A School v Human Rights & Equal Opportunity Commission

A SCHOOL v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AND MRS J (ON BEHALF OF HERSELF AND AJ)
No. SG 45 of 1998
FED No. 1437/98
Number of pages - 23
Discrimination - Evidence - Administrative Law

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

MANSFIELD J

Discrimination - review of decision of Human Rights and Equal Opportunity Commission - allegation of discrimination in provision of educational services contrary to s 22 of Disability Discrimination Act 1992 - consideration of meaning of direct discrimination - whether definition imposes positive duty in some circumstances - whether Commission misdirected itself in finding direct discrimination under s 5 - whether Commission erred in finding indirect discrimination under s 6 - whether Commission failed to deal with a complaint of harassment under s 37.

Evidence - course of evidence and addresses - documentary evidence - whether reception into evidence of contemporaneous note without opportunity to cross-examine - rule in Browne v Dunn.

Administrative Law - procedural fairness - whether parties given opportunity to address issue of causation of loss.

Administrative Decisions (Judicial Review )Act 1977

Disability Discrimination Act 1992, ss 3, 4, 5, 6, 16(3), 17(2), 18(4), 19(2), 21(2), 22, 23(2), 24(2), 25(3), 27(3), 28(3), 37 45, 69, 76(1), 79(1), 83, 95, 98, 103, 105A

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13, applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied

Kioa v West (1985) 159 CLR 550, cited

National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, applied

Twist v Randwick Municipal Council (1976) 136 CLR 106, applied

O'Rourke v Miller (1984-1985) 156 CLR 342, considered

Browne v Dunn (1893) 6 R. 67, considered

Marelic v Comcare (1993) 47 FCR 437, followed

White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169, followed

Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162, considered

ADELAIDE, 15 May 1998 (hearing), 11 November 1998 (decision)

#DATE 11:11:1998

Appearances

Counsel for the Applicant: Ms L Powell QC

Solicitors for the Applicant: Mellor Olsson

First Respondent files submitting Appearance

Counsel for the Second Respondent: Mr S Tilmouth QC with him Ms S Lorenz

THE COURT ORDERS THAT:

The decision of the Human Rights and Equal Opportunity Commission ("the Commission") that the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and that the School was responsible for a specified percentage of any damages suffered by AJ, be set aside.
2. The question of whether the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the Disability Discrimination Act 1992 (Cth), and the determinations which might then be made if such discrimination is made out, be referred back to the Commission for rehearing in accordance with these reasons.
The Commission hear and determine the complaint of harassment in breach of s 37 of the Disability Discrimination Act 1992 (Cth) in respect of the incident alleged at the start of term one in 1995.
4. In all other respects the decision of the Commission given on 23 March 1998 is affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MANSFIELD J

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") to review a decision of the Human Rights and Equal Opportunity Commission ("the Commission") made on 23 March 1998, following an inquiry conducted under s 79(1), Disability Discrimination Act 1992 ("the DD Act"). Appropriately, the Commission appeared only to submit to any order of the Court.

The Commission's inquiry was with respect to a complaint made by Mrs J ("Mrs J") on her own behalf and on behalf of her daughter AJ ("AJ") lodged with the Commission on 12 August 1996. The Commission deferred addressing the question whether Mrs J had the status to be a complainant in her own right, and no matter concerning that issue has been raised before me. The complaint alleged both direct discrimination and indirect discrimination by a school ("the School") in relation to AJ's education at the school conducted by the School. In particular, it was alleged:

(1) that the School, in providing educational services to AJ, engaged in direct discrimination by treating AJ less favourably than students without a disability in that she was not provided with adequate work or supervision during those periods when she was unable to attend the school or worked in the library: s 5 of the DD Act, and
(2) that the School, in providing educational services to AJ, engaged in indirect discrimination by imposing a requirement or condition that AJ should regularly attend upstairs classrooms in order to access the education provided by the School, and that she could not comply with that requirement or condition and that it was unreasonable in the circumstances: s 6 of the DD Act.

It was also alleged that two of the teachers at the school, when AJ returned to the school on crutches after her absence in the first term in 1996, made remarks to her which constituted harassment; and also that another teacher in term four in 1995 had made remarks to her which constituted harassment: s 37 of the DD Act.

The Commission identified the sections principally relevant to the complaint as ss 3, 5, 6, 22 and 37 of the DD Act, and the parties on this application for judicial review also approached the matter on that basis.

The Commission recorded that, by agreement, the evidence at its inquiry should be confined to the question whether the complaint was substantiated. It was further agreed that, if the Commission found the complaint to be substantiated, the inquiry would continue at a later date for the purpose of receiving evidence relating to the content of any determination that might be made under s 103 of the DD Act. Section 103 entitles the Commission, if it finds a complaint substantiated, to determine various matters including making a declaration that the subject of a substantiated complaint has engaged in specified unlawful conduct and should not continue or repeat that conduct, or other declarations including that a respondent to a complaint should pay to the complainant damages by way of compensation for loss or damage suffered by such conduct. The enforcement of such determinations in the present circumstances is provided for in s 105A of the DD Act. Again, notwithstanding that no declarations have been made, nor indeed has any hearing been conducted for the purpose of any declarations, under s 103 of the DD Act, it has been accepted by the parties that it is both competent and appropriate for the Court to review the decision and the reasons for decision of the Commission given on 23 March 1998 containing a finding of discrimination against the School. It is not therefore necessary to address that question further.

BACKGROUND TO COMPLAINT

AJ was born on 12 August 1980.

In 1985 she commenced school at East Adelaide Junior Primary School. In 1987, she was diagnosed as suffering from Perthes disease, a disorder of her right hip, for which she underwent an operation in August 1987. In 1988, she moved out of the junior primary school into grade three, but she had further troubles with the disease and required another operation. She was reluctant to continue at that school and left during the year. In 1989, she spent her school year at St Monica's, a local primary school, and then in 1990 and 1991 she attended St Aloysius College. She again decided that she wished to change school, and so during 1992 she attended Walkerville primary school, initially repeating Year 6, and continuing there in Year 7 during 1993. It then became necessary to consider where she would undertake her secondary schooling.

In July 1993, AJ was enrolled to commence Year 8 at the school in 1994. The fact of her Perthes disease was reported to the School. In the enrolment interview it was agreed that she required no special consideration, except that she should not be pressed to undertake more activity in physical education than she herself wished. In particular, it was not then anticipated that AJ would have any problems with stairs at the school.

H House was one of six academic and pastoral houses in the middle school of the school, covering Years 8, 9 and 10. All students were allocated to one of those six houses. AJ was allocated to H House. The person in charge of H House was Mrs M ("Mrs M"). Each house had "home" rooms, and in the case of H House the home rooms were in an upstairs section of the school. That had the consequence that most of AJ's classes were taught in upstairs rooms of the school. She was therefore required to negotiate the stairs some fourteen or more times each week.

