Oberoi v HREOC - [2001] FMCA 34

Disability Discrimination Act 1992 (Cth) ss. 5, 24,122

Racial Discrimination Act 1975 (Cth) ss. 9, 13, 18A

Elliot v Nanda & Commonwealth [2001] FCA 418 discussed

Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180; (1999) 93 FCR 481 referred to

Adelaide City Corporation v Australian Performing Arts Association Ltd [1928] HCA 10; (1928) 40 CLR 481 referred to

Tadawan v State of South Australia [2001] FMCA 25 referred to

Bradshaw v McEwans Pty Ltd (1951) unreported High Court of Australia referred to

TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 referred to

X v McHugh, Auditor-General for the State of Tasmania (1994) EOC 92-623 discussed

Shiels v James [2000] FMCA 2 I referred to

Harwin v Patulech No H94/40 before Commissioner Kevin O'Connor 21 August 1995 referred to

Smith v Buvet & Anor (1996) EOC 92-840 referred to

McKenna v State of Victoria & Ors (1998) EOC 92-927 considered

State of Victoria v McKenna [1999] VSC 310 considered

Cachia v Hanes & Anor [1994] HCA 14; 120 ALR 385 followed

Respondent: Human Rights and Equal Opportunity Commission

Solicitors for the Applicant: Mr Rajiv Oberoi in person

Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor

1. Claim under ss. 9, 13 and 18A of the Racial Discrimination Act dismissed against all respondents.

2. Claim under ss. 5, 24 and 122 of the Disability Discrimination Act upheld against the first and second respondents, dismissed against the third and fourth respondents.

3. First and second respondents to pay the applicant the sum of $20,000 by way of damages.

4. The first respondent through its President to provide an apology to the applicant, the provision of the apology to be stayed pending the time limited for any appeal against this decision and pending the decision in any appeal that may be made against this decision.

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

1. Mr Oberoi brings this claim against the Human Rights and Equal Opportunity Commission and two Review Commissioners Peter Johnston and Kathleen McEvoy as well an employee in the legal department of the Commission Susan Roberts. The claim arises out of the alleged conduct of Mr Johnston when considering a complaint made by Mr Oberoi of racial discrimination against another officer of the Commission, a Mr Beale. Mr Oberoi alleges that Mr Johnston wrongfully discriminated against him by dismissing the complaint and in particular says:

(a) that the conclusion reached by Mr Johnston that "on the materials before me there is, however, insufficient evidence to suggest that the comments which you attribute to Mr Beale were made by him" was made on the basis that because of the disability from which Mr Oberoi suffered, namely depression, he was a person whose statements were less believable than a person who did not suffer from that disability. Mr Oberoi alleges that this resulted in less favourable treatment being given to him than to a person who did not suffer from that disability.

(b) The inescapable inference to be drawn from the treatment of Mr Oberoi was that his complaints did not succeed because, at least in part, he was a person of South Asian ethnicity.

2. Mr Oberoi was an employee of the AMP Society. On 20 December 1996 his employment was terminated. On 18 June 1997 Mr Oberoi lodged a complaint under the Racial Discrimination Act against the AMP Society. That complaint was assigned first to Ms Brimson and on 16 September 1997 to Mr Beale. Mr Beale was a conciliation officer with the Commission and he took the complaint to a conciliation on 19 March 1998. That conciliation failed. It was the alleged conduct of Mr Beale in relation to that conciliation which formed the basis of a complaint on 15 June 1998 to HREOC that it, through the agency of Mr Beale, had discriminated against Mr Oberoi on a number of grounds including his disability. On 28 September 1998 the complaint against the AMP commenced hearing but on 29 September 1998 it was withdrawn. The complaint of 15 June was made under the Disability Discrimination Act. On 28 October 1999 a similar complaint was made under the Racial Discrimination Act. These complaints were dismissed by Commissioner Johnston on 8 October 1999 and that decision was reviewed by the third respondent Kathleen McEvoy and dismissed on 3 April 2000. On 3 October 2000 Mr Oberoi made the complaint under the DDA and the RDA against Commissioner Johnston which was terminated by the President on 23 October 2000 and forms the subject matter of these proceedings.

