to the colostomy bag in depracating terms ([37] of AJM). She left Ms Maxworthy, and now the Court, in no doubt that Ms Maxworthy's employment was terminated because of the Shaws' view about, and perception of, this physical manifestation of Ms Maxworthy's disability.
59. Third, the inconsistent attitude of Mr Shaw. In spite of telling Ms Maxworthy initially (before Christmas 2007) that: "We really want you to work for us" ([14] of AJM), and applying pressure on her to build up the business in circumstances where he knew she would have to give up her other part time job to do so, he then made it clear that he would terminate her employment if she did not comply with his wishes ("... If you don't want to do what I am asking you won't have a job" - [19] of AJM). The Shaws accepted that her customers were happy with her service, and while being accomodating to other employees with no disabilities provided no such understanding towards Ms Maxworthy and her condition.
60. Ms Maxworthy did ultimately write to the Shaws about her return to work. In these circumstances her waiting for a telephne call from Mrs Shaw, her not contacting them at their place of business, can be explained in the context of her relationship with her employers. One of being fearful of them and avoiding confrontation.
61. I therefore agree with Mr Weightman that Ms Maxworthy was (at [62] of written submissions):
    • "...
      • a. Denied the benefit of being able to work in the shop as opposed to working full-time in the mobile van, (DDA section 15(2)(b));
      • b. Terminated, (DDA section 15(2)(c));
      • c. Subjected to detriment in the form of insulting treatment, (DDA section 15(2)(d))."

That is, Mr and Mrs Shaw engaged in direct discrimination in relation to Ms Maxworthy and her employment.

1. Given this finding, it is not necessary, and indeed it would be inappropriate, to consider the claim of indirect discrimination.
2. Ms Maxworthy also asserts harassment by the Shaws within the ambit of s.35 of the DDA. However I agree with Mr Weightman's fair concession, that in circumstances where harassment envisages something more than just one occurrence, that is repetitious conduct or behaviour (Penhall-Jones v State of NSW [2008] FMCA 832), and where the only evidence of harassment was the disparaging comment about the colostomy bag, then such a claim cannot be properly pressed.

1. Ms Maxworthy also makes claim pursuant to s.14 of the SDA. In particular, that her employment was terminated by reason of her family responsibilities (with reference to s.14(2)(c) and s.14(3A)).
2. I note relevantly the provisions of s.7A of the SDA (see [14] above).
3. The relevant approach to this complaint mirrors the approach set out above in relation to the termination of the employment and the DDA.
4. Section 7A requires regard to be had to a comparison between Ms Maxworthy and another person who does not have family responsibilities. But again, in the same or at least not materially different circumstances.
5. Again, the real reason for the alleged discriminatory acts is at the heart of the relevant test (Purvis).
6. The relevant comparison in the circumstances would be to an employee occupying the same position and performing the same duties, an otherwise well regarded employee, and an employee with the requirement that the relevant work hours remain unchanged.
7. Ms Maxworthy had at the relevant time four children, two of whom were of school age, and one other of whom was living with her. She was a single parent ([3] of AJM). The number of hours employment and the timing of those hours was an issue given Ms Maxworthy's "childcare responsibilities" ([17] of AJM).
8. The evidence is that both the Shaws equated availability for work at the increasingly expanded hours set by them as being an indicator of reliability, rather than necessarily consistently working the hours initially agreed, providing a service regarded by customers as complaint free and expanding the business.
9. A very short time after the Shaws took over the business the agreement, although not specified in writing, was to work three days per week driving the mobile food delivery van from 8.30am to 1.00pm without a break. These hours were already greater than those worked by Ms Maxworthy up to, and as at, the takeover of the business.
10. Mr Shaw sought to increase these hours even further, to five days per week ([13] of AJM). Following the success of this part of the business, for which, on the evidence, Ms Maxworthy was responsible, Mr Shaw started to exert pressure on her to commence at 7.00am and work until 2.30pm ([17] of AJM).