Unfortunately, soon after AJ commenced school, she began to experience significant pain in her hip, and it became progressively more difficult for her to continue to attend under the existing arrangements for members of H House. She had increasing absences from school. On many days, when she was well enough to attend the school, she worked in the library, which was located downstairs. The problem persisted, and worsened, during 1995. She had a major operation on her hip in June 1995. By agreement, she withdrew from the School for terms two and three in 1995. Following the operation, she returned to the School in term four in 1995 and coped much better. Early in term one in 1996, she jarred her hip and was absent for about three weeks. She returned to the school in the beginning of March 1996, on crutches, and remained at the school during that term.

AJ did not return to the school after term one in 1996.

THE FACTUAL ISSUES AND THE COMMISSION'S FINDINGS

The Commission first addressed the complaint of indirect discrimination. That aspect of the complaint required the Commission to determine whether the School had imposed a condition that AJ regularly attend classes which were located upstairs. The School disputed that it had ever imposed such a condition.

When AJ had been allocated to H House, no question as to her capacity to use the stairs at the school to access the upstairs home rooms of H House had been raised. The Commission accepted the evidence of Mrs M that during March 1994 she was alerted to the fact that AJ was having some difficulties with the stairs, so that on 17 March 1994 Mrs M had a telephone conversation with Mrs J when she suggested that AJ be transferred from H House to another of the six houses with home rooms on a ground floor section of the school campus and that Mrs J then rejected that suggestion. As one of the grounds of review raised by Mrs J relates to the Commission's findings as to that conversation on 17 March 1994, I simply note the matter at this point.

During term one, AJ missed 12 days' schooling. The Commission did not find that all or any of those absences were due to her hip problem. The Commission also accepted Mrs M's evidence that she raised the question of a change of house again in April 1994, shortly before the end of the first term but again that suggestion was rejected. The Commission's findings about the discussions between Mrs M and Mrs J in March and April 1994 were in the face of different evidence given by Mrs J which the Commission did not accept, albeit accepting that all witnesses before it were endeavouring to be truthful. Mrs M was then on leave during terms two and three in 1994 and returned to the school in term four.

It was common ground that early in term two a formal meeting was held between the Head of the Middle School and Mrs J to discuss the prospects of changing AJ's classes to downstairs classrooms. At that time, the Head raised the question of a change of house to achieve that outcome, but his suggestion was rejected. Understandably, AJ was reluctant to make a change of house due to the personal friendships she had made in H House. AJ could not see why H House should not itself be moved downstairs. It appears that the Commission also accepted that a change of house was also proposed to Mrs J some time later in 1994 by the Acting Head of H House whilst Mrs M was on leave. The possibility of a change of house to a house with home rooms downstairs was again raised by the Head of the Middle School with Mrs J in early 1995.

Even with a change of house, computing was taught only upstairs during 1994. Normal access to the computing class was by a set of external stairs, which were not able to be used by AJ whilst she was on crutches during that year. The School however offered her the use of certain internal stairs, which could be used by her even when on crutches. AJ's evidence was (as the Commission found) that she was not worried about computing, and that a computer was available to her in the library. The Commission declined to make any discrete finding adverse to the School in relation to computing classes. No issue based on that particular aspect is raised on this application.

The consequence of those factual findings, as the Commission found, was that the School did not require AJ to access the upstairs classrooms in order to avail herself of the educational services offered by the School. In the words of s 6 of the DD Act, there was no "requirement or condition" imposed by the School upon AJ with which persons without her disability would be more able to comply. It did not therefore engage in indirect discrimination.

The issue as to direct discrimination involved more subtle findings of fact. The Commission observed that the School could not discharge its responsibility to educate AJ simply by offering her a change of house, even if such a repeated offer was "repeatedly rejected, perhaps unreasonably". The Commission observed:

"The claim of less favourable treatment must therefore be determined in the light of the circumstances that existed. Of course the history of AJ's time at the School is dominated by her illness and the pain it imposed upon her. This was the primary cause of the disastrous outcome of her time at the School. It accounts for her frequent absences from the School and from her friends; it accounts for the embarrassment of being different from the other students, particularly when she was forced to rely on crutches; it accounts, at least in part, for the missed lessons and the consequent lack of self-esteem and a sense of pride and achievement in her work."

It then expressed what it regarded as the critical question as follows:

"The critical question is whether the School was partly responsible for this personal distress and her lack of achievement because it treated her less favourably than it treated the other students."

Counsel for both parties before me accepted that the issue, so expressed, was properly expressed.

The 1994 year involved in all some fourteen weeks of absence from the school, mainly during the second and third terms. Mr A, deputising for Mrs M over those terms, was found to have been responsive to AJ's needs for work while she was at home and while she was working in the library. Mrs J also, as the Commission found, acknowledged that Mrs M had always been very concerned and caring for AJ and her particular difficulties, though she was often unavailable due to her other commitments. The Commission did not make any other findings critical of the School during 1994, noting that there was a reasonable flow of work from teachers and only a couple of classes when AJ was left in the library without work. Her term reports were generally positive and encouraging.

The Commission described 1995 as a "disastrous year". The operation was apparently postponed on more than one occasion, and eventually carried out on 1 June 1995. AJ was withdrawn from the School on the decision of her parents for terms two and three. During that period, the School sent her flowers and goodwill messages, and gave her copies of the mid-year examination papers so she could have some idea of what was going on. The Commission also observed:

"Nevertheless, despite the formal withdrawal from the School, it would have been pastorally helpful for some physical contact to have been maintained with her, and for some effort to understand the progress she was making with Open Access learning during that period. The School did not attempt to ascertain how AJ got on with Open Access, or to ascertain her state of knowledge when she returned in term 4."

The School early in first term in 1995 went to considerable effort to transfer some of AJ's classes downstairs, whilst she remained a member of H House. That effort was partly successful only. Several important subjects were taught upstairs. In one subject, taught upstairs, she was transferred to another class group taught downstairs but in a slightly higher stream of teaching; the School thought the decision was in her best interests, but AJ was upset as she felt exposed due to her level of achievement. By arrangement, she spent time in the library when her disability prevented her from attending upstairs classes. She was apparently working there, and the librarian frequently asked if there was anything she needed but got a negative response. Despite the appearance of being diligent and resourceful, AJ however said she was lonely and depressed and lacked any sense of achievement or of being worth anything. AJ at no time sought help from the librarian or the school counsellor. No written complaint was received by the School concerning AJ's schooling or pastoral care. As noted above, she was withdrawn from the school during terms two and three in 1995.

An aspect of the conduct complained of related to the fact that the School did not post home the weekly notices when AJ was not at school to collect them, or send home work for her during her absences. It was not the School's practice to post home the weekly notices issued to students to those students who were absent unless requested to do so. Nor was it the School's practice to send work home when a student was unable to attend school, again unless requested by parents. The Commission accepted that evidence. It did not find that such requests were made but not met. It concluded, however, that it would have expected that AJ's difficulties:

"were of an exceptional character when compared with the normal mishaps that might keep a student from school for a day or so from time to time and would have warranted a somewhat more sensitive response from the School."

