"As a result of that meeting it was agreed that I should not work on the Ministers Hotline as often."

I infer from that sentence that the purpose of the meeting was to consider the complaint made by Ms Penhall-Jones that she had been required to work on the Hotline, which was work not commensurate with her grade and which might have exposed her to an increased possibility of unwarranted aggression. I prefer the evidence of Mr Mitchell concerning the work on the Hotline. This was that there was only a small number of staff at the Department and the Minister's Hotline was something that they all had to take turns in working on. Mr Mitchell worked on the Hotline as well as Ms Penhall-Jones. It may well not have been work for a DTO7 or higher but I have found no evidence that Ms Penhall-Jones was singled out to work on the Hotline because of her disability. In a situation where everyone in a team is working on a particular task and one member of the team complains that she should not be required to do so, I cannot see that it is unreasonable for the persons in the meeting called to discuss the complaint to ask the complainant why she should be excluded. I accept that something may be a reasonable request but still a discriminatory one. I accept that asking a person about her disability could be doing something "because of" her disability. I accept that asking someone about her disability might cause them a detriment. But if one looks at the hypothetical comparator, a person without the disability who was a DTO7 and who objected to working on the Hotline, I am of the view that such a person would be asked why she was to be treated differently from the other members of the team. That is what was asked of Ms Penhall-Jones. If Ms Penhall-Jones was treated no differently from a comparator then she has been unable to identify any act of discrimination.

61. Paragraph 19(6) of the FAPC also refers to Mr Mitchell's actions in requiring Ms Penhall-Jones to answer the Ministers Hotline. I am not satisfied from the evidence that Ms Penhall-Jones was expected to do more of this work than any other members of the team as a whole, although it may have appeared to her that she was doing this from time to time. I can accept that the work was not commensurate with her grade, but I have found that it was something that all members of the team were required to do. I am not satisfied that there is evidence that Mr Mitchell was marginalising Ms Penhall-Jones in this way or that this was because of her disability. If Ms Penhall-Jones was doing a disproportionate amount of this work, it could have been for genuine operational reasons or it could have been because Mr Mitchell had taken a dislike to Ms Penhall-Jones because of her complaints about him. Neither of these reasons constitute discriminating against Ms Penhall-Jones because of her disability.

62. Ms Penhall-Jones alleges that the matters complained of in paragraph 19 of her FAPC constitute harassment. The remarks outlined in subparagraphs 1, 2, 3 and 4 could be said to be within that category but I do not believe that they could be said to be "about" Ms Penhall-Jones' disability. I am not satisfied that the remark referred to in subparagraph 5 constitutes harassment, because it was not part of a repeated action that was "about the disability", nor do I consider that the actions of Mr Mitchell in relation to the Hotline do either, for the reasons already explained, as I regarded the work on the Hotline as a co-operative requirement of membership of the team.

63. In paragraph 23 of the FAPC the applicant refers to detrimental treatment by persons other than Mr Mitchell. The first particular relates to the meeting in November 2002 chaired by Mr Cook where it is alleged that Ms Penhall-Jones was required to discuss her disability. I have already discussed this incident. I indicated that I was unable to find that a request for information in these circumstances would constitute a detriment so as to enliven the section. The second particular relates to an unidentified person described as the "IT man". There is no evidence of who this person was and I cannot be satisfied from the words alone that they were said to the applicant because of her disability or that they would not have been said to a person without Ms Penhall-Jones' disability but who the IT man did not consider was being "positive". The third particular relates to certain remarks made by Ms Bromwich, which are dealt with at paragraphs 119-201 of Ms Penhall-Jones' affidavit:

"199. Susan Bromwich said to me: "You should seek counselling".

200. In another conversation Susan Bromwich said "You might have to be prepared to take these people to court again";

201. A week or so later Susan Bromwich said to me "Medical retirement is a solution. You should apply for medical retirement."

The reference to these remarks is so vague, there is no indication of the circumstances in which they were made, there is no evidence that the first two remarks related to any disability at all, or the third remark related to the disability about which Ms Penhall-Jones currently complains. I am unable to find that they constitute discriminatory conduct.

64. The remarks made by Ms Lange are referred to at paragraphs 213.2 and their effect is detailed at paragraph 214 of the affidavit:

"213.1 Bev Lange then said: "I know you work late, but you're often not at your desk and you also leave early sometimes ..."

I said: "I leave at 5.00pm on Mondays and Tuesdays because I have three hours of lectures for the marketing course, which I am doing because of this job, although I did leave at 4.30 one Wednesday to attend a TAFE workshop."

Bev Lange shouted at me: "Don't give me that bullshit! You will benefit from that course!"

I said: "Look, a few months ago you complained because I was taking sick days for stress. Now instead of taking sick days, I may come in late, but at least I am here. I still have insomnia and energy problems."

Bev Lange said: "I don't understand what insomnia has to do with your stress condition. Are you doing anything to manage your stress, like seeing a psychologist?"

I said: "I am a trained psychotherapist and the stress is caused by the organisation, I thought I had made it clear that insomnia was a symptom of stress."

Bev Lange then said sarcastically: "Margaret, if I felt like you, and always felt so depressed that it was such an effort to get up - I'd leave." [emphasis in original]

214. The aggression in this incident upset me so much that I could not go into work the next day, as I could not stop crying. The encounter managed to move me from feeling stressed but trying to cope to feeling despair. By this time it just seemed that the aggression and bullying would never stop. I simply could not face the workplace. I emailed Catherine Reilly who as a Union delegate should have had an interest in what had happened."

