BB v State of Queensland - [2020] QCAT 496

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

BB v State of Queensland & Ors [2020] QCAT 496

PARTIES: BB ON BEHALF OF RB

(applicant)

v

STATE OF QUEENSLAND

GD

MD

(respondents)

APPLICATION NO/S:

ADL017-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

17 December 2020

HEARING DATE:

26, 27, 28, 29 & 30 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:
1.   The application is dismissed.

2.   BB is to file with the Tribunal and give the Respondents any submissions on costs by 4.00pm on 15 February 2021.

3.   The Respondents are to file with the Tribunal and give BB any submissions on costs by 4.00pm on 1 March 2021.

4.   BB is to file with the Tribunal and give the Respondents any submissions in reply by 4.00pm on 8 March 2021.

5.   The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 8 March 2021.

CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION –– GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – EDUCATIONAL INSTITUTIONS – where student exhibited behavioural issues - where protected attribute – where comparator was student without impairment but with behavioural issues – where relevant circumstances – whether school treated student less favourably on basis of impairment – where school was attempting to integrate student’s interests within greater student body – where school was managing behaviour and providing special services and facilities to support student’s needs – where treatment was not less favourable than misbehaving student without impairment would have been treated – where intervention was directed to and elevated to behaviour rather than impairment – where treatment made appropriate allowances for impairment within context of needs and interests of other students, wider school community and student – where treatment of student was commensurate with proper management, order and safety of student, classmates and school community as a whole – where no evidence of bad faith – where Respondents treated student no less favourably than they would have for any student with behavioural issues but without attribute

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 37, s 39,
s 40, s 44, s 103, s 108, s 114, s 191, s 210, Schedule 1
Disability Discrimination Act 1992 (Cth), s 31
Education (General Provisions) Act 2006 (Qld), s 11,
s 12, s 176, s 177, s 182, s 183
Human Rights Act 2019 (Qld), s 15, s 19
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Ball v SilverTop Taxi Service Ltd [2004] FMCA 967

Connor v State of Queensland [2020] FCA 455

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

Kiefel v State of Victoria [2013] FCA 1398

Patel v University of Queensland & Anor [2019] QCAT 108

Petrak v Griffith University & Ors [2020] QCAT 351

Purvis v State of NSW (2003) 217 CLR 92

Tafao v State of Queensland & Ors [2018] QCAT 409

Walker v State of Victoria [2012] FCAFC 38

Woodforth v State of Queensland [2017] QCA 100

APPEARANCES…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 496
Decision Date: 17 December 2020

CaseChat Overview and Summary

In the matter of BB v State of Queensland, the Federal Circuit and Family Court of Australia was tasked with determining whether the respondents, who were educational institutions, had discriminated against the applicant on the basis of disability. The applicant, BB, alleged that the schools had treated them less favourably because of their disability, which affected their behaviour. The court was required to examine the specific circumstances surrounding the treatment BB received and compare it to the treatment of a comparator student who also exhibited behavioural issues but did not have a disability.

The central issue before the court was whether BB's disability was the basis for the treatment they received, and if this treatment was less favourable compared to how a student without a disability but with similar behavioural issues would have been treated. The court had to consider the schools' attempts to integrate BB's interests with those of the wider student body and their efforts to manage behaviour while providing special services and facilities. The court also needed to determine if the intervention directed at BB's behaviour was appropriate within the context of the needs and interests of the student body and the wider school community.

The court found that the respondents did not treat BB less favourably on the basis of their disability. Instead, the treatment BB received was commensurate with how any student with behavioural issues would have been treated, regardless of disability. The schools were managing behaviour and providing appropriate support, and BB's treatment was consistent with maintaining proper management, order, and safety within the school. The court was satisfied that there was no evidence of bad faith and that the respondents treated BB no less favourably than they would have treated any student with behavioural issues. Consequently, the application was dismissed, and the court set out specific timelines for submissions on costs.

The court ordered that BB file submissions on costs by 4.00pm on 15 February 2021, while the respondents were required to file their submissions by 4.00pm on 1 March 2021. BB was then to file any reply submissions by 4.00pm on 8 March 2021, with the costs of the proceedings to be determined on the papers and without an oral hearing by 4.00pm on 8 March 2021.

Orders

Orders of the court

1. The application is dismissed.

2. BB is to file with the Tribunal and give the Respondents any submissions on costs by 4.00pm on 15 February 2021.

3. The Respondents are to file with the Tribunal and give BB any submissions on costs by 4.00pm on 1 March 2021.

4. BB is to file with the Tribunal and give the Respondents any submissions in reply by 4.00pm on 8 March 2021.

5. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4.00pm on 8 March 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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