AJ suffered a setback to her recovery in early 1996. After an absence of seventeen days, she returned to the school, again dependent on crutches. Shortly after that absence commenced, Mrs M was informed of the absence and the reasons for it. Her note of the conversation with Mr J, AJ's father, on 26 February 1996 includes:

"AJ is devastated and extremely depressed as well as in constant pain. She thinks of herself as inadequate and dumb. She is desperately in need of some support. Is it possible for the school to supply a couple of ex-school uni or yr 12 students to give some coaching lesson [sic] so she feels some link with her education? It would only be for a couple of hours a week, she couldn't do more. In this way she would feel less "dumb" and at least feel like she's part of something.
It would also allow her to focus on something else other than the pain. Any suggestions to help her are needed and welcomed."

The Commission found that there was no response from the School, except that Mrs M later when she "bumped" into AJ in the schoolyard gave her a teddy bear and a get well card. AJ in fact returned to the school on 1 March 1996, so there were three days intervening between those events. AJ then left the School at the end of term one in 1996.

The Commission found that AJ left the school in an angry and frustrated state, with a sense of failure and worthlessness brooding over her. It found that "the lack of ongoing pastoral care" of what it regarded as sufficient quality was one factor, but not a major factor, in the breakdown of AJ's psychological health following her leaving the school in 1996. The major factors were the Perthes disease itself, the deterioration that led to the operation in 1995, the hopes of a new beginning that post-operation reports engendered only to be dashed by the accident early in term one in 1996. It concluded:

"The efforts of the School, if made in the direction I have indicated, may have been rejected by AJ and if that had happened it may have simply been a reflection of her own distress, but I find that the effort should have been made.
...
It is understandable that Mrs J's concern for her daughter's welfare should have led her to place a greater responsibility on the School than in my opinion is warranted by the evidence.
On the other hand, I find the School's failure to heed the cry for help from AJ's father on 26 February 1996 was most unfortunate. It was a critical time in AJ's school experience. A more sympathetic and relevant response may have come too late, but the effort should have been made."

Thus the Commission found that AJ was subjected to less favourable treatment within the meaning of s 5 of the DD Act, and the complaint of direct discrimination had been substantiated. It also added that:

"I have no doubt that the School always had AJ's best interests at heart. My finding of liability is based on the fact that I am satisfied that in the face of circumstances which were unusual and extremely difficult for all concerned, the School could and should have striven to do a little more."

The Commission concluded that the School was only responsible for 25 per cent of any damages suffered by Mrs J and AJ.

The complaint of harassment was identified by the Commission as relating to two incidents on or about 1 March 1996, the day AJ returned to the school after a long absence. She said that two teachers had separately made offensive remarks to her in breach of s 37 of the DD Act. The two teachers gave evidence. The Commission concluded that AJ had misunderstood what had been said to her by those teachers, and that her complaint in that regard was not made out. Those conclusions are not the subject of challenge on this application. Mrs J and AJ however complain in their cross-application that the Commission did not deal with a third occasion said to have constituted harassment by a teacher, which occurred during term four in 1995.

THE GROUNDS OF REVIEW

The School, on this application, sought to have reversed the decision of the Commission that it had directly discriminated against AJ. Both Mrs J and AJ, by application for cross-review, also complained about the decision of the Commission in so far as it apportioned responsibility for the breakdown in AJ's psychological health, and in relation to the conclusions of the Commission that there had been no indirect discrimination and no harassment.

The School submitted first that the Commission erred in its approach to the complaint of direct discrimination under s 5(1) of the DD Act by importing from s 5(2) a positive obligation to treat a disabled person more favourably than a person without a disability, rather than by asking whether the person with a disability has been treated less favourably than a person without such a disability. It also contended that the objective assessment required by s 5, in the light of the findings of fact by the Commission, led to the conclusion that judged objectively there had been no infringement of s 5 of the DD Act. It was next submitted that the finding of the Commission that the offer by the School to transfer AJ to another house with downstairs home rooms first made in March 1994, and renewed thereafter, of itself meant that the School had not infringed s 5 of the DD Act.

The School further submitted that the findings of the Commission of the failure to respond to the "cry for help" on 26 February 1996, the failure to provide pastoral contact during terms two and three in 1995 when AJ was not enrolled, the absence of a person or persons available to show persistence and friendly interest and to 'drop in on her from time to time', and overall, the finding that a more sensitive response and effort from the School was warranted and should have been made, did not amount to discriminatory conduct under s 5 and that the School was under no obligation under s 5 to have "striven to do a little more".

Mrs J and AJ submitted that the finding by the Commission that the School was only responsible for twenty-five percent of any damages suffered as a result of the infringement was made in breach of the rules of natural justice because they were not given the opportunity to call evidence or to make submissions with respect to that issue.

Secondly, they complained of two findings of the Commission. The first was the Commission's finding that an offer was made in March 1994 that AJ transfer to a home group located downstairs. It was made in part in reliance upon a note made by Mrs M of a telephone conversation with Mrs J on 17 March 1994, received into evidence only belatedly, and they submitted that they were not given the opportunity to address evidence, or to make full submissions, as to its reliability. The second was that the Commission erred in finding that the Head of the Middle School of the school had not discriminated against AJ by suggesting she would be better off being placed in another school. That issue was ventilated in the evidence before the Commission, and the Commission concluded that Mrs J had misunderstood the comments made in the conversation giving rise to this aspect of the complaint. It was contended that the finding of the Commission on what transpired in that conversation was in breach of the rules of natural justice because Mrs J was not afforded an opportunity to address the question of whether there was a misunderstanding on her part as to that conversation. Those two findings were said to underpin the conclusion that the school had not indirectly discriminated against AJ. Subject to those factual matters, they did not seek to have reversed the decision of the Commission that the School had not indirectly discriminated against them.

Thirdly, they submitted that the Commission simply failed to address one of their complaints of harassment by a teacher contrary to s 37 of the DD Act. They did not seek otherwise to demonstrate reviewable error in respect of the findings of the Commission that the two particular occasions addressed by it did not constitute harassment.

THE LEGISLATION

The objects of the DD Act include the elimination, as far as possible, of discrimination against persons on the ground of disability in the area of education: s 3(a)(i). Sections 5 and 6 define direct and indirect disability discrimination in the following terms:

"5. (1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6. For the purposes of this Act, a person ("discriminator") discriminates against another person ("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:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."

The terms "accommodation" and "services" which are used in s 5(2) are each defined, but only in an inclusive way. Section 4 contains the following:

"'accommodation' includes residential or business accommodation;
...
'services' includes:
(a) services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; or
(b) services relating to entertainment, recreation or refreshment; or
(c) services relating to transport or travel; or
(d) services relating to telecommunications; or
(e) services of the kind provided by the members of any profession or trade; or
(f) services of the kind provided by a government, a government authority or a local government body;"

Section 22 deals with discrimination in education. It makes direct and indirect discrimination unlawful. The relevant part is subs (2), which provides:

"It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment."

Subsections (1), (3) and (4) relate to circumstances in which there is discrimination in accepting or refusing to admit a person as a student. It is common ground that they are not directly relevant for present purposes. It was also accepted by all parties that the School is an educational authority, and that the DD Act applied to the School.