65. Ms Lange deals with these matters at paragraph 33 of her affidavit. She denies saying some of these words, she denies being aggressive. Ms Penhall-Jones produces at Tab O(b), page 76 of Exhibit MPJ1, a transcription of the notes that she took at the meeting with Ms Lange on 14 April 2003 in which these words appear. Mr Neil did not cross-examine Ms Penhall-Jones to the effect that these notes were made up or not contemporaneous and that may have been because of a ruling I made at the beginning of the trial that it would not be necessary to put every allegation to a witness where there was a simple allegation and denial. But I think in this case something should have been put. In these circumstances I am prepared to find that the conversation took place as deposed to. Ms Penhall-Jones says that she was humiliated and embarrassed by the remarks, that her condition and symptoms were exacerbated as a result, and her standing in the workplace was diminished. She says that the remarks added to her depression, she lost motivation and self-esteem and was restricted in her work duties. The respondent's submissions in relation to this and other remarks are that no comparators were named such as to provide any evidence that the employees identified treated the applicant less favourably than someone else in the same or materially similar circumstances and it is suggested that the mere fact that a colleague discussed the applicant's symptoms with her does not establish that she suffered a detriment. It is submitted that it was not expressly alleged, nor was there sufficient evidence to prove, that any comments complained of were made on the grounds of the applicant's disability. I have dealt with this conversation in another context and found that the requirement to explain her condition was not made because of the condition, but because of Ms Penhall-Jones' lateness. In this paragraph I am dealing with the remarks themselves and in particular with the final one emphasised in the extract. I am not satisfied the other remark was more than a reasonable enquiry. The unfavourable treatment was the making of the remark in a sarcastic manner. The remark was directly attributable to what the applicant claimed was her disability, namely, depression. Dr Parmegiani in his report which is annexed to his affidavit, at page 8 states:

"I note that my diagnosis is one of Adjustment Disorder with Mixed Symptoms of Depression and Anxiety." [emphasis in original]

"Ms Penhall-Jones' disability consisted of ongoing symptoms of depression and anxiety, of sufficient intensity to interfere with her everyday ability to function at work."

I am satisfied that the remarks made related to Ms Penhall-Jones' disability and were made because of her disability. I cannot accept that a person who did not have depression would have been treated in the same way. I am not prepared to effectively emasculate the DDA by finding that the conduct that has to be compared is "making a sarcastic remark" as opposed to making this particular remark. To do so would excuse any such conduct on the grounds that a person without the disability might be the subject of a sarcastic remark if they came in late. The Act is intended to have beneficial effect; recent decisions have reined in that effectiveness. The line must be drawn.

Unfortunately, however, there is a good reason for my not making a finding in the applicant's favour. Ms Lange has not been sued. It is argued that the State is vicariously liable for her action. I cannot so find. The relevant provision relating to vicarious liability under the DDA is s.123. Section 123(2) imposes liability on any conduct engaged on behalf of a body corporate by a director, servant or agent of the body corporate unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct. Section 123(4) is in the same terms and imposes liability on "[a]ny conduct engaged in on behalf of a person other than a body corporate".

Recently in Commonwealth of Australia v Anti Discrimination Tribunal (Tasmania) [2008] FCAFC 104 ("Commonwealth of Australia v Anti Discrimination Tribunal") the issue arose as to whether the Commonwealth could be considered a "person" for the purposes of the Anti-Discrimination Act (Tas) ("the Tasmanian Act"), which defined a person as "an organisation" in s.3, and an organisation as including a council, a Government department within the meaning of the State Service Act 2000 (Tas), or a State authority (at [92] per Weinberg J). Weinberg and Kenny JJ concluded that the Commonwealth could not be considered a person under that definition. At [183] Kenny J noted that although the definition of "organisation" in s.3 was non-exhaustive, the specific reference to State authorities, State departments and local government, and the absence of any reference to the departments or authorities of any other bodies politic, was indicative of the fact that the Commonwealth was not to be classified as "organisations" or "persons" for the purposes of the Tasmanian Act.

Unlike Commonwealth of Australia v Anti Discrimination Tribunal the DDA does not contain any provisions which suggest that the State of New South Wales or the MoT could not be considered a "person" under its provisions. The comments of Kenny J at [179] regarding the remedial and beneficial nature of the Tasmanian Act are also applicable to the DDA. Section 22(1) of the Acts Interpretation Act 1901 (Cth) indicates that a reference to "persons" includes within that expression references to bodies politic and corporate as well as individuals:

"22(1) In any Act, unless the contrary intention appears:

(a) expressions used to denote persons generally (such as "person", "party", "someone", "anyone", "no-one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual";

The MoT would therefore be a "person" within the meaning of the DDA.

The defence of reasonable precautions and due diligence in s.123 is somewhat similar to the wording in vicarious liability provisions in the other anti-discrimination Acts; s.18A of the Racial Discrimination Act 1975 (Cth) ("Racial Discrimination Act") and s.106 of the Sex Discrimination Act 1984 both of which state that an employer must take "all reasonable steps" to prevent an employee or agent from such acts. In Gama French and Jacobson JJ made the following comments (at [81]) about the operation of s.18A of the Racial Discrimination Act which are also relevant to the application of s.123 DDA:

We accept that it is not prima facie unlawful to fail to take steps to prevent discrimination. Rather, s 18A

operates to excuse a respondent from liability imposed via s 18A(1)

if reasonable steps were taken to prevent its employee or agent from doing the act which would otherwise attract that liability."

The existence of relevant policies and procedures is significant, but the mere fact that there was an anti-discrimination policy in place may be insufficient. It is also necessary to demonstrate that some positive action or intervention was taken: see Asnicar v Mondo Consulting Pty Ltd [2004] NSW ADT 143 at [130], McDonald v Hospital Superannuation Board [1999] HREOCA 13 at 7.2 (see also Halsbury's Laws of Australia at [80-415]). See also Vance v State Rail Authority [2004] FMCA 240 (at [56]-[57]) where it was found that the policies and training in place for train guards met the required standard of reasonableness, and that an "excessive" level of supervision was not required to meet the standard despite the fact that the train guard had not acted in accordance with his training.

In Exhibit MPJ4 the applicant has annexed several documents of policies of the Ministry which the applicant in her affidavit states were issued by the Department of Premier and Cabinet. Annexure E contains a resource guide entitled "Employ Able" which the applicant in her affidavit says was issued by the Director of Equal Opportunity in Public Employment. It describes various psychiatric disabilities that individuals in the workplace may suffer from, and outlines potential situations where people with psychiatric disabilities could be discriminated, and strategies to assist people with psychiatric disabilities:

"The most significant barriers to people with a mental illness being productive in our workforce are the discrimination and misconception that arise in our community.

