Ferguson v Shoalhaven City Council [2023] NSWCATAD 276

Ferguson v Shoalhaven City Council [2023] NSWCATAD 276

The booking change itself, office interchange, mural removal and Council complaint handling were not proved to be racial discrimination, but the incident report racially discriminated against the applicant because it shifted the focus from his site-booking complaint to racialised assertions about land, highlighted his Aboriginality, and added unsupported assertions about schizophrenia, an episode and speeding, creating a negative and dangerous impression on grounds at least partly including race. The applicant was victimised because, after making allegations of racial discrimination during the office interchange, he was required to leave without a fair opportunity to respond, publicly...

Jurisdiction
Australia
Judgment Date
24 October 2023
Procedural Posture
Complaint of Racial Discrimination and Victimisation Under the Anti Discrimination Act, 1977 (nsw) / Principal Judgment After Hearing
Outcome
The racial discrimination complaint was substantiated in part, the remainder of that complaint was dismissed, and the victimisation complaint was substantiated.
Legal Topics
['racial Discrimination' 'victimisation' 'provision of Goods and Services' 'liability of Principals and Employers' 'holiday Park Eviction and Banning' 'compensation for Non Economic Loss']
['anti Discrimination Law' 'human Rights' 'administrative Law'] ['racial Discrimination' 'victimisation' 'provision of Goods and Services' 'liability of Principals and Employers' 'holiday Park Eviction and Banning' 'compensation for Non Economic Loss']

Case Brief

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Procedural Posture

Complaint of Racial Discrimination and Victimisation Under the Anti Discrimination Act, 1977 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant was racially discriminated against in relation to a holiday park booking change, office interchange, incident report, mural removal, Council response, and barring from Council-owned parks.' 'Whether the applicant was victimised after alleging racial discrimination during the office interchange on 2 November 2021.' 'Whether Shoalhaven City Council was liable for acts of park managers and staff under s 53 of the Anti-Discrimination Act, 1977 (NSW).' 'What remedies should be ordered for any substantiated racial discrimination or victimisation.']

Ratio Decidendi

The booking change itself, office interchange, mural removal and Council complaint handling were not proved to be racial discrimination, but the incident report racially discriminated against the applicant because it shifted the focus from his site-booking complaint to racialised assertions about land, highlighted his Aboriginality, and added unsupported assertions about schizophrenia, an episode and speeding, creating a negative and dangerous impression on grounds at least partly including race. The applicant was victimised because, after making allegations of racial discrimination during the office interchange, he was required to leave without a fair opportunity to respond, publicly...

Court Disposition

The racial discrimination complaint was substantiated in part, the remainder of that complaint was dismissed, and the victimisation complaint was substantiated.

Orders

  • ["The applicant's claim of racial discrimination is substantiated in part." "The remainder of the applicant's complaint of racial discrimination is dismissed." "The applicant's complaint of victimisation is substantiated." 'An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28...