CORRS CHAMBERS Westgarth has played a key role in a landmark case which will pave the way for victims of discrimination to obtain effective remedies.
A team from Corrs, working with the Aboriginal Legal Service (ALS), acted on a pro bono basis on behalf of Kaye Campbell, an Aboriginal woman who alleged that she and her family had been subjected to racial abuse by her neighbour, Mervyn Kirstenfeldt, in breach of the Racial Discrimination Act 1975.
Among the allegations, Campbell claimed that Kirstenfeldt called her family “niggers”, “coons” and “black bastards”, told them to “go back to the scrub where you belong”, and at one stage threw a brick at her pregnant cat, causing it to miscarry.
In a judgement which sets an important precedent for other victims of racial discrimination, the Federal Court made a declaration that Kirstenfeldt had breached the Act and he was ordered to give Campbell a written apology and pay her $7500 in compensation.
Campbell, through the ALS, had originally taken her complaint to the Human Rights and Equal Opportunities Commission (HREOC), which is now the Australian Human Rights Commission. However, according to the Federal Court judgement, HREOC terminated the complaint on the grounds that there was no reasonable prospect of the matter being settled by conciliation. Specifically, the HREOC judgement stated that it had been “unable to obtain a response from Mr Kirstenfeldt and it appears that he is unwilling to participate in the Commission’s process”.
Corrs partner Spencer Flay, who worked on the case, explained that non-participation is a common problem encountered by victims of discrimination and generally matters don’t progress any further, despite the fact that this recourse to the Federal Court exists. The reason, Flay believes, is the cost involved in taking the matter further.
“Ms Campbell is in state housing [and] from a low socio-economic background, and to bring [cases] before the Federal Court costs money. And because a matter like this had not gone before the courts it’s difficult to make that investment not knowing the outcome, not knowing the process,” Flay said.
However Flay believes that the success of this case may prompt victims of discrimination to pursue this avenue in the future.
“It’s definitely an encouragement to the ALS that there is this avenue for their clients which was untested before. So I think they’ll have a lot more confidence from this decision that the process does work.”
The response to the decision from the ALS seems to back up Flay’s predictions. In a letter to Corrs following the judgement, a senior solicitor from the ALS wrote: “This is a fantastic, groundbreaking result. Never before in my time at the ALS has there been a decision like this.”
Meanwhile, The West Australian newspaper reported that Kirstenfedlt denied doing anything wrong, and said that he only issued the apology, at the insistence of his lawyer, to get the matter “out of his hair”.
The Corrs team included Flay, pro bono partner Julian Sher and a number of other solicitors. They assisted the ALS on the matter by preparing the application to the Federal Court, including a number of supporting affidavits. Thomas MacFarlane acted as counsel at the hearing.