A supportive co-worker will assist the individual to set an appropriate schedule for acquiring new skills and create an environment where the individual is comfortable to ask questions without fear of ridicule."

Annexure G contains a policy entitled "Dignity and Respect in the Workplace Charter" which Ms Penhall-Jones describes in her affidavit as a document that has been agreed upon between the Public Service Management Office and the Public Service Association. It outlines various types of behaviour which could be considered to be bullying, including "Humiliating a person through gestures, or sarcastic, racist or derogatory comments, often in front of clients, management or co-employees."

Following this incident, as Ms Penhall-Jones indicates in her affidavit at paragraph 214, the applicant emailed Catherine Reilly (Annexure P of Exhibit MPJ1) saying that she was on leave and, following the encounter with Ms Lange, was on sick/stress leave for the next three days. It is not clear on the evidence as to whether there was a response to this email. However, having regard to all the evidence, it is clear that on several occasions the MoT sought to deal with the issues that Ms Penhall-Jones had raised at various points through discussions with Ms Penhall-Jones, meetings with the relevant parties and changes in supervision when necessary. Sometime in April 2003 (it is not clear whether it was before or after the incident outlined above) the applicant indicated to Ms Lange that she wanted to work from home on a regular basis and that she thought this would help her manage her stress. Annexed to Ms Lange's affidavit at H is a document dated 12 May 2003 which outlines the approval of her request to work from home. I am satisfied that the policies in place at the MoT constituted "reasonable steps" bearing in mind their comprehensiveness and the action taken in support of them following the complaint.

66. At paragraph 23(6) Ms Penhall-Jones alleges that she was treated less favourably than other employees in similar circumstances to her when Elaine Lamond suggested to her that she should consider voluntary redundancy on 9 January 2001 at a meeting with Mr Lucarini and again in 2002 upon her return from sick leave. Ms Penhall-Jones' evidence in this regard is contained at paragraph 109 of her affidavit:

"The next day, 9 January, I had a meeting with Reno Lucarini, Director of Corporate Services and Elaine Lamond to clarify Tim Mitchell's understanding of my situation. They explained that I was not excess staff, I was displaced from my position. They told me that if a position came up at my grade, then I could apply for it and the MOT had an obligation to place me. They said I could not be dismissed. Then, for absolutely no reason, Elaine Lamond said:

Elaine Lamond: "Would you consider a voluntary redundancy?""

In regard to the second incident, the evidence is found at paragraph 148:

"During the period I was on leave, Matt Smith's secondment ended and he returned to the Office of State Revenue. (Attachment H in Exhibit MPJ 2).

Elaine Lamond took over the Return to Work program which Matt Smith had been running. The only action Elaine Lamond took on the return to work program was to have a coffee with me in a café near the MOT on the morning I returned to work after being ill. She brought with her forms from the Premiers Department's Workforce Management Centre, which were to be filled in by displaced and excess staff who were to be listed on the WMC redeployment list for placement in another Government agency. Over coffee, Elaine Lamond pushed the forms at me and said

Elaine Lamond: "You should think seriously about applying for redeployment through the Workforce Management Centre."

Then Elaine Lamond said: "There is always the possibility of a voluntary redundancy."

Ms Lamond's evidence was that she did not offer Ms Penhall-Jones a voluntary redundancy at any meeting. She said that voluntary redundancies had to be authorised by the Director-General in conjunction with the Minister. She accepts that she may have mentioned voluntary redundancy to Ms Penhall-Jones when she discussed her options as a displaced officer. I am prepared to accept that she did say on the first occasion words to the effect: "Would you consider a voluntary redundancy?" and reminded Ms Penhall-Jones that there was always the possibility of a voluntary redundancy on the second occasion. Whilst it is certainly arguable that the words used by Ms Lamond were used "because of" Ms Penhall-Jones' disability, I have not been provided with any evidence which would enable me to make a finding that another person without Ms Penhall-Jones' disability but who was a displaced member of staff would not have been asked a similar question. Ms Penhall-Jones says in her submissions:

"Comparative people with disabilities are not offered voluntary redundancy and there were no others offered to other employees at that time."

Making an offer of redundancy to somebody is very different from asking them whether they would consider voluntary redundancy. That is the first question that is asked. Only when the employee indicates that he or she would consider such an offer might an offer be made. Ms Penhall-Jones has not convinced me the question was not asked to any other person and I am therefore not satisfied that she has made out this claim. I should also state that I do not find the remark in itself to be one that was made because of the disability as opposed to being made because of the applicant's failure to obtain a satisfactory position. The remark itself seems to me to have been reasonably made in the context of this particular conversation and could have been made for either reason. I will make the same findings in relation to the second remark.

67. The final claim under paragraph 23 of the FAPC is in the following form:

"(7) Elaine Lamond pressured the Applicant to sign up for the Workforce Management Centre which would have made the Applicant "excess" staff rather than the "displaced" staff. This would have places [sic] the Applicant in a position in which she had salary maintenance for a year and then could be demoted."

I do not think it is seriously in issue that Ms Lamond asked Ms Penhall-Jones to sign up for the WMC. By July 2002, which is the time when the complained of conduct took place, Ms Penhall-Jones had gone through a series of interviews within the Ministry. They had not been successful. Signing on to the WMC meant that Ms Penhall-Jones could be interviewed for positions outside the MoT. I am unable to see how making this suggestion can be said to have been subjecting to Ms Penhall-Jones to a detriment. Ms Penhall-Jones had a view that going into the WMC might lead to her having her designation changed to "excess" staff from "displaced" staff. This might mean that she would be subject to a year's salary maintenance and then possibly a demotion. But Ms Penhall-Jones was not forced to go to the WMC. It was suggested that she do so. She declined. If she was being subjected to a detriment then it could only be because Ms Penhall-Jones took the view that any discussion about steps that might be taken by her to alleviate the problems she perceived she was having affected her mental state. In these circumstances the claim is no longer one of suggesting she joins the WMC, but of making a hurtful remark. Apart from the evidence, which I accept, that Ms Lamond knew about Ms Penhall-Jones' disability, there is no evidence that she made the hurtful remark "because of" Ms Penhall-Jones' disability. Ms Lamond did not consider that she was making a hurtful remark. Ms Penhall-Jones has not made out this complaint. I do not see it was objectively hurtful.