3. It should be made clear at this point in the Judgment that it is not the conduct of Mr Beale that is the subject of these proceedings and the court is not asked to make any determination on whether he acted towards Mr Oberoi in the manner complained of.

4. The allegation against Commissioner Johnston under the Disability Discrimination Act requires a reading of his decision of the 8 October 1999 in conjunction with an e-mail of 5 October 1999 sent by Mr Johnston to Susan Roberts, the fourth respondent. The whole of the e-mail is set out below:

"Susan, my papers are at home so I don't have my notes but to get you started on a draft to reflect my conclusions they run along the following lines. I am of course very appreciative of the difficulties Mr O has had in formulating his complaint. His state of depression affects both how he has perceived the central incidents and remarks between himself and Mr Beale, and how he frames his allegations, not only against the latter but also other HREOC personnel such as Ms Temby.

His complaint was initiated against Hreoc because of 3 matters involving Mr Beale that he sees as having "racist" implications. (1) making a remark along the lines of "if you give it to one they'll all want it" (implying that Asian people will all be making inflated and unreasonable claims for compensation). If the remark was made it might well be construed as intended to convey a racist criticism entailing an unfavourable comparison between Asians and Australians. It could therefore amount to unlawful discriminatory conduct in my understanding. However my view is that it is highly unlikely that Mr B did make the alleged remark. It is most likely that any comment made by Mr B was misunderstood. My one doubt is whether I can decline review without deciding the point. There may well be a case for letting Mr B clear his name, given the serious and defamatory nature of the allegations. My view is that this matter should not proceed further (arising from a strong perception that this aspect of the complaint will almost certainly fail). It will almost be beyond realistic possibility that a commissioner will be satisifed that the remark was made in the terms alleged but that might involve me making an assessment of credibility, foreclosing a determination that should lie with a commissioner at hearing. (2) treating the C. rudely ("Ramming precedent down my throat") and stopping him making a claim for a much larger amount of compensation than Mr B thought appropriate. This again is capable of being in breach of the RDA if it entailed adverse differential treatment based on Mr O being Indian or Asian and not deserving proper compensation. I have no doubt that the figures he put forward were totally unrealistic but if Mr B was telling him that they were too high I am puzzled why someone as assertive as Mr O and so articulate could not have ignored Mr B's advice. It is not credible in my view that Mr O was unable to proceed even if he resolutely refused to give in to Mr B.

(3) To the extent that Mr O maintains his complaint that Mr B scheduled a morning conciliation session adversely to C's health interests I also find this to be something that is so unlikely as not to be plausible; and again, though this is a matter of credibility in the end, I am inclined to decline review. I should add that I find his comments about Ms Temby lack any ??? completely but in any event do not regard them as properly ??? as part of his complaint against the HREOC. His wide sweeping allegations about the commission being more stringent towards sex discrimination complaints than racial also seems to me to lack any plausible justification. The odd instances of awards he cites establish nothing by way of precedent. I would therefore lean towards decline in all respects save for my misgivings about whether I can do so if there are unresolved issues turning on credibility and whether a particular statement was actually said (even if I think it was on balance not said). I would appreciate your guidance on these issues and would be happy if you could draft something to reflect my thinking. Peter J."

5. The critical parts of that e-mail are those where Commissioner Johnston makes reference to Mr Oberoi's state of depression and the effect it has on his perception of the central incidents and remarks between himself and Mr Beale and the consideration Commissioner Johnston gives to whether those remarks are credible and the effect of them if they were. The Commissioner clearly understood that there was a dispute about credibility between Mr Oberoi and Mr Beale and that in the normal course such a dispute should be considered by a Hearing Commissioner. However, that did not occur; in his decision Commissioner Johnston said "On the materials before me there is, however, insufficient evidence to suggest that the comments which you attribute to Mr Beale were made by him."

That conclusion was drawn by the Commissioner without hearing either party. Mr Oberoi asks this court to draw the inference that the Commissioner's views on the credibility of the two protagonists was influenced by the existence of Mr Oberoi's depressive illness.

6. Mr Markus who appeared for the Commission and who gave the court considerable assistance conceded that if I found this inference it could amount to treatment less favourable than that which might have been given to a person without the disability and therefore constitute discrimination under s.5 and s.24 of the Disability Discrimination Act 1992.