11. On the evidence, while the job was, as recognised by the Shaws, too physically demanding for one person (particularly as it involved no breaks) they still expected the applicant to work these hours, even being cognisant of her family responsibilities. Mr Shaw saw the difficulties posed by her responsibilities in getting children ready for school in the morning as part of "being slack" ([19] of AJM).
12. Mr Shaw was further on notice that complying with the request for a 7.00am start would require Ms Maxworthy to drive some distance each day to leave her school age children with her parents. A further imposition on her and the children.
13. Yet again he saw this as being "slack" in her attitude and as expecting others to do her work for her. The ultimatum was that: "... If you don't want to do what I am asking you won't have a job" ([19] of AJM).
14. Mrs Shaw's comment about the need for "reliable people" at the time of telling Ms Maxworthy she no longer had a job does echo Mr Shaw's earlier comment linking reliability to starting at 7.00am even in the face of competing family responsibilities ([37] of AJM).
15. Mr Weightman advances two propositions under the SDA. The first is to assert that Ms Maxworthy's employment was terminated by reason of her family responsibilities. This conduct by the Shaws is said to be unlawful by virtue of s.14(2)(c) and s.14(3A) of the SDA (see [15] above).
16. With reference also to s.7A of the SDA (see [14] above), Ms Maxworthy claims that she was treated less favourably than a person without family responsibilities.
17. The second proposition is that, with reference to s.5 of the SDA (see [13] above), Ms Maxworthy was discriminated against on the basis of her sex due to her childcare commitments (with reference in particular to s.5(1)(c) of the SDA).
18. Both propositions rely on the application of the comparator test already discussed above in the context of the DDA.
19. Dealing first with the termination of her employment, what is required, again, is to ascertain whether the real reason for the termination was because of Ms Maxworthy's competing family responsibilities.
20. I should just note, to avoid confusion or charges of inconsistency, the provisions of s.10 of the DDA and s.8 of the SDA. They are in the following terms:
    • "Section 10 [DDA]
    • Act done because of disability and for other reason
    • If:
      • (a) an act is done for 2 or more reasons; and
      • (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
    • then, for the purposes of this Act, the act is taken to be done for that reason."
    • "Section 8 [SDA]
    • Act done for 2 or more reasons
    • A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act."
21. I have already found that, for the purposes of the DDA, the real reason for the termination of her employment was her disability. However, given the provisions set out above, it is not inconsistent or inappropriate for the Court to also find that, for the purposes of the SDA, the real reason for the termination of employment was because of the applicant's family responsibilities.
22. The appropriate comparator in the circumstances of this case is another person employed by the Shaws at the relevant time, performing the same, or not materially different, duties, who is generally well-regarded, and who requires their hours of attendance at work to remain unchanged from what may have been originally agreed, or who requires some flexibility in setting work hours. Such a person, however, is a person who does not have family responsibilities or does not require the arrangement of work hours for reason to do with family responsibilities.
23. It is the case that if regard were had only to what Mrs Shaw was reported to have said to Ms Maxworthy on 19 February 2008, effectively the date of the notice of termination of employment ([37] of AJM), and based generally on the words used, an argument may be raised that the termination of employment was for reason of her disability, and not for any family responsibility. Mrs Shaw made specific reference to Ms Maxworthy's medical condition. (The colostomy bag and the serious eye disease.) However, this conversation must be seen and understood in context.
24. First, in this regard Mrs Shaw's use of the words: "... We need reliable people" clearly echoes and is consistent with Mr Shaw's reported view of what was meant by the term "reliable people" in the work context.
25. On her first day back at work in 2008, Mr Shaw linked the notion of her being "slack" to her not being able to start work at 7.00am. Ms Maxworthy made it clear that her reluctance to commence work at that time was specifically linked to her family responsibilities concerning her school age children.
26. That her medical condition was not the relevant consideration in this regard is clear in that for a period within the school holidays Ms Maxworthy complied with the Shaws' wishes and commenced work early. That she could not do so in school term time emphasises the family responsibility reason.