68. I was informed that the particulars in paragraph 23 of the FAPC constitute harassment. There is no evidence that the remarks were orchestrated by the respondent or any of its employees. In these circumstances the first three particulars of remarks by three different individuals could not be considered harassment taken together, even if the remarks had been made in relation to her disability. The fourth remark was so made, but the other remarks made at that meeting were made not about Ms Penhall-Jones' disability, but about her being late. The two remarks made by Ms Lamond were not made about the applicant's disability, they were made about her employment situation. The remarks do not constitute harassment.

Indirect discrimination or, alternatively, direct discrimination

69. These matters are dealt with at paragraphs 26-30 of the FAPC. The pleading averts to the applicant's right to priority assessment upon her return from the Premiers Department, that she made three applications and each time was required to go through an interview application process which she says was unnecessarily stressful. The three interviews are particularised. At paragraph 28 the applicant says:

"In breach of s6 of Disability Discrimination Act 1992 the Respondent required the Applicant to attend formal and stressful interviews which a substantially higher proportion of people without her disability could comply, and which she was not able to comply and which was not reasonable in the circumstances."

A Full Bench of the Federal Court (Black CJ, Spender and Emmett JJ) have recently given consideration to what is required in order to establish indirect discrimination in State of Queensland (Queensland Health) v Che Forest [2008] FCAFC 96 ("Queensland Health"). The Chief Justice observed in relation to this section at [6]-[9]:

"I now turn to s 6, and the difficult field of indirect discrimination. Section 6 identifies the circumstances under which, for the purposes of the Act, a person discriminates against another on the ground of disability. The first step required by the section is to determine whether the alleged discriminator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply: s 6(a).

Section 6(a) therefore directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and persons without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group. Discrimination occurs if the requirement or condition impacts more severely upon persons with a disability than it does upon persons without the disability. Since the requirement or condition may impact upon both groups, the Act requires reference to the proportionate impact and a consideration of whether "a substantially higher proportion of persons without the disability" can or are able to comply.

In some instances the required disproportional impact may be established as a matter of inevitable inference. This will occur when the very nature of the disability is such as to show, that none of the other members of the comparator group - the persons with the disability - could not comply with the requirement or condition, leading to the necessary conclusion that a substantially higher proportion of persons without the disability could comply.

To my mind the learned judge was in error in the present case in failing to define the comparator group so as to enable the comparison required by the section to be made. Rather, it seems, her Honour attributed to an undefined comparator group the alleged difficulties of access that were at the heart of Mr Forest's case. Whilst this attribution might well have been sufficient where, for example, there was an obvious physical disability, there was no warrant for doing so here. The proportional impact was by no means self-evident. In the present case, whether the class of persons with Mr Forest's disability was large or small, and however broadly or narrowly his disability might be defined (and this seems to have been a matter of controversy at the trial), there was no evidence to establish the respective proportions of persons who could comply with the requirement or condition."

The majority discussed this issue commencing at [119]:

"The effect of s 6 is that a 'discriminator' discriminates against an '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 with which a substantially higher proportion of people without the disability comply or are able to comply. That requires a comparison of the way in which the alleged discriminator deals with one group of people, being a group who do not have the disability of the alleged aggrieved person (the base group), with the way in which the alleged discriminator deals with another group of people, being a group of people who do have the disability of the allegedly aggrieved person (the comparator group). The comparison must be a comparison of groups of people by reference to the alleged discriminating. The base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed (see Australian Iron & Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 177-178)." [emphasis in original]

Their Honours went on to hold that the primary judge had not made findings as to the proportion of people in the base group or the proportion of people in the comparator group, or that the first proportion was substantially higher than the second proportion. The only evidence that I have received in this case is evidence about Ms Penhall-Jones herself. I have been given no information about other persons with the disability that affects her, or how they were treated. I accept that there are occasions where one can take the evidence of one complainant as being typical of all members of the group. One person in a wheelchair who complained that she was unable to climb the stairs to the Opera House might be accepted as speaking for all persons in her position, but the very nature of the complaints made by Ms Penhall-Jones cries out for more particularisation of the group to which it is said she belongs. In the absence of such particularisation Ms Penhall-Jones cannot proceed with a claim of indirect discrimination. For the sake of completeness I would add that there should also be evidence about how other persons were treated who were not the subject of the disability, the base group. That was not forthcoming either. There was merely an assertion that such people would not find the interview process stressful.

70. Ms Penhall-Jones makes a similar complaint of indirect discrimination in relation to her treatment by Mr Mitchell. I do not think that framing a case in this manner is amenable to a claim that is essentially against a particular person for particular acts. The essence of indirect discrimination was explained by the Supreme Court of the United States in Wards Cove Packing Company Inc v Atonio [1989] USSC 104; (1989) 490 US 642 at 645 per White J:

"Griggs v Duke Power Co., [1971] USSC 46; 401 U.S. 424, 431[1971] USSC 46; , 91 S.Ct. 849, 853[1971] USSC 46; , 28 L.Ed.2d 158 (1971), construed Title VII [of the Civil Rights Act of 1964, which related to discrimination in employment] to proscribe "not only overt discrimination but also practices that are fair in form but discriminatory in practice." Under this basis for liability, which is known as the "disparate-impact" theory ... a facially neutral employment practice may be deemed [discriminatory]... without evidence of the employer's subjective intent to discriminate".

In Australian law, the purpose of indirect discrimination provisions was explained by Sackville J in Australian Medical Council v Sir Ronald Wilson & Ors [1996] FCA 1618 at [62]:

"The point of provisions attacking indirect discrimination is to prevent individuals from the effect of apparently neutral conditions or requirements, which in fact operate in a manner that discriminates against particular groups the members of which have characteristics in common (such as race or national origin). A particular individual within a group subjected to discriminatory practices often will have some chance of complying with the offending condition or requirement. The chances of compliance may depend on how the condition is administered, or on whether the individual is able to overcome the practical obstacles placed in his or her path by the invidious condition or requirement."