7. In opening his case as a claim of discrimination under the Racial Discrimination Act Mr Oberoi argued that HREOC took complaints under the Sexual Discrimination Act more seriously than under the Racial Discrimination Act. This, he said, created a negative atmosphere for people trying to prove racial discrimination. He felt that the barriers for persons trying to prove racial discrimination were being set higher than for those trying to prove sexual discrimination.

8. Mr Oberoi went on to argue that he received less favourable treatment from Mr Beale on the grounds of his race. But he said that his allegation was not against Mr Beale it was against the Commission. It was against the Commission for declining to investigate his complaints by way of hearing and one of the reasons for this occurring was his race.

9. Mr Oberoi argued that I could infer racial discrimination from the cumulative effects of the actions of the Commission which led to Mr Johnston giving credibility to Mr Beale over Mr Oberoi with the result that Mr Oberoi did not get an independent and impartial decision despite his pleas.

10. Mr Oberoi at my request produced a list of documents which he submitted would cumulatively allow me to draw the necessary inferences. I was taken in turn to each of the documents. It is not necessary to describe them in these reasons save that, as Mr Markus pointed out in his final submissions, a large number of them emanated not from the Commission but from Mr Oberoi himself and represented Mr Oberoi's view of the occurrences about which he was complaining. This itself is not fatal to his claim because the documents may well have raised issues which would clearly need inquiry. If no inquiry was made then one possible explanation could have been the fact of Mr Oberoi's ethnicity.

11. Mr Oberoi produced two medical reports. The first was from a consultant psychiatrist Dr Khan.

Dr Khan stated that he first saw Mr Oberoi on 16 June 2000. He was referred by Dr David Bennett for the treatment of depression. The report then gives a detailed history of Mr Oberoi's complaints against HREOC. It also stated:

"According to the history which Rajiv gave me about his depression, he first began to experience mild symptoms of depression when he lost his job with AMP. This time he had not sought any medical treatment for his depression but had commenced taking St Johns Wort, a herbal anti-depressant for the symptoms of his mild depression. Rajiv felt that by the way Mr Wayne Beale treated him, he felt severely disturbed by the intimidation and harassment of Mr Beale. Following this intimidation he began to feel hopelessness, and as a result his symptoms of depression intensified.

When he came to see me he was suffering from sleep disturbance with early morning waking, severe agitation and more depressed moods from tiredness, from a loss of appetite, recent weight loss and poor concentration along with low libido. All these symptoms indicated to me that he was suffering from major depression. He did not show any evidence of thought disorder or psychotic thinking. There were no suicidal ideas. "

12. The report continues with history and then states:

"I have seen Rajiv in consultations once a fortnight and sometimes once a month to treat his depression and assess his progress. He is receiving anti-depressant Efexor 150 milligrams a day and there is partial improvement in his symptoms. However, he continues to be severely affected by his treatment by the Human Rights Commission and in every session that I have with him he discusses his thoughts and feelings about the way he was treated by Mr Beale and by the way Mr Peter Johnston perceived his depression to be.

In my opinion Rajiv Oberoi is suffering from major depression. ... In my opinion his depression began when he was dismissed from his job at AMP. It was a severe blow to his ego, especially because he felt that he lost his job under currents of racial discrimination."

13. The second report was prepared by Dr David Bennett, Mr Oberoi's treating Doctor. Dr Bennett's report is short and states as follows:

"Mr Oberoi has been suffering major depression and has been under the care of Dr Khan (psychiatrist). Mr Oberoi has adapted a very positive approach to his problem. He has taken up serious running as a sport as part of the therapy and this has been a great help. In fact his rehabilitation has been very impressive indeed."

CLAIM AGAINST SECOND, THIRD AND FOURTH RESPONDENTS

14. The second respondent is Peter Johnston the Inquiry Commissioner. It is his actions which are being impugned, acting on behalf of the HREOC. The report was issued under the auspices of the HREOC and as their agent. He was joined to these proceedings pursuant to section 122 of the Disability Discrimination Act which states:

122 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, for the purposes of this Act, is taken also to have done the act.