Section 37 deals with harassment in education in the following terms:

"It is unlawful for a person who is a member of the staff of an educational institution to harass another person who:
(a) is a student at that educational institution or is seeking admission to that educational institution as a student; and
(b) has a disability;
in relation to the disability."

Part 4 of the DD Act deals with inquiries under the DD Act. Having received the complaint made under s 69, the Disability Discrimination Commissioner conducted an inquiry, then referred the matter to the Commission pursuant to s 76(1). The Commission's inquiry then proceeds under Div 3 of Pt 4. Under that Division, the Commission must give notice of the hearing, and give each party reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, and to make submissions to it: s 83. The Commission is empowered to take evidence on oath or affirmation and to summon a person appear to give evidence and to produce documents: ss 95(1) and (2). A party to the inquiry may also call witnesses, and a witness may be examined, cross-examined and re-examined: ss 95(3) and (4).

Section 98 provides:

"(1) For the purposes of an inquiry, the Commission:
(a) is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit; and
(b) must conduct the inquiry with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commission permit; and
(c) may give directions relating to procedure that it thinks will enable costs of delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties; and
(d) may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done.
(2) The member presiding at an inquiry is to determine any question relating to the admissibility of evidence and any other questions of law or procedure."

As noted earlier, under s 103 the Commission after holding an inquiry may find a complaint substantiated and make any one or more of this range of determinations referred to in that section.

CONSIDERATION OF CONTENTIONS

Section 5 defining direct discrimination requires a comparison to be made between the way in which the School treats or would treat a student without a disability, and the way in which it treated AJ, in the circumstances. In that sense, it does not impose an obligation upon the School to treat AJ more favourably than it would treat a student without a disability. If there is discriminatory treatment, it must be on the ground of the disability. If one of the reasons for such treatment is the disability of that person, then the conduct constituting the discriminatory treatment is taken to be done because of that reason: s 10. The reason need not be the dominant or a substantial reason. Such discrimination, if it is found by the Commission to have been made out, is unlawful if it encompasses any one or more of the three matters addressed by s 22(2)(a), (b) or (c).

As noted above, the Commission identified the "critical question" as whether the School was in some measure responsible for AJ's personal distress and lack of achievement "because it treated her less favourably than it treated the other students". The parties agreed that, in identifying the "critical question" in that way, the Commission was approaching the matter correctly. It was the succeeding part of the reasons in which the School contended the Commission had fallen into error, by interpreting s 5 as imposing a positive obligation to treat a disabled person more favourably. The particular passage is as follows:

"It will be remembered that s 5(2) of the Act ensures that it is not just a question of treating the person with a disability in the same way as other people are treated; it is to be expected that the existence of the disability may require the person to be treated differently from the norm; in other words that some reasonable adjustment be made to accommodate the disability."

Counsel for Mrs J and AJ submitted that the Commission did not, despite that passage, impose a positive obligation upon the School to treat a disabled person such as AJ more favourably than other students without AJ's disability. It was not contended that any positive obligation was imposed by s 5.

I do not conclude that the Commission fell into error in the way asserted. The construction of the quoted passage contended for by the School would overlook that the immediately preceding part of the Commission's reasons contains the "critical question", which the parties acknowledge to be correctly expressed. It is most unlikely that, having identified that question, which in accordance with the parties' contentions is correctly identified, the Commission would instantly express the issue in a different and incorrect way. The sentence complained of does not demand such an interpretation. Furthermore, after referring to s 5(2) in the terms referred to, the Commission then addresses the matters which it identifies as relevant to "the question", clearly in context a reference to the correctly expressed question identified by the Commission. Accordingly, I reject the first contention of the School that the Commission expressly misinstructed itself as to the proper meaning and effect of s 5 of the DD Act in the way contended for.

Before addressing the next submission of the School, it is in my view desirable that I make some further observations about s 5 of the DD Act.

I do not wish to be taken as accepting that the obligation not to discriminate against a person with a disability under the DD Act does not involve some obligation to take positive action with respect to a disabled person. Section 7, 8 and 9 recognise circumstances will exist that involve a person with a disability needing to be treated differently. They provide that the treating of a person with a disability less favourably because of such a need will itself constitute discrimination. The accommodation of that need may well require some positive action to be taken. The particular provisions indicating the relationships or events which attract the operation of the DD Act in Pt 2 of the Act then variously contain within them provisions which, in effect despite the definitional provisions of discrimination in ss 5-9, seek to make allowance for particular problems which might arise in the circumstances by the inflexible application of those provisions. For example, in the case of discrimination in employment, s 15(4) in broad terms removes the direct operation of those provisions if the person because of the disability is unable to carry out the inherent requirements of the particular employment, or the action necessary on the part of the employer to accommodate the disability would impose an "unjustifiable hardship" on the employer (the term "unjustifiable hardship" is defined in s 10): see Commonwealth v Human Rights and Equal Opportunity Commission (1997) 76 FCR 513. Similar provision is made in ss 16(3), 17(2) and 18(4). There are provisions with a like purpose, but in different terms in ss 19(2), 21(2), 22(3) and (4), 23(2), 24(2), 25(3), 27(3) and 28(3). I observed above that the "exempting provisions" in s 22, in particular that the provision of services and facilities required to accommodate a particular student's disability would impose an unjustifiable hardship on the educational authority, apply only with respect to the obligation to accept a person with a disability into the educational institution, or the terms of that acceptance, under s 22(1), and not to the way in which that person, once admitted to the educational institution, must be treated under s 22(2).

Section 5, including subs (2), is a provision which applies across the spectrum of relationships and circumstances expressed in Pt 2 of the DD Act. The determination of what is less favourable treatment for the purposes of s 5(1) must be measured in circumstances that are not "materially different", and s 5(2) provides that the fact that a person with a disability may require different accommodation or services does not provide a basis for making out that material difference. Thus, it is not necessarily the case that, where the DD Act applies to a particular relationship or circumstance, there is no positive obligation to provide for the need of a person with a disability for different or additional accommodation or services. To the extent that to do so would produce hardship, the particular provisions seek to make allowance for that, including s 22(4).

The absence of any "exempting" provision, such as s 22(4), in respect of the positive obligation which s 22(2) imposes itself gives rise to difficult questions. There may be circumstances where the educational authority may have been entitled to decline to admit a person with a disability under s 22(4), but did not exercise that opportunity through a common misunderstanding as to the extent of the disability. There may be circumstances where the disability comes on only after admission. It may be that the procedure envisaged by s 55 is then to be brought into play.

None of those matters was fully argued before me in relation to the operation of ss 5 and 22(2). In particular, it was not argued that, by reason of s 5(2), there was some positive obligation imposed upon the School which it had failed to fulfil. I also observe that in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 20 Mahoney JA said of s 39(1) of the Anti-Discrimination Act 1977 (NSW), which is of a similar general structure to that of s 5 of the DD Act, that the legislature had

"adopted the 'detriment' concept of discrimination: it has not seen the discrimination which is proscribed by these provisions as involving 'reverse discrimination' or 'affirmative action' discrimination in the sense to which reference was made in for example, Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61 ..."