27. Second, Mr Shaw specifically linked the need for her to start at 7.00am at all times to her retaining her employment: "... If you don't want to do what I am asking you won't have a job" ([19] of AJM).
28. On the evidence presented, Mr Shaw, at best for him, seemed oblivious to Ms Maxworthy's family reasons for not wanting to start at 7.00am. At worst, he displayed a disregard for her circumstances ([17] and [31] of AJM).
29. This insistence on his part must be seen in light of the praise that the Shaws received from customers about Ms Maxworthy's work ([20] of AJM).
30. Mr Shaw's attitude must also be seen in light of the understanding and accommodation displayed towards other employees, not only as to the time worked, but accepting that they did not want to work delivering food in the mobile van ([21] and [22] of AJM).
31. In all, therefore, I accept that the applicant was the subject of discrimination in accordance with s.7A of the SDA, and that for the purposes of that Act she was dismissed because of her family responsibilities. This was unlawful discrimination under s.14(3A).
32. Ms Maxworthy also complains, pursuant to s.5 of the SDA, that she has, in the same circumstances set out above, been discriminated against on the basis of her sex (SDA s.5(1)(c)) and in requiring her to work longer hours discriminated against the applicant in the course of her employment (s.14(2)(a) and s.14(2)(d)).
33. Mr Weightman's argument is that, on the basis of the relevant comparator, Ms Maxworthy was discriminated against because of her childcare commitments. This was said to be a characteristic appertaining generally to women, and therefore the discrimination was on the basis of her sex (s.5(1)(c) of the SDA).
34. Mr Weightman asks the Court to take judicial note of Howe v Qantas Airways Ltd [2004] FMCA 242; (2004) 188 FLR 1 ("Howe") at 146 (see written submissions at [85]):
    • "[112] On the other hand, Ms Nomchong, at paragraph 4.9 of her written submissions in reply submits that notwithstanding recent advances and societal attitudes, it is open to the Court to take judicial notice that as a matter of common observation, women have the predominant role in the care of babies and infant children (including breastfeeding) and that it follows from this that any full time work requirement is liable to disproportionately affect women. I agree. Ms Pepper, on behalf of the Sex Discrimination Commissioner, makes the same point at paragraph 16, 17 and 18 of her supplementary written submissions. I agree with and respectfully adopt those submissions. Further, the ABS Labour Force data, cited by Ms Pepper at paragraph 17 of her supplementary written submissions, shows that in 1978 more than 751,000 women in Australia worked part time compared to 208,500 men. In 2003 almost 2 million women worked part time, compared to 772,000 men. The data shows that overall the proportion of women in the workforce increased over that 25 year period but the proportion of women in the part-time workforce hardly changed at all. I find that in Australia, women predominate in the part time work force."
35. What must be noted is that Ms Maxworthy was a single parent ([3] of AJM). Her difficulties were compounded by the circumstance that, other than for her parents, there was no one else in the circumstances who could assist with her family child care responsibilities ([19] of AJM).
36. This does not mean that what was said in Howe has no relevance to these current circumstances in terms of its application to Ms Maxworthy as a woman.
37. But the circumstances of this case are far stronger for Ms Maxworthy. She was in fact the predominant care giver for her children. In reality there was no other person to undertake this role for them. Plainly her parents were of a useful assistance, but the predominant role fell to her.
38. The relevance of what was said in Howe is to bring Ms Maxworthy's circumstance as a woman who had the predominant role as the child care giver within the ambit of s.5(1)(c) of the SDA.
39. The Shaws were plainly aware that Ms Maxworthy had care responsibilities for her school age children. When they took over the business, and indeed at the time immediately on her working for them, as opposed to the previous owners, Ms Maxworthy worked hours consistent with and accommodating of her childcare responsibilities.
40. While being accommodating to other women (though it is unknown whether or not they had childcare responsibilities themselves) who did not want their work conditions and hours changed, the Shaws sought to impose changed working conditions on Ms Maxworthy, in particular longer working hours, resulting in family related difficulties for her.