15. The third respondent Ms McEvoy reviewed the decision of Commissioner Johnston, and Mr Oberoi argues that by not overturning that decision she permitted Mr Johnston to do an act that was unlawful. The fourth respondent Ms Susan Roberts received the e-mail from Commissioner Johnston and assisted the Commissioner to prepare his reasons. Mr Oberoi submits that by not preventing Commissioner Johnston from issuing a determination based upon his discriminatory considerations she is likewise liable.

16. The e-mail of 5 October 1999 provides a unique insight into the state of mind of Commissioner Johnston before he prepared his decision on 8 October. The first paragraph of that e-mail clearly stakes out the position from which Commissioner Johnston approached the matter, that is:

"His state of depression affects both how he has perceived the central incidents and remarks between himself and Mr Beale and how he frames his allegations, not only against the latter but also other HREOC personnel such as Ms Temby."

17. It would have been perfectly legitimate for Commissioner Johnston to have taken this approach if he had any evidence of the facts he assumed. At no time during the course of these proceedings was I provided with any such evidence, medical or otherwise. Commissioner Johnston made the assumption based upon his reading of Mr Oberoi's correspondence and the responses put in on behalf of Mr Beale by the Commission. As the finding was not open to the Commissioner upon the evidence it can only have come about as the result of a view heavily influenced by the nature of the disability from which Mr Oberoi suffers. That is clear from the very words that are used.

18. Having decided, without evidence, that Mr Oberoi's disability affected his credibility the Commissioner proceeded to make findings that assumed that where the testimony of Mr Oberoi and Mr Beale might have been in conflict, that of Mr Beale would prevail. The result was that Mr Oberoi was denied a reference to a Hearing Commissioner and denied the opportunity to have his allegations against Mr Beale tested at an inquiry. This constituted less favourable treatment than would have been given to a person without Mr Oberoi's disability. I do not have to provide authority for this contention, which in any event I believe to be self-evident, because as Mr Markus quite rightly stated in words to the following effect:

"I have to accept that if the conclusion drawn by your Honour is that the reason why he wasn't believed was the evidence of his state of depression, that could establish discrimination."

19. Mr Markus submitted that what the Commissioner actually found was that the evidence was insufficient to establish the allegation against Mr Beale was made out. That is correct. On page 2 of the report the Commissioner says:

"On the materials before me, there is, however, insufficient evidence to suggest that the comments which you attribute to Mr Beale were made by him."

The e-mail gives the only reason available to the Court as to why the Commissioner made that decision, and it goes further. It identifies the Commissioner's real concern that where there is a conflict of evidence the appropriate step to take is to refer the matter to an Inquiry Commissioner. Mr Johnston even accepts that if the remark alleged by Mr Oberoi to have been made was made:

"It might well be construed as intended to convey a racist criticism entailing an unfavourable comparison between Asians and Australians. It could therefore amount to unlawful discriminatory conduct in my understanding."

20. Commissioner Johnston did not decline a reference to an Inquiry Commissioner because he did not believe that the words used could have been discriminatory, he declined the reference because:

"My view is that it is highly unlikely that Mr Beale did make the alleged remark. It is most likely that any comment made by Mr Beale was misunderstood."

21. The Commissioner goes on to recognise that the third complaint also involves a decision on credibility but does not proceed to refer the matter to an Inquiry Commissioner.

22. I have examined every single document referred to me by Mr Oberoi from which he submits I can draw the inference that his treatment must, at least in part, have been the result of views about his ethnicity.

23. In Tadawan v State of South Australia [2001] FMCA 25 at para 52 I discussed the drawing of inferences quoting the well known dicta of the High Court in Bradshaw v McEwans Pty Ltd (1951) unreported applied in TNT Management Pty Ltd v Brooks (1979) 23 ALR 345:

"Where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting evidence of equal degrees of probability so that the choice between them is a mere matter of conjecture ... but if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise ..."

24. None of the documents individually or collectively allow me to take this proposition beyond that of mere conjecture or surmise and I am unable to make the finding requested of me by Mr Oberoi.

25. The findings which I have come to are findings against (and in favour of) the first and second respondents. The finding which I have made against the first two respondents depends entirely upon the existence of the e-mail. When Commissioner McEvoy reviewed the decision of Commissioner Johnston there is no evidence whatsoever that she saw that e-mail. In the absence of the e-mail the relationship between the decision and Mr Oberoi's condition or disability would not have been clear. I do not believe that it can be said that by reviewing the decision without the benefit of the e-mail Commissioner McEvoy "permitted" the relevant discrimination.