It is not appropriate that I should in the present matter address in detail issues which the parties did not consider as necessary to determine the application for review. I am able to determine this application without doing so.

The School's alternative submissions included that, upon analysis of the Commission's reasons, it must nevertheless have misapplied s 5 by imposing a positive obligation upon the School to treat AJ more favourably than a student without a disability, notwithstanding that it had expressly identified the correct legal question. More accurately, the submission was that the Commission had imposed a positive obligation on the School to do all that it could, or reasonably could, to assist AJ without properly considering the comparative position which s 5 dictates. In considering that submission, I should not scour the Tribunal's reasons with an eye finely attuned to error but should review its reasons in a broad and commonsense way: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

The Commission's approach was to address the various occasions or periods when AJ was troubled by her disability and its consequences and to determine how the School treated her on those occasions or during those periods. I have referred to that factual analysis above. There are four main aspects of the School's conduct of which the Commission was critical; although they may be seen as illustrative of a more general and ongoing attitude, as being:

(1) the absence of any response to the "desperate cry for help" made in the telephone conversation of 26 February 1996; either as a specific occasion or as a reflection of a general response on the School's part;
(2) the failure to meet fully the pastoral desirability of some physical contact being maintained with AJ, and of some attempt to understand the progress she was making with Open Access learning, during terms two and three in 1995 when AJ was formally withdrawn from the school, and the failure to attempt to ascertain how she got on with Open Access or her state of knowledge when she returned in term four in 1995;
(3) the failure to meet fully the clear need, due to AJ's fragmented school program with her absences and time in the library, for pastoral and academic encouragement; and
(4) the lack of communication, given AJ's problems, in the failure to send home weekly notices during 1994 and term one of 1996 (her sister attended the school during 1995 and would have received them).

The Commission described those conclusions compendiously as constituting a "lack of ongoing pastoral care" which was a factor to the breakdown of AJ's psychological health following her leaving the school in 1996. It expressed its conclusions as follows:

"Despite the positive things that I have said about the School's efforts to provide a helpful educational environment for AJ during these two years, I cannot refrain from some criticism. I accept that Mrs M was genuinely concerned for AJ and did all that could have been expected of her. But she had another 150 students in H House to care for and could not give AJ her undivided pastoral care. But in my opinion, there was a clear need, once AJ's school program became so fragmented with her absences from school and her times in the Library, for some one or two persons to be available to her as a personal priority. It could have been her tutor, or the School Counsellor or the Librarian or the task could have been shared between two of these people. AJ needed someone in authority who by their persistence and friendly interest penetrated AJ's innate reserve and appearance of self-sufficiency; someone who would make it their business to know the work she was doing, to ensure that she had work to do and that it was being marked by the appropriate teacher; someone who would know when pain was keeping her at home and who would drop in on her from time to time, just to let her know that someone cared."

It then concluded that AJ was "subjected to less favourable treatment" within the meaning of s 5 and consequently that the complaint of direct discrimination was substantiated.

It was contended that the process of reasoning and analysis by the Tribunal focussed only on how AJ was, and could or should have been, treated and failed to address how the School treated, or would have treated, a student without a disability in much the same circumstances so that its conclusion really amounted to a finding of what the School ought ideally to have done for AJ, rather than a finding based upon a comparative analysis of what it would have done for a non-disabled student in much the same circumstances and what it did for AJ. The School accepts that one difficulty with that submission which it must overcome is that it flies in the face of the Commission's conclusion that AJ was "subjected to less favourable treatment within the meaning of s 5 of the DD Act".

Irrespective of the consequences of s 5(2) upon the proper construction of "discrimination", clearly a comparison is required between two sets of circumstances to enable a decision to be made as to whether there has been discrimination. One is the real set of circumstances as to how AJ was in fact treated. The other is the hypothetical set of circumstances as to how a student or students without that disability would have been treated, or the real set of circumstances as to how a student or students without that disability have been treated, in circumstances that are the same or not materially different. Section 5(2) elucidates what may, or may not, constitute a material difference.

The Commission's reasons and findings do not appear expressly to address how students without a disability such as AJ's were, or would have been, treated by the School, except in one respect. The factual findings, as noted above, were expressed in terms of what was needed for AJ in her particular circumstances. The comparison with other non-disabled students is of course a difficult one to make. That is especially so in the face of what the Commission described as "unusual and extremely difficult" circumstances. Those students not forced to be absent from school by disability, would not have prolonged absences or periods of time in the library working alone. The Commission has not made any observations as to whether there were other students who experienced prolonged or broken absences from school, perhaps for reasons of illness or travel or parents' commitments or other personal interests or activities, or how they were treated. The one exception where that issue was specifically addressed was with respect to the school notices and school work being sent home when students were absent for any prolonged period. The evidence was that the School did not send home the weekly notices or school work to be done, unless requested by the parents. The Commission appears to have accepted that evidence, as it said that AJ's exceptional circumstances "would have warranted a somewhat more sensitive response".

The position on behalf of Mrs J and AJ is that the School had available to other students the kind of services and facilities that could have been used to assist AJ, but did not make them available to AJ, and did not do so in part by reason of her disability. As noted above, they proceeded on the basis that ss 5 and 6 do not impose an obligation of affirmative action, so any failure to take affirmative action would not be unlawful under s 22 of the DD Act. It is put that the Commission's findings, properly categorised, do not impose such an obligation but are reached on the basis of an unexpressed, but implicit, comparison. Such a comparison must have been made as the Commission ultimately expressed its conclusion in terms of "less favourable" treatment. It was put that there is no finding, either in relation to the request conveyed on 26 February 1996 described as a "desperate cry for help" or otherwise, saying that the School should have provided some kind of home care or extra tutorial help that was not otherwise available from the school. Reference was made to the fact that, in AJ's school reports for the end of years 1994 and 1995, the comment was made that some pre-year preparation or preliminary reading would be of advantage. Neither the School nor the J Family followed that up. The submission was made that the School had "certain things in mind which were plainly within the sorts of things it would offer its students without a disability" but which were never followed up. However, nothing was referred to indicating that the School, when it made such comments in school reports, then followed up such comments in respect of any student, whether disabled or not, without initiative from the family. Nor was any reason proffered, nor apparent to me, why in this regard, the School would not treat AJ's needs for preliminary reading or preparation, whether requested or not, in any way different from that of other students because of her disability. The Commission did not so conclude. In my view, it was simply making an observation on that topic in the course of the historical description of AJ's schooling. It was contended overall that the Commission's findings generally did reflect findings as to what the School would do for other students in the way of academic and pastoral assistance but did not do for AJ, as follows:

"The school had tutors available, it had a counsellor available, it had a librarian available - all of whom were to ensure how students were doing, to ensure work was marked or assessed."

I have come to the conclusion that the Commission in reaching its findings and conclusion on this aspect did not properly assess the conduct of the School by the comparison which s 5 dictates, notwithstanding the passages in its reasons to which I have referred and the submissions put on behalf of Mrs J and AJ. Its reasons noted above are expressed in terms of AJ's needs and how they might have been met, and in terms of the efforts or steps that should have been taken. They do not identify how the School's treatment of AJ was different from that accorded to other students. They do not, except in the instance noted, discuss what would have been accorded to other students without her disability, in the same or similar circumstances. They do not expressly address why, in the event of any such differential treatment, that differential treatment occurred. The findings do not seek to determine why one reason for any such differential treatment might have been, or was, AJ's disability in the light of the findings as to how the School did seek to assist AJ and the evidence on those matters. In the one instance where a comparison was expressly addressed, the sending home of weekly notices or school work, there is no finding that AJ was treated differently, (and in fact the evidence is to the contrary), but rather that in her circumstances a more sensitive response was warranted. The criticism proffered of the School recognises that Mrs M herself could not have given AJ her undivided pastoral care. That was because of her wide responsibilities. Her treatment of AJ was not discussed in the comparative sense which s 5 is accepted as requiring. The Commission found that AJ nevertheless had a clear need for one or two persons to be available to her for such care as a personal priority. The reasons do not proceed to address whether such support was, or would have been, provided to other students in the same or similar circumstances and do not address whether one reason for the School treating AJ differently, if it did, was by reason of her disability. The Commission did not make any finding that the "cry for help" of 26 February 1996, in the context that AJ returned to the school on 1 March 1996, would have been treated differently if made on behalf of a student then absent but without AJ's disability. Again, its finding seems to import an obligation: a 'more sympathetic and relevant response ... should have been made', without consideration of the comparative position which the parties accepted was required.

I have therefore concluded that the Commission has failed properly to address the considerations dictated by ss 5 and 22, and that its decision finding that the School contravened s 22 of the DD Act by directly discriminating against AJ should be set aside. In my judgment, it is appropriate to refer the matter back to the Commission, differently constituted, for re-hearing or for further hearing in the light of these reasons.

There are a few other contentions to which I should refer. I do not accept the School's contention that the Commission fell into error by making findings adverse to the School as to how AJ was treated during terms two and three in 1995 when she was not enrolled as a student, and so it was argued at a time when s 22 of the DD Act did not apply. That is simply because I do not think that the conclusion of the Commission ultimately did have regard to that aspect; in my view, it was simply addressing chronologically the relationship and dealings between AJ and the School at that point in its reasons. Also, I do not accept the School's alternative submission that, having offered AJ a change of house to one with home rooms located downstairs, it could not thereafter infringe s 22 by directly discriminating against AJ. I agree with the observations of the Commission that the School remained under an obligation not to infringe the DD Act, including by not engaging in direct discrimination, whilst it provided educational services to AJ. During the continuance of those services, the DD Act continued to apply. Even if AJ had taken the opportunity to move to a downstairs home group, that would be the case. For example, in the event of further absences after such a move, the School might nevertheless have infringed s 22 by engaging in direct discrimination. The DD Act would continue to speak to her circumstances, as it would to the way any other student with a disability was treated.

The alternative submission put on behalf of Mrs J and AJ was that the Commission erred in categorising the School's requirement of AJ to be that of accessing the upstairs classrooms, and that the proper categorisation of its requirement was that AJ change home groups to a downstairs home group. It is then said that such a requirement of itself constitutes indirect discrimination, contrary to ss 6 and 22(2)(a) and (c) of the DD Act. The School's response was that the submission fails to recognise, by way of example, that it is not discrimination to provide to a person in a wheelchair access to a building by ramp. The provision of a ramp specifically for a person in a wheelchair is the type of conduct to which s 45 of the DD Act is directed. The requirement, or invitation, that AJ change houses to a home group located downstairs was one which, in my view, the Commission must have regarded as reasonable having regard to the circumstances of the case, and one with which AJ was able to comply, thus falling outside both ss 6(b) and (c). Although AJ did not accept that option, and may have acted reasonably from her own point of view having regard to her newly formed friendship group in declining it, I do not think that brings the matter within s 6. Her attitude was taken into account by the Commission in forming its view. There is nothing to indicate that the educational facilities offered through a downstairs home group were different from, or inferior to, those offered to members of H House. Accordingly, I reject that contention.

I turn to consider the matters raised by Mrs J and AJ. As the matter is to be referred back to the Commission for re-hearing, the attacks on the two findings of fact mentioned above, and the basis for them, may no longer be of critical relevance. Nevertheless, I propose to deal briefly with them.

The first matter concerns the complaint about the note of Mrs M of the conversation of 17 March 1994. The real issue which the Commission had to address was whether Mrs M, in a telephone conversation with Mrs J on that day, had raised the possibility that AJ be transferred to a house with its home rooms downstairs. Mrs M gave evidence of the conversation. It was apparent during her evidence that she had made a note of the conversation, as she gave evidence refreshing her memory from a photocopy of the note. It was not called for during her cross-examination, although Mrs J was then entitled to examine it. She did not then suggest that the note was, in any sense, a fabrication. Counsel for the School drew my attention to passages in Mrs J's evidence before the Commission which showed that she did not recall any such conversation with Mrs M in March 1994 concerning the possibility of AJ changing to a house with home rooms downstairs, and that she would in any event have ruled out such a possibility as AJ had formed a friendship group very quickly after commencing at the school. AJ had some recollection that her mother had told her in March 1994 that Mrs M had suggested a transfer to a home group located downstairs but that the suggestion had been rejected. Her re-examination suggested that her recollection may have related to an occasion only in May 1994.

The Commissioner, in the course of considering the matter at the close of evidence, sought the original note, and it was provided. Written submissions were invited with respect to it, and Mrs J made a written submission dated 19 February 1998 concerning the notebook in which the telephone conversation of 17 March 1994 is recorded as well as other conversations concerning other students. The Commission staff masked from her submission, before providing it to the Commission, a small section of the submission in the light of the objection of solicitors for the School on the ground of relevance. The deleted portion read:

"The notebook is a typical school exercise book, which appears to be quite thin. It has a total of 2 pages used, with messages written on both sides of the page. Dated January 1994 - March 1994, and from 18^th October 1994 on the second Page, a further 6 entries only. This notebook cover the messages of parents of 120 students for this time.
Mrs [M] stated during the hearing that she "writes everything down". 2 telephone conversations I had with Mrs [M] in February 1994 concerning AJ being teased about her name (by [F], a classmate) are not in this book."

The first paragraph of that deleted section is descriptive only. The gap in entries is partly explained by the fact that Mrs M was, as noted above, on leave for terms two and three in 1994. The second paragraph does contain an assertion that the notebook is not comprehensive of all parents' complaints or conversations, and that the evidence of Mrs M that she "writes everything down' is therefore unreliable. It may therefore suggest that Mrs M's evidence generally is unreliable. It does not suggest that the notebook or parts of it are not records of conversations or events which took place, i.e. that it or parts of it are fabricated. The balance of the submission which was provided to the Commission does squarely raise for the Commission's consideration a dispute about the fact of the conversation, reasons why the conversation would not have occurred as Mrs M had described, and that the "entry" of 17 March 1994 should be viewed with "a degree of caution" and "with suspicion" because it is self serving and the original was not produced during the hearing and for other expressed reasons. It is specifically put, although technically inaccurately, that no opportunity to cross-examine Mrs M in relation to her notes was given; it was noted by the Commission that Mrs J did not know that, during the hearing, she could have called for the book and cross-examined upon it.

Counsel for Mrs J and AJ submit that the finding of such a conversation on 17 March 1994 is important because, if there had been no offer of relocation to a downstairs house until May 1994, there is then the potential for the School to be found to have engaged in indirect discrimination contrary to s 22 in the period March to May 1994, and secondly because if the Commission had not accepted the conversation deposed it, it "may have looked at the events later in a completely different light". It is accepted that it was not up to the Commission to interrupt the flow of evidence, during Mrs M's cross-examination, to explain the opportunity of calling for the original notebook and the possible consequences of doing so. But it was nevertheless put that there was procedural unfairness because Mrs J was denied the opportunity to put a material point about the unreliability of the note, by the process of editing of her submission by the Commission staff, prompted by the objection of the School to the full written submission being received by the Commission for consideration.

In my view, it is important to note that the submission conveyed to the Commission included suggestions that Mrs M's evidence about the conversation having occurred may be unreliable and that the note itself is not a note of a conversation she had. By way of contrast, the deleted part of the submission does not suggest that the note itself is a fabrication, although it suggests that the notebook was not a comprehensive running record, but only episodic and noted only isolated conversations. Thus, it really only touches upon Mrs M's overall creditworthiness.

In my judgment, this aspect of the cross-application has not been made out. The Commission must comply with s 83. However, it has considerable scope to conduct its proceedings in an informal way, and it is not bound by the rules of evidence: s 98. Its procedures in this instance adopted the process of evidence by examination, cross-examination and re-examination. No complaint is now expressly made on that score in relation to Mrs M's evidence. Nor is there any complaint that submissions were not permitted about Mrs M's creditworthiness either generally, or on the topic of this conversation, in closing submissions. When it later decided to seek the note of 17 March 1994, it also provided the opportunity to make submissions about that document. It was only a small part of the submission then made which was excised before being seen by the Commission.

I do not consider that it has been made out that, in that process, there was a breach of s 83 in failing to give a reasonable opportunity to make submissions or, if their context in the circumstances is more extensive, in failing to comply with the rules of procedural fairness. It was not disputed by the School that the rules of procedural fairness, applied to the decision making processes of the Commission in the circumstances: Kioa v West (1985) 159 CLR 550. Thus Mrs J and AJ were entitled to a fair opportunity to know of the material before the Commission, and to respond to it if it was adverse to them: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, at 314-316; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109. Mason J in Kioa (above, at 585) expressed that:

"... the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case"

and see also per Wilson J at 601, and per Brennan J at 612-616. An illustration is provided by O'Rourke v Miller (1984-1985) 156 CLR 342.

In the present circumstances, I do not think the masking of that small section of the submission meant that procedural fairness was not accorded to Mrs J and to AJ. I have described the Commission's procedures above. They provided the opportunity to test Mrs M's evidence, and to adduce evidence to contradict it. They enabled submissions to be made on the topic of whether the conversation occurred. The basis of objection of the School to the particular section of the submission was that the allegation of selective note recording had not been put in cross-examination. It was concerned that the receipt of the full submission in those circumstances would be unfair to its interests. The opportunity had earlier been available to Mrs J to put that matter, and she had not done so. There was no application to recall Mrs M for further cross-examination on the topic. There is, in my view, merit in that submission. It was appropriate to bring the submission process to an end. I have also reached the view that any such failure would not, in the circumstances outlined, and in the light of the detailed submissions in fact considered by the Commission, result in any orders of the nature sought under s 16 of the ADJR Act. The making of orders is discretionary. I would not in any event make the orders sought, having regard to the extent to which the issue as to the occurrence or otherwise of the conversation was in fact ventilated in evidence and submissions.

Mrs J and AJ also complained about a finding of the Commission as to the content of a conversation between Mrs J and Mr D, Head of the Middle School, in May 1994. Mrs J's evidence was that Mr D had asked her to remove AJ from the school as she would be better off elsewhere. The Commission found that she had misunderstood his conversation. The conversation included the topic of providing a lift to help AJ gain access to upstairs classrooms. Mr D's evidence was that he said he did not know of any school in the neighbourhood which provided lifts, but that if Mrs J was able to find one then she may wish to consider transferring her daughter to that school. The Commission accepted that evidence. The detail of Mr D's evidence on the topic had not been put to Mrs J in her cross-examination, but only that it had never been suggested that AJ "would be kicked out". It was put that the 'bare denial' suggested in the cross-examination of Mrs J may have been inconsistent with Mr D's evidence. During the cross-examination of Mr J on the topic of that conversation, to which he too had been privy, it was put that at no stage was it suggested by Mr D that AJ should change school from the school. Any such suspected inconsistency could have been explored in his cross-examination, but it was not. There was no application to give further or rebuttal evidence by Mrs J. There was no objection to the evidence at the time.

It was contended that Mrs J in her evidence had not had the opportunity to know of and address the detail of the conversation as deposed to by Mr D, and so the conclusion that she had misunderstood his comments was unfair: Browne v Dunn (1893) 6 R. 67. In Marelic v Comcare (1993) 47 FCR 437, Beazley J at 442 said:

"The rule in Browne v Dunn is a procedural rule grounded in fairness, and its application must depend upon the circumstances of each case. In Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; Toohey J held at 181 that in circumstances where the respondent's legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence upon which the Commission relied, it was unnecessary to consider the operation of the rule in Browne v Dunn. A similar approach was adopted by Spender J in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 where his Honour held (at 209-210) that in the circumstances of that case, the failure to put the contents of a video to the medical witnesses produced no unfairness to the applicant."

In the recent decision of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169, those principles are discussed at some length in his Honour's reasons at 216-221, and I agree with and adopt his Honour's analysis of the relevant principle. The course of the hearing which is set out above, in my judgment, means that the process by which the Commission reached its conclusion was not unfair. From the time of Mr J's cross-examination, it was apparent that Mr D would dispute that he had asked Mrs J to remove AJ from the school. Mrs J may have denied, if it were specifically put to her, that Mr D had used the precise words he deposed to, but Mrs J did provide her version of the conversation. There is no suggestion of her not having the opportunity to do so. A denial of his precise words really would do little more than restate her own version. If some significant additional evidence could have been adduced, once Mr D's evidence were given, as distinct from a denial, an application to adduce that evidence could have been made. For those reasons also, I do not accept that submission.

The complaint about the finding as to the content of this conversation in May 1994 was said to be important because it had the potential to feed into other findings of fact, as it was a critical matter. I do not see why that is so on the particular topic. It was a discrete part of a conversation of which at least one other part, the offer of a transfer to a downstairs home group, was not contentious. I do not think that the finding of the Commission on this aspect of the conversation was one which directly related to, or flowed into, the findings otherwise made on the issues raised. In fact, the Commission introduces its comments on this conversation with the words:

"Although it is not strictly necessary to decide the point, I digress to clarify what I believe is a misunderstanding which has distressed Mrs J greatly."