There is no evidence that Mr Mitchell's conduct constituted the policy of the MoT. His conduct constituted bad management practice. There is no evidence that bad management was the practice of the MoT. In fact, all its written material is to the contrary. I take the same views about the failure properly to identify the comparator group and the base group and then to establish the mathematical formulation referred to by the majority in Queensland Health as I did in relation to the other claim of indirect discrimination. In particular I note the absence of any evidence about how the base group might have reacted to Mr Mitchell's management. I am unable to see that these claims have been made out.

71. In paragraph 29 of the FAPC it is said of the matters particularised in paragraph 27 that:

"In the alternative, the less favourable treatment by the Respondent was discrimination against the Applicant within the meaning of s.5 of the Disability Discrimination Act."

What this allegation does not say is that the less favourable treatment must be made because of the applicant's disability, it also begs the question that the treatment referred to was less favourable. I have already made findings about the Lucarini interview. I expressed the view that I could not be satisfied that Mr Lucarini's conduct was "because of" Ms Penhall-Jones' disability. I also indicated that I could not be satisfied that Mr Lucarini would not have treated any applicant in the way he treated Ms Penhall-Jones and therefore she was not treated less favourably. I made similar findings in relation to the second interview, and the third. To the extent that Ms Penhall-Jones' complaint is limited to making her attend interviews that were stressful, I have no evidence that this was done because of her disability, or that a person without her disability would not also find interviews stressful so that she would not have been treated any less favourably than a person without her disability. I have already discussed the applicant's failure to satisfy me that other displaced officers were not required to attend interviews.

72. These findings deal with the complaints by Ms Penhall-Jones of disability discrimination. They amount to a comprehensive rejection of the applicant's case in proceedings numbered SYG185 of 2005. Ms Penhall-Jones also brought proceedings in matter number SYG1233 of 2007 claiming acts of victimisation by the respondent in breach of s.42 of the DDA. That section is in the following terms:

"42 (1) It is an offence for a person to commit an act of victimisation against another person.

(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a) has made, or proposes to make, a complaint under this Act

or the Human Rights and Equal Opportunity Commission Act 1986

(b) has brought, or proposes to bring, proceedings under this Act

or the Human Rights and Equal Opportunity Commission Act 1986

(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents

to a person exercising or performing any power or function

or the Human Rights and Equal Opportunity Commission Act 1986

(d) has attended, or proposes to attend, a conference held under this Act

or the Human Rights and Equal Opportunity Commission Act 1986

(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act

or the Human Rights and Equal Opportunity Commission Act 1986

(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act

or the Human Rights and Equal Opportunity Commission Act 1986

(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive)."

The applicant claims that she was victimised by the respondent through its employee Catherine Reilly when she annexed a document purporting to be a file note to an affidavit sworn on 4 November 2005 in support of the respondent's case which, she says, caused her detriment or threatened to cause a detriment to her in that the document was constructed for the purpose of affecting the outcome of the case. In his written submissions on this matter Mr Neil states at [119]:

"It must be said that the file note was not read into evidence in those proceedings and was not relied on in any way. There is no evidence that its mere creation in any way affected the outcome of the proceedings. The second file note can readily be compared with the first. There is nothing in any of the differences revealed by that comparison that could rationally be said to place the applicant in a materially less favourable light."

The two file notes relate to a meeting that was held between Ms Reilly and Ms Penhall-Jones after Ms Penhall-Jones had not attended an SSTS working party meeting at Town Hall House. Ms Reilly's evidence in relation to the documents is contained at paragraphs 63-66 of her affidavit. She states that she cannot recall and cannot explain how the second file note came into existence. I have attached as an Annexure to this judgment a marked-up copy showing both statements and the differences between them. It will immediately be seen that whilst there are differences of emphasis, the essential facts concerning the interview do not change. I am told that the file note was not read into evidence and was not relied upon in any way in the case. Ms Reilly was cross-examined about the two notes. It was put to her that the intention that she had in creating the second file note was that she intended to affect the victimisation trial. She claimed that she did not agree with that suggestion. After reading the affidavit and listening to the cross-examination I was not left with any impression that Ms Reilly had acted with some discriminatory intent when she produced the second file note. I asked counsel for Ms Penhall-Jones what the detriment was that Ms Penhall-Jones was subjected to and I was told that it was that Ms Reilly changed the file note and passed off the new one as a contemporaneous file note causing Ms Penhall-Jones to have to respond to the second file note. In circumstances where the second file note was not used, where the second file note is not obviously more damning of Ms Penhall-Jones' alleged conduct than the first, and where it would be open for a court to say that the worst Ms Reilly had done was to append an incorrect date to the second document, I do not accept that there is made out a real case of detriment. I am also unable to find on the evidence that was before me that the actions of Ms Reilly were done on the ground that Ms Penhall-Jones had brought proceedings under the DDA. Certainly she had brought proceedings under the DDA and certainly the affidavit and the exhibits were produced in relation to those proceedings. But that is not the question. The question that has to be determined is whether Ms Reilly created a second document because Ms Penhall-Jones had brought proceedings. It is clear that Ms Penhall-Jones thought there must be some reason for this, hence her assertions that it was intended that the second document would be more damning than the first, but I have not found that this is so. A claim of victimisation is a very serious claim, and in accordance with the principles that I have referred to in my discussion on Briginshaw I would require persuasive evidence that Ms Reilly's actions were taken for such a reason: see the discussion on these matters by Buchanan J in Penhall-Jones v State of New South Wales [2007] FCA 925 at [76] et seq.

73. The second claim of victimisation is found at paragraphs 7-9 of the Points of Claim:

"The Applicant was victimised by the Respondent through its employee Reno Lucarini in 2005 causing her detriment on the grounds that the Applicant had discrimination proceedings # SYG185/2005.

7.1 Despite requests by the Applicant, in 2005 Mr Lucarini refused to implement a return to work program for the Applicant until the discrimination matter was heard.

7.2 Mr Lucarini refused to agree to transfer to another public service agency until the discrimination matter was heard.

7.3 The Respondent would not offer any suitable duties to the Applicant until after the hearing of the discrimination case.

8. The Respondent breached s42 of the Disability Discrimination Act (1992) in that he caused or threatened to cause a detriment to the Applicant because of her proceedings under that Act."

These points of claim were further particularised in the document which I requested that the applicant provide which set out details of the discriminatory conduct and the evidence that the applicant said established it. In regard to this victimisation claim, she says this:

"The Applicant claims she was victimized by Reno Lucarini when in 2005 he refused to implement a return to work program, refused to agree to her transferring to another public service agency and would not offer her any suitable duties until after the hearing of the discrimination case #185/2005.

Evidence. This is in evidence in the letter of Reno Lucarini of 16 September, 2005 and in the correspondence attached to the Affidavit of Robert Chivers, as well as in the Affidavit of Robert Chivers in the Applicant's Bundle. This was so despite Mr. Mark McKie from Crawford Health care Management advice to Mr Lucarini that in the event there are no suitable duties in MOT Ms Penhall-Jones should be given a transfer to a new division where she can start her return to work program. In paragraph 2 of his report he says "I understand from my meetings with Ms Penhall-Jones and you (R Lucarini) that there exists other litigation matters......I acknowledge the potential influence of these matters in the process of rehabilitation and return to work." It is Applicants submission that he was referring to both the discrimination and victimisation proceedings. (Exh A pg1.5) In addition, Crawford Health Care cosigned a letter in which they acknowledge that the reason the Applicant was attempting a work trial is because work was being with-held pending the outcome of the discrimination proceedings (attached to the Applicant's Affidavit of 2008 regarding economic loss).

Detriment suffered by the Applicant was that she has not been able to return to work since the return to work program was cancelled in November 2004. Since then she has not received her proper salary but an amount equivalent to Workers Compensation which has been paid by the workers compensation insurer . (itemized in aff MPJ sworn Feb 2008)."

74. The letter of 16 September 2005 is in response to several letters from Ms Penhall-Jones.

YOUR LETTERS OF 29 JULY 2005, 26 AUGUST 2005 AND 4 SEPTEMBER 2005

I refer to your letters of 29 July 2005, 26 August 2005 and 4 September 2005, addressed to Mr John Lee, Director-General of the New South Wales Ministry of Transport.

I apologise for the delay in responding to your letters and confirm that the Ministry has been taking legal advice in relation to the matters raised by you.

I note the contents of the latest WorkCover medical certificate provided by you dated 30 August 2005 from Dr E Parmegiani, that you are only able to work from home for two days per week.

The Ministry is not in a position to provide you with suitable duties in relation to your stated capacity to work as contained in the latest WorkCover medical certificate.

As this has consequences with respect to your worker's compensation rights we respectfully suggest you should direct any further queries you have in relation to your worker's compensation benefits and/or rehabilitation, including any return to work program, to the Ministry's workers compensation insurer whose contact details are:

I will forward Mr Novakovski a copy of this letter.

There is no mention in this letter of proceedings SYG185 of 2005.

75. Mr Chivers' affidavit is dated 3 December 2007. It states that Mr Chivers is the corporate counsel of the MoT and it annexes the letter of 16 September 2005 set out above. It makes reference to an affidavit sworn by Ms Penhall-Jones and filed on 5 September 2007. That affidavit was filed in the substantive discrimination proceedings SYG185 of 2005. The applicant states at the relevant paragraphs that in mid-2006 the workers compensation insurer appointed Crawford & Company as rehabilitation providers. Mr McKie was Ms Penhall-Jones' case manager. Ms Penhall-Jones says that Mr McKie had several meetings with Mr Chivers and Mr Lucarini. Mr McKie telephoned Ms Penhall-Jones on two occasions following meetings with Mr Chivers and Mr Lucarini. Ms Penhall-Jones deposed to what Mr McKie told her. That is not evidence of what was said. Ms Penhall-Jones stated that Mr McKie and herself drafted a proposal with a view to finding her a position within another public service agency utilising the redeployment service in the Premiers Department. I am satisfied from the evidence of Mr Lucarini that the only relevant agency was the WMC. I believe that Ms Penhall-Jones had confused the WMC with the previous name of that agency and thought that there were two agencies rather than there being one. Ms Penhall-Jones deposes to the fact that Mr McKie developed a return to work program for approval by her treating doctor and the insurer. The first option was to seek a transfer through this facility. She said the insurer approved all the options except the transfer. Mr Chivers, whose affidavit was tendered by Ms Penhall-Jones, was not cross-examined by Mr Neil. He deposes to the fact that he only met Mr McKie on one occasion on 5 July 2006 and that Mr Lucarini was present. He said that Mr McKie was handed a document which is exhibited to Mr Chivers' affidavit. I set out below those paragraphs of that document which I consider to be immediately relevant. What I have omitted is certain particularisation.

"Establishment of an Injury Management Plan for Ms Margaret Penhall-Jones

The Ministry has demonstrated a willingness to participate and co-operate in the establishment of an injury management plan for Ms Margaret Penhall-Jones.

It is appropriate to inform all parties concerned that the Ministry is currently defending claims issued by Ms Penhall-Jones in both the Federal Court (NSD 587/2006) and the Federal Magistrates Court (SYG 3013/2005). These claims involve the contention that the Ministry has discriminated against and victimised Ms Penhall-Jones, including with respect to her rehabilitation and as such cannot be ignored in the present context.

The proceedings in the Federal Court are by way of appeal against a decision of the Federal Magistrates Court to dismiss Ms Penhall-Jones's disability discrimination claim against the Ministry. A decision of the Federal Court as to whether Ms Penhall-Jones should be granted leave to appeal is pending.

In the Federal Magistrates Court proceedings Ms Penhall-Jones alleged she has been victimised by the Ministry, through the actions of its employees and agents, for lodging the disability discrimination claim mentioned directly above. This matter has been heard by the Federal Magistrates Court and a decision is currently pending.

Particulars of Ms Penhall-Jones's victimisation claim include amongst others:

The Ministry denies Ms Penhall-Jones's claims and has defended the proceedings, which as indicated above, are currently unresolved.

The Ministry is aware of its obligation under section 49(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to provide suitable employment for a worker who is able to return to work. The Ministry is also aware that this obligation does not apply if it is not reasonably practicable to provide employment.