26. The position with regard to Ms Roberts is slightly different. She was the recipient of the e-mail. I have found that the e-mail manifests Commissioner Johnston's error. But the error only became unlawful when Commissioner Johnston incorporated it into his findings and decision. He may have been assisted in producing this document by Ms Roberts, but the extent of that assistance is unknown. However, it is his own document. He must take responsibility for it. I am sure that Commissioner Johnston would not seek to lay off any responsibility upon Ms Roberts.

27. The responsibility of a "permitter" under section 122 of the Disability Discrimination Act 1992 (Cth) was considered in some detail in Elliot v Nanda & Commonwealth [2001] FCA 418, and in Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180; (1999) 93 FCR 481. In the latter case Madgwick J quoted from Isaacs J in Adelaide City Corporation v Australian Performing Arts Association Ltd [1928] HCA 10; (1928) 40 CLR 481 at 490-491:

"As an illustration, a person "permits" his hall to be used for the public performance of a play ... if he knows or has reason to know or believe that the particular play will or may be performed and, having the legal power to prevent it, nevertheless disregards that power and allows his property to be used for the purpose."

28. Madgwick J said that "the sort of approach outlined by Isaacs J seems to me to be appropriate here".

29. The discussion in Elliot v Nanda & Commonwealth assumed that one essential ingredient of "permitting" outlined by Knox J in Adelaide City Corporation, that the permitter has power to prevent the activity, must be present to establish that a person permitted an act in breach of section 122. The involvement of the Commonwealth in permitting the sexual harassment of Ms Elliot by Dr Nanda came about by its failure to act on information which was in its possession and thus prevent Ms Elliot from ever being employed by Dr Nanda.

30. There was very little evidence before me about the relationship between Commissioner Johnston and Ms Roberts, but from what little we do know (that she was a legal officer assisting him in the preparation of his reports) and from what I have said about the Commissioner as an independent person accepting responsibility for his own work, I would be reluctant to find that Ms Roberts had any power to prevent the Commissioner from coming to the views which he did and which I have found were in breach of the Act.

31. Mr Oberoi claims by way of relief damages, including aggravated damages, some special damage for the costs of sports equipment, an apology and a contribution towards the costs of bringing the proceedings such as photocopying and receiving some oral legal advice.

32. When considering the appropriate amount of damages to be awarded in a case of this nature it is necessary to have regard to the effect of the discrimination that has been found upon the applicant and then quantify that damage consistently with the authorities.

33. In coming to a view about the effect of the discriminatory actions upon Mr Oberoi I am conscious of avoiding the trap into which I have found that Commissioner Johnston fell. My views must be conditioned by the evidence which is before me and not by any personal diagnosis.

34. The evidence in this case consists of the two doctor's reports and the statements made by Mr Oberoi. To some extent these are in conflict because Mr Oberoi alleges that he was suicidal as a result of the actions of Commissioner Johnston, whereas Dr Khan seems to refute this. Certainly the evidence is that the actions of the Commission through its servants or agents exacerbated his depression, which he claimed was mild following the loss of his job at the AMP, but increased substantially following his involvement with HREOC. These problems are continuing and he has now been diagnosed as suffering from major depression by both Dr Khan and Dr David Bennett. This depression is being treated, and whilst I recall Mr Oberoi suggesting that part of the damages should consist of an award for loss of employability, he was not alleging that he was totally unable to work as a result of his illness.

35. In considering what is the appropriate measure of damages the Court must look at the symptoms rather than the cause. Mr Oberoi in his submissions made the point that damages awarded for racial discrimination have not measured up to those awarded for disability discrimination or sexual discrimination. I am not in a position to verify this allegation, although I notice that Commissioner Johnston did not accept it.

36. In Elliot v Nanda & Commonwealth Moore J dealt with compensation in paras 172-178. Ms Elliot was also a person who suffered "a major depression" and His Honour stated that:

"I am satisfied that the conduct of the respondent had a significant and negative impact on the applicant and the effect lasted for at least two years."