41. In these circumstances, I accept Mr Weightman's submission that the Shaws unlawfully discriminated against Ms Maxworthy in the course of her employment (s.14(2)(a) in particular, and s.14(2)(d)).
42. Given this, it is not necessary to consider the submission in the alternative of indirect discrimination pursuant to the SDA.

1. I have found that Mr and Mrs Shaw discriminated against the applicant for reason of her disability, including the termination of her employment.
2. Orders of a declaratory nature were not ultimately pressed. However, in the circumstances, the Court is empowered to make orders awarding damages to the applicant (s.46PO(4)(d)) of the HREOC Act).
3. I accept the submission that, in any relevant assessment, the general principles of tort apply (Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217 ("Hall"), Stephenson v Human Rights & Equal Opportunity Commission (1995) 61 FCR 134 at 142, Ardeshirian v Robe River Iron Associates [1993] FCA 352; (1993) 43 FCR 475, Qantas Airways Ltd v Gama [2008] FCAFC 69 at [94], [122]).
4. The applicant has established that she was discriminated against by Mr Shaw on the basis of her disability.
5. I note the helpful review of relevant authorities and analysis provided by Raphael FM in Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 ("Gama") at [125] - [126].
6. In Gama, Raphael FM saw (in light of relevant authorities) an amount of $200,000 for general damages as being an appropriate and useful measure where the applicant had suffered a severe depressive illness which was contributed to by the discriminatory conduct and events (at [125]).
7. I agree with Mr Weightman that in this case the Shaws unlawful discrimination against the applicant because her disability had a significant affect on Ms Maxworthy, both at the relevant time and subsequently. That impact was not only in relation to her health, but also employment capacity and social engagement.
8. The report from Ms Pertot, clinical psychologist, as at September 2008, is clear that the fact of the termination of her employment, and more particularly the circumstances attendant on it, led to an exacerbation of Ms Maxworthy's pre-existing anxiety and depression. Relevantly, this had an impact on her level of confidence in employment and anxiety about making mistakes. It also affected her relationship with

co-workers. 9. The evidence since the date of that report, despite Ms Pertot's noting of Ms Maxworthy's motivation to overcome this problem, is that Ms Maxworthy was not offered employment by the Taree-Wingham Race Club after November 2008. Her confidence and capacity to deal with people was in issue. Her anxiety and fear obviously affected her work performance. 10. Ms Maxworthy worked at two jobs (the Lunch Spot and an Aged Care facility) prior to the Shaws taking over the business, and made attempts to accommodate the demands and pressures placed on her by the Shaws when they took over and sought to expand the business. She was initially successful, as was evidenced by the report given by Mrs Shaw of customer satisfaction. 11. The circumstances are that Mr Shaw in particular pressed the applicant to increase and change her work hours. This was done in the knowledge that to do so Ms Maxworthy would have to give up other part time employment and that she was fearful of not being able to work at all. 12. The evidence is that Ms Maxworthy suffered from a severe disability compounded by other medical conditions. She went from a person who was a functioning employee and who received satisfactory reports from customers to someone who could not maintain employment. 13. Mr Weightman also presses for an award of aggravated damages. He refers to Mrs Shaw's insulting remarks to the applicant (the deprecating and insulting reference to the colostomy bag when telling Ms Maxworthy that she was no longer employed). He relies on Hall. I note also Alexander v Home Office [1988] 2 All ER 118 ("Alexander"), Shiels v James [2000] FMCA 2 and Evans in support of this proposition. 14. Mr Weightman submits that the applicant should be awarded a substantial amount of general and aggravated damages as a consequence of the unlawful disability discrimination. 15. For current purposes, the award of damages arises from s.46PO(4) of the HREOC Act. I am satisfied, for the reasons set out above, that there has been unlawful discrimination by the respondent, Mr Shaw, towards the applicant, Ms Maxworthy. It is appropriate that an order awarding damages to her be made. There is nothing before the Court to cause the order not to be made. 16. The question however is the amount. Mr Weightman did not seek any specific amount, however his reference to Gama would place at least his starting point for consideration at $200,000. 