It is relevant to note that the Ministry has previously expended significant resources and costs in attempting to facilitate Ms Penhall-Jones return-to-work on a graduated basis. This included the Ministry voluntarily, and at its own expense, continuing the return-to-work program for a number of months (April to November 2004), after its prior workers compensation insurer (GIO) determined it would not cover the cost of the program.

The Ministry's previous attempts to facilitate Ms Penhall-Jones return-to-work have failed. Every person (with one exception) appointed to supervise Ms Penhall-Jones has been accused by Ms Penhall-Jones in the Court proceedings of engaging in bullying or harassing behaviour.

Ms Penhall-Jones has claimed in material provided to the Courts during the proceedings that:

Ms Penhall-Jones's stated capacity to work as contained in her WorkCover medical certificates is impracticable. The previous attempts at facilitating work in accordance with Ms Penhall-Jones's stated capacity has failed.

There remains extant between Ms Penhall-Jones and the Ministry (and most importantly fellow employees of the Ministry who have been Ms Penhall-Jones's supervisors) unresolved issues with respect to Ms Penhall-Jones ability to take counsel and comply with lawful and reasonable directions, in employment.

Ms Penhall-Jones has not demonstrated any willingness or aptitude to undertake work other than on her own terms.

The medical clearance under which Ms Penhall-Jones contends she is willing to work is not in respect of a work regime which is reasonably practicable.

Based on material provided by Ms Penhall Jones working for the Ministry appears to be contrary to Ms Penhall-Jones's health interests.

For these reasons the Ministry is firmly of the view it is not reasonably practicable for the Ministry to provide suitable employment to Ms Penhall-Jones.

76. The appeal matter NSD1516 of 2006 was heard by Buchanan J. Judgment was given on 28 June 2007. The appeal was dismissed. His Honour commenced his judgment with the following introduction:

"1. The appellant (Ms Penhall-Jones) is employed in the New South Wales Ministry of Transport ('the MOT') as part of the Public Service of New South Wales ('the Public Service'). It would appear that she has not attended for work since October 2004. It is her contention that she is disabled from doing so. It is not necessary for the purpose of this judgment to express any view whether that contention is well founded or not.

2. Her appeal concerns allegations that she was victimised because she made a complaint of disability discrimination. The Federal Magistrate who heard the proceedings at first instance did not accept that victimisation had occurred (Penhall-Jones v State of NSW (No 2) [2006] FMCA 927. He was critical of the way in which Ms Penhall-Jones conducted her case. His criticism led Ms Penhall-Jones to contend that, in addition to making factual and legal errors, he was apparently biased against her.

3. As will be seen I do not accept that she has made out this complaint or any other ground upon which the appeal can succeed.

The Jurisdictional Basis of the Proceedings in the Federal Magistrates Court

4. On 18 October 2005 Ms Penhall-Jones filed an application in the Federal Magistrates Court of Australia alleging that she had been victimised because she made a complaint under the Disability Discrimination Act 1992 (Cth) ('the Act'). The disability discrimination complaint was made in January 2004. It is unnecessary to trace its subsequent course although, as will become apparent, a conciliation conference which took place on 28 September 2004 provided the occasion for events of significance to the present appeal."

"It must be borne in mind that there were two relevant complaints. Ms Penhall-Jones alleged in the Federal Magistrates Court that she was victimised in various ways for the reason that she had made her earlier complaint of disability discrimination. She said that making the disability discrimination complaint (in January 2004) led to her being subjected to or threatened with detriment. Termination of the later complaint (made on 25 July 2005) alleging victimization gave the Federal Magistrates Court jurisdiction to entertain the proceedings and make the decision from which the present appeal is brought."

77. On 31 October 2006 Mr Lucarini wrote to the workers compensation insurer. This letter is extracted below:

We note that Mr Mark McKie (Mr McKie), from Healthcare Management Services, has recommended that Ms Penhall-Jones undertake a Return to Work Program elsewhere within the public sector, that is, not within the Ministry of Transport (the Ministry).

As you are aware the Ministry is not Ms Penhall-Jones' employer. Rather Ms Penhall-Jones's employer is the Crown in the right of the State of New South Wales.

On 31 July 2006, in determining to dismiss a complaint lodged by Ms Penhall-Jones against the Crown alleging victimisation, the Federal Magistrates Court (the Magistrates Court) made a number of finding [sic] including the following:

1. "Although not expressly recognised at the time by Mr Grant, Ms Lamond, Ms Reilly and Mr Zelma, it must have been clear to all of them that Ms Penhall-Jones probably could not and would not be returning to the workplace. The employment relationship had probably collapsed and it was unrealistic to attempt to revive it. The only person who did not see that, and who continues not to see it, is Ms Penhall-Jones." (paragraph 140); and

2. "The employment relationship having broken down and Ms Penhall-Jones having departed the workplace indefinitely it was pointless to reinstate the programme. There was no serious question of Ms Penhall-Jones returning to work at the Department of Transport. The outstanding question was the terms upon which Ms Penhall-Jones would be compensated for the loss of her employment, which while not formalised, was then and is now an effective fact. That issue remains unresolved and needs to be resolved." (paragraph 141)

Ms Penhall-Jones has appealed to the Federal Court (the Court) against the decision of the Federal Magistrates Court and her appeal is due to be heard by the Court on 18 December 2006.

Unless, and until, the Court allows Ms Penhall-Jones's appeal the decision, and finding made by the Magistrates Court apply to the Crown in the right of the State of New South Wales.

To the extent that the issues canvassed by Mr McKie's recommendation, namely that Ms Penhall-Jones return to employment elsewhere within the public sector (that is, elsewhere within the Crown in the right of the State of New South Wales) involves matters before a court, including appellant proceedings, they are sub judice.

The Crown therefore does not intend considering further the recommendation made by Mr McKie until after the determination of Ms Penhall-Jones's appeal before the Court.

It appears to us that Mr McKie's recommendation has been rendered without regard to the findings of the learned magistrate, following a fully contested hearing in the Magistrates Court, that the employment relationship has "probably collapsed" and "broken down".

We will consider this matter further after a decision in relation to Ms Penhall-Jones's appeal has been determined by the Court.

The evidence extracted in the preceding paragraphs does not establish that Mr Lucarini refused to agree to implement a return to work program, or to a transfer to another public service agency, or would offer her other suitable duties until after the hearing of matter number SYG185 of 2005. The evidence all points to such decisions being made on two bases. The first was that Ms Penhall-Jones asked to return to work at the MoT by working from home two days per week. That was the basis of all her correspondence with the MoT. I understand that it is said that given the nature of her symptomology, any return would have to start on this basis. It would then build up to a full return to work. Mr Lucarini gave evidence that there were no suitable duties available for a person working two days a week from home. He was cross-examined about this. I do not think that the cross-examination elicited a retraction from that position. In my view this disposes of the victimisation case in relation to work at the MoT unless it can be shown that there was some other reason additional to this that would amount to victimisation. It is clear that Mr Lucarini did have regard to the proceedings that had been brought in the Federal Magistrates Court and which were being appealed to the Federal Court. These proceedings are not proceedings SYG185 of 2005. Ms Penhall-Jones then sought to use as evidence of the facts contained therein the report of Mr McKie. Mr McKie was not called to give evidence. Mr Neil argues that when he acknowledged the importance of proceedings that had been taken out by the applicant Mr McKie was doing no more than expressing his own view and not purporting to report anything that he had been told by Mr Lucarini:

"Indeed, if my learned friend had sought to draw that much from the letter, then it would have been to rely upon the contents of the letter for an inadmissible hearsay purpose, and there was no suggest[ion] wh[en] the letter was tendered that it was being relied upon for any such purpose. Mr McKie may well have thought that there was a connection between the applicant's rehabilitation and her proceedings in matter no. 185/2005. He may well have had other proceedings in mind. No-one knows, because Mr McKie was not called, and no explanation was furnished by the applicant for her failure to do so. Mr Lucarini was called. He was an identified participant in the conversation with Mr McKie, but he was not asked about that aspect of the conversation. He was not asked to give evidence about any aspect of the conversation which might give rise to Mr McKie's state of mind as to a connection between proceedings instituted by the applicant, whatever those proceedings might have been, and her rehabilitation."

In this submission Mr Neil has succinctly highlighted the reasons why I cannot rely upon Mr McKie to support the submission that SYG185 of 2005 was ever in contemplation.

78. Ms Penhall-Jones submits that Mr Lucarini declined to assist her by arranging for her to have a transfer to another area of the New South Wales government because of her institution of proceedings SYG185 of 2005. In the letter of 31 October 2006 to the insurer, Mr Lucarini makes reference to employment elsewhere within the public sector. He declines to do anything about this until after the appeal is heard. That, of course, is a reference to a matter that is not connected with SYG185 of 2005. But he also posits another reason, and that is that the only way in which a transfer could occur would be through utilising the WMC. Ms Penhall-Jones has consistently refused to request access to the WMC. In a letter dated 12 September 2007, the Director-General of the MoT wrote to the PSA of New South Wales about Ms Penhall-Jones. That letter reveals that there might have been a possibility of a transfer being given to Ms Penhall-Jones through the discretion of the Director-General. In the letter the Director-General declines to exercise his discretion to assist Ms Penhall-Jones, either to further discuss a return to work plan, or to support a secondment and/or permanent transfer to another government department. The reasons that he gives include the existence matter number SYG3013 of 2005 and the appeal, and the decision of Driver FM in Penhall-Jones v State of NSW (No 2) [2006] FMCA 927. He cites remarks made by his Honour in those proceedings and also the fact that Ms Penhall-Jones has been ordered to pay approximately $50,000.00 worth of costs, which at the date of the letter remained unpaid. That letter was written six months after proceedings SYG1233 of 2007, which I am today deciding, were issued. The letter was not before HREOC. It could not form part of this claim.

79. Cases under the Commonwealth discrimination Acts appear simple, but they are not. They are complex. Because of this, it has been my practice, and the practice of other members of this court, to require the filing of points of claim so that the issues can be identified at an early stage. The cases are not cheap to run notwithstanding the benevolent cost regime in this court. They involve a considerable amount of executive time on the part of corporate or government respondents, and an equally large amount of emotional energy on the part of the applicants. A perusal of the transcript and of the orders that this court has made in relation to these proceedings will reveal that I have made every effort to try and ensure that Ms Penhall-Jones' case was articulated as clearly as possible, for her benefit even more than that of the respondents. Eventually, something approximating clarity was provided prior to the hearing in the document that I have previously referred to. Remembering how long this case has taken to be fully argued, the obtaining of some relative degree of clarity was required in the interests of justice. Ms Penhall-Jones has nailed to the mast her claim that the victimisation she received through Mr Lucarini was based upon her bringing proceedings in SYG185 of 2005. Whilst I have my doubts as to whether Mr Lucarini's conduct amounted to victimisation of any type, it most certainly did not amount to victimisation on this basis.

80. I have tried my best to deal comprehensively with what I believe are all the issues in these proceedings. I am aware of the strain that the conduct of the proceedings imposed on both Ms Penhall-Jones and Ms Gormly. This court is most appreciative of the assistance that Ms Gormly provided to Ms Penhall-Jones in the bringing of this action. I have little doubt that without her appearance the proceedings would have taken considerably longer. The court would also wish to express its appreciation of the manner in which the case was conducted for the respondents by Mr Neil SC and Ms McWilliam. They were models of the politeness and restraint required in conducting matters of this type.

81. The effect of the conclusions made in these reasons for judgment is that both applications must be dismissed. In these circumstances costs must follow the event and the applicant must pay the respondent's costs. This is not a matter that is suitable for an order for costs under Schedule 1 to the Rules of the Federal Magistrates Court. Because the Federal Magistrates Court is intended to be "cheaper" as well as quicker and simpler, I would propose to order that if the costs be not agreed, they be taxed pursuant to the Federal Court Act and Rules, and paid at 80% of the amount so taxed. If there is some argument as to a Calderbank or equivalent, the parties have liberty to apply on three days' notice.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Raphael FM