37. In that case his Honour awarded the applicant $15,000 by way of general damages.

38. In X v McHugh, Auditor-General for the State of Tasmania (1994) EOC 92-623 Sir Ronald Wilson acting as a Hearing Commissioner for HREOC awarded the sum of $10,000 to a complainant who was a paranoid schizophrenic prior to the complaint of disability discrimination being made. He suffered from pain, humiliation and stress as a result of the action of the respondent.

39. In Shiels v James [2000] FMCA 2 I said at para 79:

"The cases, including those previously cited, indicate a range for damages for hurt and humiliation of between $7,500 and $20,000. In the higher range of those judgments the activities complained of constituted either more physical action (Harwin v Patulech No H94/40 before Commissioner Kevin O'Connor 21 August 1995) or more substantial physical sequelae (Smith v Buvet & Anor (1996) EOC 92-840). Bearing these matters in mind and the dates upon which those cases were decided the Court is of the view that an appropriate award in this case would be $13,000."

40. Ms Shiels had brought medical evidence from a consultant psychiatrist Dr Parmegiani which indicated that she was also suffering from depression as a result of the activities in respect to which she had brought the proceedings.

41. In McKenna v State of Victoria & Ors (1998) EOC 92-927, a case upon which Mr Oberoi places considerable reliance, an award of $125,000 was made in favour of the applicant. In considering their award the Tribunal said:

The Tribunal accepts that the effects of the complainant's illness were grave. She had a lengthy period off work in 1995 following her departure form Bairnsdale and then returned to work but was in a vulnerable state throughout the time until the events of January/ February 1997 in Warragul. She was then off work until August 1997. During that period her condition was of such severity that she attempted to take her own life. However, after being admitted to Dandenong Hospital on 4 June and after recuperating at Linacre Private Hospital for two weeks she commendably returned to work in August to find the predictions of the medical practitioners ...

The Tribunal is also satisfied that the complainant [has] as a result of the respondent's unlawful actions was exposed to considerable pain and suffering, to debilitating physical symptoms, to mental breakdown, to humiliation, loss of self esteem and of self confidence, and to loss of normal enjoyment of her professional and private life."

42. The verdict in McKenna was not set aside on appeal (State of Victoria v McKenna [1999] VSC 310) but it most certainly remains an unusual verdict for complaints of this nature. I suspect that the measure of damage may have been influenced more by the indignities the complainant suffered than the effect of those indignities upon her.

43. The medical evidence before me concerning Mr Oberoi is that he is in the process of making a good recovery form his depression. He is being successfully treated with an anti-depressant and has taken up sport as a method of rehabilitation. It is my view that the more appropriate level of damages is in the range previously discussed, to which should be added an element for loss of employability.

44. Mr Oberoi also seeks aggravated damages. The Court's approach to this claim was discussed in Elliot v Nanda (supra, paras 179-185). The authorities indicate that aggravated damages are awarded where the conduct of the respondent in relation to the proceedings is inappropriate, lacking bona fides, improper or unjustifiable. (Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211)

45. I did not see anything of that nature in the way in which HREOC reacted to the complaints and the proceedings brought by Mr Oberoi. His complaints were painstakingly investigated, considered and reviewed. Excluding the alleged conduct of Mr Beale, which is not the subject of the current complaint, there is no evidence of malice or ill will towards Mr Oberoi anywhere upon the papers. This is not a case in which aggravated damages should be awarded.

46. I am prepared to accept Mr Oberoi's claims for special damages of $1,500 in respect of the costs of sporting equipment that he deposed to and the costs of preparing for the case, including photocopying and obtaining independent legal advice. Mr Oberoi would not otherwise be entitled to costs (Cachia v Hanes & Anor [1994] HCA 14; 120 ALR 385).

47. I award Mr Oberoi $18,500 for pain and suffering, hurt and humiliation and loss of employability. I award Mr Oberoi $1,500 additional special damages as described above, a total of $20,000.

48. Mr Oberoi has requested an apology from the respondents. Although he has named individual respondents I think that it is proper that any apology be given by the President of HREOC. I think that an apology is appropriate in this case and hopefully will go far in assuaging the hurt that Mr Oberoi feels. During the course of the hearing I asked Mr Oberoi if he would accept a form of apology drafted by me. He indicated that he would. After giving the matter further thought I have decided that the correct course of action is to leave the wording of the apology to Professor Tay and HREOC.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Raphael FM.