17. Given the relevant language of s.46PO(4)(d), the damages are said to be "by way of compensation for any loss or damage suffered because of the conduct of the respondent". However, as was said in Gama (on appeal at [94]): "... 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". 18. In this assessment, I am informed by the authorities referred to by Raphael FM, his Honour's reasoning in Gama, and the Full Court's assessment of that reasoning and the other authorities referred to above. 19. Turning first to the amount by way of general damages. The respondent did discriminate against Ms Maxworthy because of her disability. The medical evidence is that this exacerbated her pre-existing anxiety and depression. Importantly, it did not cause it. That cause lies, on the evidence, in the burden imposed by Crohn's disease and Ms Maxworthy's other medical conditions, which clearly were not caused by the Shaws. 20. Having said that, however, Ms Maxworthy's anxiety and depression went from a position of being "manageable" before and immediately upon the takeover of the business by the Shaws, to such a state that she was unable to maintain employment (with another employer) following the discriminatory conduct. 21. On the other hand, there is little evidence before the Court as to the impact on Ms Maxworthy and her life beyond the impact on employment. Nor is there any medical evidence before the Court following the medical opinion provided as at September 2008. At that point, at its highest, the evidence was that Ms Maxworthy: "... notices she is less confident in her work, more anxious about making a mistake, and less outgoing with other workers, than she has in the past" (Annexure "A" to the affidavit of Ms Pertot). The reference in Ms Maxworthy's oral evidence to the impact on her social life was general and lacked sufficient detail. 22. It cannot be said that the medical evidence establishes a "severe depressive illness", as in the case of Gama (at [125]). Nor was this a case of years of abuse against Ms Maxworthy such that any severe depressive illness can be said to have resulted for that reason (Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618; (2005) EOC 93-408). Nor for that matter is this a situation such as where $125,000 was awarded relevantly for discrimination in employment where the applicant suffered "extreme" depression, stress and anxiety "culminating in a complete breakdown and suicide attempts" (McKenna v The State of Victoria [1998] VADT 83 as referred to at [125] of Gama - Note also the amount was not altered on appeal in State of Victoria and Ors v McKenna [1999] VSC 310). 23. Ultimately, however, care must be taken not to descend into some mathematical calculation derived solely from what was done in other cases. As general tort principles apply, each case must be decided on its own merits, with specific reference to the elements in each case, and being cognisant of general community standards. 24. As against such consideration, in assessing the "tort" committed and the consequences, care must be taken to focus on the conduct of the Shaws, their actions and the impact of their actions on Ms Maxworthy, and not be swayed by a focus on Ms Maxworthy's undoubtedly difficult and serious medical conditions, for which the Shaws were plainly not responsible. 25. While this is the starting point, the principles of tort should not be applied inflexibly, as explained in Stephenson v Human Rights & Equal Opportunity Commission (1995) 61 FCR 134. 26. The Shaws exacerbated her anxiety and depression, which had an impact on her employment. While there is a reference to her being "less outgoing" in the medical evidence, this was again put in the context of her employment (her co-workers). There is little evidence as to the impact on her life beyond her employment situation. 27. The only other relevant (but highly so) evidence is that given by Ms Maxworthy orally before the Court that before the conduct by the Shaws she had "no problem" with the colostomy bag, which she wore for some years. 28. Her evidence was that, after the intervention by the Shaws, she became "mentally shy" about the bag, and did not go out socially. Ms Maxworthy is in her early forties. Such an impact on a person of that age is, in my view, of greater significance. 29. There is, therefore, evidence of an aspect of diminished self-worth, although in the non-employment context not confirmed by the psychological report. I note that such diminution was found to be a relevant factor in assessing damages in Haar v Maldon Nominees [2000] FMCA 5; (2000) 184 ALR 83 (per McInnis FM). In the circumstances of that case $3,000 was awarded for this type of non-economic loss. 30. Ms Maxworthy certainly suffered injured feelings and distress as a result of the Shaws action. In similar circumstances, Raphael FM awarded $10,000 (in 2002) for hurt, humiliation and distress suffered as a result of discriminatory conduct (Randell v Consolidated Bearing Company (SA) Pty Ltd [2002] FMCA 44). 31. In Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931, Smith FM found that certain features in that case demanded compensation at the "upper level" of appropriate awards. This case involved a nurse suffering from epilepsy who was subjected to pressure to work a certain pattern of hours that was not commensurate in assisting with the management of his epilepsy. Such a pattern had been agreed by the employer and then withdrawn. Federal Magistrate Smith awarded $15,000 in these circumstances as general damages. 32. This, while different to the current circumstances, has some resonance. Ms Maxworthy wanted to work a certain pattern of hours, which at least constructively had been initially agreed to by the Shaws. While they were accomodating with other employees in this regard, they increased pressure on Ms Maxworthy to comply with their wishes in circumstances where this made her ability to cope increasingly difficult. 33. In all, therefore, I am satisfied that an award of general damages should be awarded at the upper end of what the community would accept as being appropriate and having regard to what has been considered as appropriate awards in these types of cases. 34. In my view, an amount of $15,000 is appropriate having regard to all the circumstances referred to above. 35. I also agree with Mr Weightman that any such amount should be increased on the basis of aggravated damages given the behaviour of Mrs Shaw in acting in an insulting manner when committing the unlawful discrimination. 36. Mrs Shaw's comments to Ms Maxworthy on 19 February 2008 (the reference to: "... that shit bag hanging off you") was not only hurtful, but even on any objective basis demeaning and greatly insulting. That is, insulting in the context of discriminating against her. 37. Mr Weightman relies on Hall. I took this to refer to Hall at 239 per Wilcox J, who cited with approval the statement of May LJ in Alexander. That analysis plainly sets a balance that needs to be achieved between the difficulty in calculating damages for hurt feelings or humiliation, where awards should not be minimal, but on the other hand should be restrained, as "excessive" awards do: "... almost as much harm to the policy and the results which it seeks to achieve as do nominal awards". 38. In my view, the balance to be achieved would result, in the current circumstances, in an increase to $20,000 for general damages in the current circumstances. As Madgwick J said in Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121: "Damages are compensatory and no more" (at [83]. See also [84]-[86]). I do not understand them to be punitive. 39. The applicant also seeks damages in respect of the sex discrimination. It is conceeded in submissions that the impact here was not as profound as the disabilty discrimination. Mr Weightman's request was that this amount should be derived from the understanding of the hurt, humiliation and distress that this caused Ms Maxworthy. But even on this basis I have some difficulty, on the evidence, in accepting that the issue involving her family responsibilties caused humiliation or hurt. That may have been the case, but the evidence before the Court quite clearly established that the hurt and humiliation suffered by Ms Maxworthy arose from the conduct leading to the disability, not sex, discrimination. 40. However, I am satisfied on the evidence that the issue of her family responsibilities did cause her distress. Plainly, having to balance work pressures with getting children ready for school in the morning, the concern about having to take the children to her parents house (though it is not exactly clear on the evidence what this entailed) at an early hour, was, on the evidence, stressful. 41. This must also be seen in light of the contribution that her family responsibilities had on the conduct in particular of Mr Shaw, and then ultimately the contribution of this to her dismissal from employment. 42. In this regard, an amount of $5,000 is, on balance, appropriate. The ongoing impact of the sex discrimination was nowhere near that of the disability discrimination, and the amount set therefore needs to be seen in that context. 43. The applicant also seeks compensation for lost wages. Given what is set out above and noting that such a request is consistent with tort principles, it is appropriate that such an order be made. 44. As to the amount, the evidence is that the applicant was paid $19.50 per hour for 15 hours work per week. Further, that above 15 hours she wold have been paid $14 per hour. This appears to be a reference to an amount of non-taxed pay. (See [9] and [10] of AJM.) 45. While some of the evidence (at [12] of AJM) in this regard is unclear, what is clear is that the Shaws initially directed the applicant to work from 8.30am to 1.00pm for three days per week. While pressure was then applied for her to work further hours, it is unclear to what extent this was implemented. Mr Weightman's submission therefore that the Court should use a calculation of 13.5 hours per week is appropriate in the circumstances. This results in an amount of $263.25 as weekly wages. 46. I agree that this calculation should apply, particularly as it represents the starting time acceptable to the applicant (8.30am and not 7.00am), the time for which there is clear evidence that she actually worked per day, and similarly relates to three, not five days per week. 47. That amount taken, as Mr Weightman seeks, to the Court hearing date equals $35,538.75. It is appropriate that some discount should apply. Mr Weightman agrees that this should be commensurate with the amount of money earned by Ms Maxworthy with the Taree-Wingham Racing Club after she left the Shaws employment. With reference to [40] of AJM and annexures "G" to "M", that amount is $2,144.25. In all, therefore, the amount equals $33,394.50. 48. The applicant also seeks interest pursuant to s.76(3) of the Federal Magistrates Court Act 1999 (Cth) ("the FMCA Act"). That is, interest on the amount awarded for loss of wages from the date when the course of action arose to the hearing date (18 February 2008 to 20 September 2010), and from the date of hearing to the date of judgment entry. 49. There is nothing before the Court to argue that there is good cause not to make such an order. It is the case that the hearing was postponed in this case due to the (understandably, for some part of the time) inability of Mr Shaw to attend to his response in these proceedings. However, the applicant should not be disadvantaged in this regard. Had Mr Shaw attended in a more timely fashion (when appropriate), Ms Maxworthy would have been in receipt of judgment (one way or another) at an earlier time. 50. However, given that it is not possible to discern with any certainty in the circumstances when Mr Shaw could be said to have been reasonably in a position properly to respond to the application, it is appropriate to proceed pursuant to s.76(3)(d) of the FMCA Act. In these circumstances, an amount of $5,000 should be included in the judgment amount in lieu of this interest. 51. The applicant also seeks interest pursuant to s.77 of the FMC Act. That is interest from the date on which judgment is enterred (s.77(3)). 52. It is appropriate that such an order be made in the current case. Given the circusmtance that Mr Shaw's exact whereabouts remains unknown, and having regard to the difficulties encountered by Ms Maxworthy's solicitors in tracing Mr Shaw's whereabouts, the time when Ms Maxworthy may be in a position to actually obtain the amount awarded to her may be some time in the future. She should not be disadvantaged because of Mr Shaw's avoidance of these proceedings. 53. The relevant rate of interest is that set out in Order 35, r.8 of the Federal Court Rules. 54. The applicant also seeks certification that it was reasonable to engage counsel to appear in these proceedings pursuant to r.21.15 of this Court's rules. 55. The relevant test is one of reasonableness. While Mr Shaw did not appear at the hearing, and there was every indication that he would not, it was nonetheless reasonable for the applicant to engage counsel. The applicant would have been at great disadvantage in representing herself, if for no other reason than for the circumstances referred to above as to her medical and psychological state. 56. Further, counsel's submissions were most helpful in assisting the Court in clarifying aspect's of Ms Maxworthy's case and circumstances. While there is no doubt that Mr Morris, her solicitor, could have acted in a highly competent manner, the invovlment of Mr Weightman was appropriate to ensure the presentation of the case in the manner which eventuated. The arguments relating to relevant law also benefited from the invovlement of counsel. 57. It is appropriate that such a certificate be granted, and I will do so. 58. Finally, it is appropriate that an order for costs be made in this matter. There is nothing before the Court to persuade me it should not be made in the normal course of events.

I certify that the preceding 212212two hundred212212twelveforty-ninetwo hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Nicholls FM