Discrimination claims in the Federal Circuit Court

This factsheet sets out the process to make a claim in the Federal Circuit Court (“the FCC”) under the:

• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)

In most cases any claim under these laws must be started in the Australian Human Rights Commission (“the Commission”). The Commission will organise a mediation between you and the person you are complaining about to try to resolve your complaint. If no agreement is reached through mediation, the Commission will terminate your complaint and give you a Notice of Termination that will let you make an application to the FCC if you want to continue.

It is important to understand that the acceptance and mediation of a complaint by the Commission does not necessarily mean that the complaint has a good chance of succeeding. Pursuing a case beyond the Commission stage and going to court is time consuming. If you don’t have a good case and go to court anyway, you may be ordered to pay the other party’s legal costs, which can be very high. Therefore, before you go to court you should think about whether you have the evidence to prove your cause of action.

Time limits

An application to the FCC must be made within 60 days of the date on the Notice of Termination you receive from the Commission.

How to apply

To apply to the FCC under one of the above discrimination acts, you will need to prepare:

1. Application – Human Rights; and
2. Applicant’s Genuine Steps Statement.

Application – Human Rights

The Application – Human Rights has a number of different parts. Below are specific comments about some of the sections, but generally:

• You will be the Applicant and the Respondent will be the person or company who you allege has committed unlawful discrimination against you;
• At the bottom of the first page of the Application, you will need to set out your details, including a street address within Australia that you are happy for the other party and the court to send any relevant documents to; and
• Before you lodge your Application with the court you will need to attach a copy of the complaint you made to the Commission and a copy of the Commission’s Notice of Termination.

Part A – Final and Interim Orders

Under Part A of the Application, you will need to list the final and interim orders you are asking the court to make.

An interim order is an order you want the court to make straight away, before deciding your overall claim. This might include an order that you can have an extension of time to lodge your claim with the FCC if you did not file your Application within the 60 day time period.

Final orders are the orders you want the court to make after hearing your case, such as an apology or compensation.

It is important to note that damages in discrimination claims are designed to place applicants in the position in which they would have been if there had not been an act of unlawful discrimination committed against them – they are not designed to impose punishment on the Respondent. Generally, there are three types of damages you can claim:

• Special damages, which includes economic loss. An example would be loss of earning capacity if a person left their job because of sexual harassment. They could claim damages for the time between when they left the job and when they found an alternative job;
• General damages, which includes non-economic loss for hurt and humiliation; and
• Exemplary or aggravated damages. Exemplary damages are only awarded in limited circumstances where there is evidence of malevolence, spite or ill will.

It is essential that you have evidence of the loss and damage you say you have suffered.

Part B – Grounds of Application

In this section, you will need to set out the factual basis for your claim (that is, you will need to list the facts that demonstrate you have a cause of action). The purpose of this section is to tell the court your story and explain why you should get the orders you are asking for. Try to be as clear and concise as possible and relate the facts without emotion or personal comment.

The facts you will need to include will vary depending on what breach of the discrimination law you say has happened.

For example, if your complaint is that you were subject to age discrimination during an employment recruitment process, the facts you are relying on could look something like this:

On 1 March 2013 I saw the position of salesperson at Bob Egg Pty Ltd (“the Respondent”) advertised in The Courier-Mail.

On 12 March 2013 I forwarded my completed application for the position to the Respondent via email.

On 30 March 2013 I attended an interview at the Respondent’s premises at 100 Bob Egg Lane, Brisbane.

On 12 April 2013, I spoke to Susan Egg, a representative of the Respondent, by telephone. We had the following conversation:

Susan said: “Hi Larry, this is Susan. I’m calling to tell you that you have been unsuccessful in your application as salesperson at Bob Egg Pty Ltd.”

I said: “I’m sorry to hear that, can you give me any feedback about my application?”

Susan replied: “You had all the necessary qualifications but we were looking for someone younger than you to fill the position so we went with a different candidate.”

Since that time, I have applied for five other jobs but have been unable to secure a position.

Genuine Steps Statement

The Civil Dispute Resolution Act 2011 (Cth) requires that parties to court proceedings take genuine steps to resolve a dispute before commencing proceedings. For discrimination matters, this requirement is fulfilled by the mediation process you would have completed with the Commission as long as you genuinely participated in that process and did not unreasonably refuse any offers made by the other party.

Failure to take genuine steps to resolve a dispute before coming to court will not invalidate the court proceedings but may impact on what orders the court makes about costs at the end of the proceedings.

The Applicant’s Genuine Steps Statement requires you to list the steps you have taken to resolve the dispute before filing proceedings. For example, you might say:

• Attempts have been made to mediate through the Australian Human Rights Commission.
• The Australian Human Rights Commission has issued a Notice of Termination for matter [INSERT THE COMMISSION REFERENCE], which is the matter dealing with the dispute between myself and the Respondent which is the subject of this Application, on the basis that there was no reasonable prospect of the matter being resolved.
• The Respondent refused to participate in the mediation process before the Australian Human Rights Commission.

Filing and serving your documents

Once you have completed both forms you will need to lodge them with the court (called filing). You can file your documents online or in person at the Federal Circuit Court Registry.

There will be a filing fee payable to lodge your application (currently $55 but check current fees here). In certain circumstances you can apply for a waiver of this fee. See our Fee waiver guide – Federal Circuit Court factsheet for more information.

A sealed copy (which is a copy stamped by the court) will then need to be personally served on all the people you have named as Respondents at least seven days before the first court date.

For an individual, personal service means that the document must be taken to the person, the person must be identified as the person named on the document, and the document handed to them. If the person refuses to take the document, the person serving it may put the document down in the presence of the person to be served and tell the person what the document is. If you are not comfortable serving the creditor yourself, you can get a bailiff of the court or a process server to do it for you for a fee.

For a corporation, personal service requires you to go to the registered office of the corporation and to leave a copy of the documents with a person in the service of that corporation. The registered office of a corporation can be different from the company’s principal place of business. You should obtain a current company extract from the Australian Securities and Investments Commission which will show the company’s registered address.

In addition to serving any Respondents, you will need to give a sealed copy of your court documents to the Commission at least five days before the first court date.

Progress of proceedings

When you file your documents, you will be given a time and date for the first hearing of your Application, which will be a directions hearing. At the directions hearing, the FCC will give you and the Respondents a timeline to complete all the necessary documents and meetings needed to get the proceedings ready for a trial. Throughout the proceeding you can expect:

• To be served with a Response from the Respondent or a Notice of Address for Service – see rules 4.03 and 6.01(2) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules);
• To be required to file and serve affidavit material which will contain your evidence and that of your witnesses – see Division 15.4 of the FCC Rules;
• To receive affidavit material from any Respondents;
• To attend a mediation; and
• To attend a final hearing at which all your witnesses must be present to be cross-examined.

Useful links

You can get further information about discrimination from the following organisations:

Australian Human Rights Commission
P: 1300 656 419
W: http://www.humanrights.gov.au

Basic Rights Queensland (for disability discrimination)
P: 1800 358 511
W: http://www.brq.org.au