On that ground alone, I would refuse to make any orders under s 16 of the ADJR Act: cp Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162.

There is a general agreement that neither party asked, or expected, the Commission to decide the percentage responsibility of the School towards AJ's damages. As I propose to set aside the finding of direct discrimination against the School, and to remit the matter to the Commission for reconsideration, it is unnecessary to address this ground of complaint except briefly.

The School accepts that, in the course of submissions before the Commission, the issue of attribution of a percentage "quantum of responsibility" was not expressly canvassed, and that it was not contemplated by any party that the Commission would assess liability in terms of a percentage apportionment. As the transcript before the Commission reveals, the initial decision was sought on the liability of the School under the DD Act in the express sense of whether a finding of unlawful discrimination should be made against it, as "distinct from the consequences of such a finding". AJ and Mrs J agree that the issue of apportionment was not addressed, although one issue before the Commission was whether AJ's problems were related or unrelated to the events at the school and her treatment there.

The Commission at one point in its reasons expressed its finding that the School "was only responsible for 25% of any damages" suffered by Mrs J and by AJ, and later that the conduct in breach of s 22 contributed to AJ's "subsequent distress and damage only in the proportion of 25%". It is evident that the Commission sought to determine whether the School's conduct in breach of s 22 had caused loss or damage, so as to set the scene for the next stage of its proposed consideration. That would be the hearing leading to its decision whether to make determinations under s 103(1)(b), including a declaration as to damages under s 103(1)(b)(iv). It is, in my view, appropriate for the Commission to have observed at that point that only a small proportion of AJ's damage was caused by the infringement found. Counsel for Mrs J and AJ during argument accepted that it could have done so. It would then have been for the Commission to determine what loss and damage the infringing conduct had caused, and to declare an amount payable for damages as a result. It was not fully argued as to how that process should be undertaken when there are concurrent contributing causes to the loss and damage. As the decision that the School infringed s 22 is to be set aside, the Commission will not now proceed with that contemplated determination, at least not on the basis of the present reasons for its decision. In those circumstances, I do not consider that I should further address this matter.

Finally, there is the question of whether the Commission failed to address one complaint of harassment.

The initial complaint was lodged on 12 August 1996. It was referred to the Commission with a report under s 76(1)(a) of the DD Act on 31 July 1997 by the Disability Discrimination Commissioner. That report did not refer expressly to complaints of harassment at all, but identified the complaint as discrimination by not providing classes in accessible premises and by refusing to make adequate alternative arrangements for AJ's education. The complaint itself was laconic on this particular topic. It contained the following relevant to this aspect of her complaint:

"Teacher of mid level would ask questions that he knew she could not answer."

By the hearing, however, there was some focus on the occasion in issue as constituting harassment. The matter was addressed in evidence and briefly in final submissions. The submission of Mrs J and AJ is headed 'Allegations of Harassment in Education'. It refers to the evidence, and asks for AJ's evidence to be accepted in preference to that of the teacher, and later makes it clear that it is alleged that his conduct infringed s 37 of the DD Act. The School contended that AJ's feeling of inadequacy in the subject may have led to her misinterpreting the teacher's attitude towards her.

In term one in 1995, the incident of alleged harassment, contrary to s 37 of the DD Act occurred. AJ was transferred from one class group to another, so that she could be taught a particular subject downstairs. She complained in evidence that the teacher

"... didn't treat me well at all. He was quite rude. He asked me things he knew I didn't know in front of the class. He always seemed kind of amused if he knew I didn't know the answer, and I said that I didn't know it, or I got it wrong. Yes, he just looked sort of a bit - yes, just amused.
...
At the start I didn't really understand what was going on. I didn't really understand that I'd been bullied, but then I started to get really disappointed."

The teacher concerned denied rudeness, and denied consciously asking AJ questions knowing she would be unable to answer, and that he showed any amusement at her inability to answer questions. He pointed out that it is routine to ask questions to determine whether a student knows a particular topic, and to ascertain the foundation from which to build further learning.

The Commission did advert to this evidence briefly in the following passage recording findings on facts:

"Unfortunately, AJ felt that it was all beyond her and it embarrassed and upset her because she felt Mr S exposed her difficulty with the subject to the rest of the class."

This complaint of harassment was not otherwise dealt with in its reasons. The School submits that that is simply because it was unnecessary to do so, as AJ's uncorroborated understanding of the teacher's motives and attitude could not provide a basis for a finding of a contravention of s 37 of the DD Act, and in addition the conduct complained of could not constitute a contravention of s 37. Mrs J and AJ submit that the conduct is capable of constituting harassment and that, therefore, the matter should be remitted to the Commission to make findings of fact, and to reach conclusions, on the topic.

In my view, the Commission has failed to make a decision on this aspect of the complaint. It is a discrete matter, not properly seen as encapsulated within the other findings, and I do not regard the brief passage referred to above as reflecting the Commission's decision or the reasons for its decision on the topic. That passage is, in my view, simply an observation in the course of the general chronological description of AJ's experiences at the school.

Accordingly, on this aspect also, I consider that the matter should be remitted to the Commission to make a decision in relation to it.

The result is that I propose to remit to the Commission for rehearing in accordance with these reasons only the decision that the School directly infringed s 22(2) of the DD Act, and associated with that the decision that the School was responsible for a certain percentage of any damages suffered by AJ. I also consider that the Commission has failed to make findings as to the complaint of harassment contrary to s 37 of the DD Act in respect of the incident in term one in 1995, and it should do so. In other respects I have upheld the Commission's decision.

I am mindful that that process will involve further distress to all concerned, as well as further delay and expense. The issues required to be reheard are more confined than those which the Commission was first required to address so some of the evidence before the Commission may no longer be relevant. In addition, it may be that the parties will be able to agree that parts of the evidence already given may be tendered on the rehearing or the Commission may receive some of that evidence under ss 94 or 98 of the DD Act. Such matters are, of course, entirely for the Commission upon the rehearing.

I order that:

the decision of the Commission that the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the DD Act, and that the School was responsible for a specified percentage of any damages suffered by AJ, be set aside
2. the question of whether the School directly discriminated against AJ, contrary to ss 5 and 22(2) of the DD Act, and the determinations which might then be made if such discrimination is made out, be referred back to the Commission for rehearing in accordance with these reasons
3. the Commission hear and determine the complaint of harassment in breach of s 37 of the DD Act in respect of the incident alleged at the start of term one in 1995.

Although par 3 of the above orders might readily be effected by the Commission as presently constituted, as I am of the view that the rehearing referred to in par 2 of my orders should take place before the Commission differently constituted, I think it appropriate that the issue referred to in par 3 also be the subject of rehearing before the Commission differently constituted unless each of the parties and the Commission as then constituted otherwise agrees.

[1998] FCA 1437

12 NOVEMBER 1998