Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139

ADMINISTRATIVE LAW – whether court took into account irrelevant considerations – whether court failed to take into account relevant considerations – procedural fairness – unrepresented litigant prevented from putting submission

APPEAL AND NEW TRIAL – primary judge did not address the elements of the legislation – postulating alternatives but failing to make a finding – inconsistencies in evidence unresolved – forensic advantage of trial judge – fact finding process of trial judge – decision at trial “glaringly improbable” or “contrary to compelling inferences” – review of findings of fact based on trial judge’s assessment of credibility of witnesses – whether findings inconsistent with incontrovertibly established facts – credibility undermined by other evidence unchallenged, unanswered and ostensibly reliable – power of appellate court to set aside findings – errors made by primary judge causing trial to miscarry – proceeding remitted to Federal Circuit Court for retrial – retrial limited to matters agitated on appeal

EVIDENCE – standard of proof in civil proceedings – standard of proof in discrimination proceedings – balance of probabilities – higher standard of proof erroneously applied – requirement to take into account gravity of matter – drawing of inferences – failure to reconcile conflicting evidence – benefit of doubt on basis that respondent was unsophisticated and obtuse – conflicting conjectures about respondent’s knowledge and intent – failure to weigh up the strength of cumulative evidence – failure to assess demeanour of key witness in light of all the evidence

HUMAN RIGHTS – discrimination – racial discrimination – correct test to be applied under s 9(1) of the Racial Discrimination Act 1975 (Cth) – act involving distinction, exclusion, restriction or preference – discrimination based on race, colour, descent or national or ethnic origin – purpose or effect of nullifying or impairing – recognition, enjoyment or exercise of any human right or fundamental freedom – on equal footing – right to just and favourable conditions of work – causal nexus between act and race – act done for more than one reason – vicarious liability for racial discrimination – comments referring to “black babies” and “Coon cheese” likely to offend an Aboriginal person – whether racist remarks may constitute racial discrimination – whether occasional politically incorrect banter has requisite discriminatory purpose or effect – whether response to complaint is a relevant consideration in determining whether there was discrimination – whether remarks were innocent – racially-based remarks may affect a person’s self-worth and disadvantage them in their conditions of work – subjective sense of injustice

HUMAN RIGHTS – termination of complaint – Australian Human Rights Commission – application to Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint