Chi v Technical and Further Education Commission (EOD)

[2010] NSWADTAP 67

Appeal Panel - Internal

CITATION:	Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67
PARTIES:	APPELLANT Johny Chi RESPONDENT Technical and Further Education Commission
FILE NUMBER:	099073
HEARING DATES:	31 May 2010
SUBMISSIONS CLOSED:	31 May 2010
DATE OF DECISION:	11 October 2010
BEFORE:	Patten D - Deputy President; Huntsman C - Judicial Member; Hiffernan N - Non-Judicial Member
CATCHWORDS:	Alleged Victimisation – not established – whether detriment proved
DECISION UNDER APPEAL:	Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
FILE NUMBER UNDER APPEAL:	061089
LEGISLATION CITED:	Anti Discrimination Act 1997 Technical and Further Education Commission Act 1990
CASES CITED:	Nicholls and anor v Director-General Department of Education and Training (No 2) (2009) NSW ADTAP 20 Shaikh v Commissioner of NSW Fire Brigades (1996) EOC 92-808 Purvis v NSW (2003) 217 CLR 92 Ewsdale v the Queen [2000] 202 CLR 321 Sivananthan v Commissioner of Police [2001] NSWADT 44 Building Professionals Board v Harm (GD) [2008] NSW ADTAP13 K v K [2002] NSWSC 1052
REPRESENTATION:	APPELLANT J Darams - Counsel RESPONDENT P Ginters – Counsel
ORDERS:	1. Appeal dismissed 2. Orders made by the Tribunal confirmed 3. Leave to extend appeal to hearing on merits refused 4. No order as to costs.

REASONS FOR DECISION

1 This is an appeal from an original decision of the Tribunal in the Equal Opportunity Division given on 22 October 2009. The Tribunal dismissed the applicant's complaints of victimisation and discrimination contrary to the Anti Discrimination Act (the Act). At the hearing of the appeal Mr J Darams appeared for the appellant (the applicant at first instance) and Mr P Ginters for the respondent (the respondent at first instance).

2 The Tribunal identified two issues before it as:

(a) whether on 2 February 2005, Ms Siljanovic - who was at the time Head Teacher, Information Technology, Web Development at Ultimo College – engaged in impermissible victimisation of Mr Chi when she allegedly refused to allow him to enrol in certain course modules because of a prior complaint made by him (the victimisation incident); and

(b) whether on 3 February 2005, Ms Bennett – who was at the time Assistant Director, Educational Programs at Ultimo College – discriminated against Mr Chi on the ground of disability when, during a meeting with Mr Chi, she summoned TAFE security staff and allegedly instructed them to prevent Mr Chi from leaving her office and thereafter allegedly directed them to follow him off the campus.

3 The Notice of Appeal prepared by the appellant himself listed some 20 grounds of appeal which for the most part were in very general terms and failed to identify the point sought to be argued. Some 15 grounds were asserted to involve questions of law, the remaining five relating to the merits of the application upon which leave was sought.

4 In his written submissions to us Mr Darams reduced the grounds of appeal to 3 namely:

a) the Tribunal acted upon wrong principles of law

b) the Tribunal made a mistake of fact

c) the Tribunal came to an incorrect finding based on the evidence that was presented to the tribunal.

5 Those three grounds are just as unhelpful in their terms as those propounded by the appellant himself. However Mr Darams’s submissions clarified the issues raised in the appeal.

6 The relevant facts giving rise to the matter are set forth in the Tribunal's decision as follows:

4 Mr Chi was born in Taiwan on 11 April 1957. He arrived in Australia in 1985. He was diagnosed with a number of psychiatric illnesses in 2000. Since 24 October 2005, Dr John Roberts has been his treating psychiatrist. In a report prepared in connection with these proceedings, Dr Roberts confirmed that Mr Chi’s “symptomatology is consistent with an adjustment disorder with anxiety and depression arising as a result of circumstances”.

5 Although not originally admitted by the respondent, for the purpose of the proceedings it was not in dispute that Mr Chi has a disability within the meaning of s 4(1) of the Anti-Discrimination Act 1977 (NSW) (AD Act), namely a depression and anxiety disorder for which he continues to receive psychiatric treatment.

6 At all material times, the respondent was constituted as a body corporate under the Technical and Further Education Commission Act 1990 (NSW) (TAFE Act), and an “ educational authority ” within the meaning of s 4(1) of the AD Act. At all relevant times, Ms Siljanovic and Ms Bennett were employed by the respondent under the TAFE Act.

7 In 2002 and 2003, Mr Chi enrolled in and completed a Certificate IV in Website Design at TAFE, North Sydney Institute, Crows Nest College (course number 3756), and a Diploma in Network Engineering at TAFE, Northern Sydney Institute, North Sydney College (course number 3664).

8 In February 2004, Mr Chi enrolled in a Diploma in Information Technology (Website Development) offered by the respondent at its Sydney Institute, Ultimo College (course number 3757).

9 From about March 2004, Mr Chi received counselling assistance at Ultimo College. In June 2004, he was referred to the Disabilities Unit for additional tutorial and other assistance. Thereafter, additional tutorial and other assistance was funded by the Disabilities Unit after confirmation by the Head Teacher Consultant, Ms Peta Smith, that Mr Chi had a disability.

10 During Semester 1 of 2004, Mr Chi studied three modules that made up the subject Web eCommerce Development A at Ultimo College, but failed.

11 On 19 July 2004, Ms Siljanovic provided Mr Chi with a proposed timetable for Semester 2 of 2004, and for Semester 1 of 2005. The modules for Semester 2 of 2004 included those for Web eCommerce Development A taught by Mr Dean Nguyen, a different teacher to the one who had failed him in Semester 1. The modules for Semester 1 of 2005 included those subjects called Web eCommerce Development B and Web Services.

12 According to an email from Ms Siljanovic to Ms Bennett dated 19 July 2004, Mr Chi had informed her that morning in the presence of his then counsellor Mr Lamas that “ he was not ever coming back to Ultimo ” and that he did not want to be taught again by the teacher whose modules he had failed in Semester 1. According to Ms Siljanovic’s email, she had, at Ms Bennett’s suggestion, sat with Mr Chi and worked out a timetable based on the repeat modules he needed to complete from Part A of the course, plus modules that he could commence in Part B.

13 Ms Siljanovic also advised Ms Bennett that Mr Chi had opted to attend the Saturday course in Web eCommerce Development A taught by Mr Nguyen (rather than the course taught by the teacher who had failed him in Semester 1 of 2004). Further, she had advised Mr Chi that one of the modules to be completed in Semester 1 of 2005 would be taught by the teacher whose modules he had failed. According to Ms Siljanovic’s email, Mr Chi said he would not listen to her “ but would proceed with his complaints ”.

14 Mr Chi’s evidence was that as this time he already had “some psychological injury from the time of [his] employment with Coles Supermarket and these further incidents upset [him] very greatly”.

15 On 28 July 2004, Ms Siljanovic sent an email to a senior counsellor, Ms Gray, copied to Ms Bennett and Mr Lamas, advising inter alia that Mr Chi was not currently enrolled in Web eCommerce Development B and Web Services “because both these areas focus on a higher level of programming knowledge, the foundation of which is eCommerce Development A”. Ms Siljanovic further advised that if Mr Chi were to enter the Web eCommerce Development B and Web Services classes, one of his teachers “would have to be” the teacher who had failed him in Web eCommerce Development A. Ms Siljanovic’s understanding was that Mr Chi did not want that teacher to teach him again. Also, as the teacher’s head teacher, Ms Siljanovic believed that it would be very stressful for the teacher to have to teach Mr Chi again since he had accused the teacher of “racism and of being a bad teacher”.

16 In the meantime, Mr Chi’s counsellor Mr Lamas was endeavouring to contact a person at the Randwick College of the TAFE Sydney Institute (Randwick College) to ascertain whether Mr Chi could be transferred there. Ms Siljanovic advised that “Randwick offers the course over one semester only”. In other words, if Mr Chi successfully completed his studies at Randwick College, he would have completed all the requirements for the Diploma in Information Technology (Website Development) (course number 3757) in Semester 2 of 2004.

17 On or about 2 August 2004, Mr Chi lodged with the Department of Education and Training (DET) a form entitled “Suggestion or complaint form” dated 20 July 2004 and headed “SUBJECT: Complaint of unfair mark of my Ecommerce subject” (the August 2004 complaint). In the August 2004 complaint, Mr Chi alleged that he had “suffered a long period of discrimination and harassment” from his eCommerce teacher and “there was no solution” which he could get from his head teacher, Ms Siljanovic. The complaint referred inter alia to his “depression and anxiety” and to his “psychiatry treatment”, as well as to his meeting with Ms Siljanovic and Mr Lamas on 19 July 2004 to discuss his results in eCommerce. It is of significance, in our view, that whilst the complaint contained numerous allegations about “the lack of teaching and extraordinary teaching style”, it focussed on the issue of the unfairness of the mark of 42% awarded to Mr Chi in the eCommerce subject. Other than the reference to “a long period of discrimination and harassment”, it made no allegation of discrimination on any particular ground such as race or disability.

18 On 10 August 2004, Mr Peddle, the director of the Sydney Institute responded to Mr Chi in relation to his complaint concerning the marking of his eCommerce subject, noting inter alia:
a) his examination in Web eCommerce Development A had been remarked twice, once by his class teacher and once by Mr Nguyen, another teacher in the section;
(b) in response to Mr Chi’s request for a third remark by an “independent assessor”, his test had been forwarded to an another Institute to be remarked;
(c) he had been advised that on 19 July 2004, the head teacher had formulated a special timetable of him based on the repeat modules needed to complete Part A of his course, plus the modules to commence Part B of the course;
(d) arrangements had been made effective 11 August 2004 to provide Mr Chi with two hours per week tutorial support for Web eCommerce Development A and Advanced Networking;
(e) in the interim, Mr Chi had transferred his enrolment to Randwick College.

19 On 18 October 2004, Ms Bennett wrote to Mr Chi referring to a meeting held on 22 September concerning his completion of the Diploma in Information Technology (Website Development), and confirming the agreement that to facilitate Mr Chi’s course completion in Semester 2 of 2004:
(a) his course enrolment would remain at Randwick College;
(b) he would attend classes for all modules at Randwick College, with the exception of modules 3757A, 3757J and 3757P (the modules for Web eCommerce Development A);
(c) he would attend at Ultimo College on alternate Saturdays for modules 3757A, 3757J and 3757P only (for which modules tutorial support would be funded by the Disabilities Unit); and
(d) he might “elect to study the advanced eCommerce modules in semester 1 of 2005”, but that these were not necessary for him to be course complete.
20 During Semester 2 of 2004, Mr Chi repeated the subject Web eCommerce Development A at Ultimo College, and passed. During that semester, Mr Chi also studied full-time at Randwick College. As at the beginning of 2005, four of his results from Randwick College were deferred, due to the late submission by Mr Chi of work.

21 On 31 January 2005, Mr Chi attended Ultimo College on enrolment day. Precisely what was said by whom is in dispute. However, it is tolerably clear that Mr Chi made clear to Ms Siljanovic at the very minimum that he wished to enrol in the subject eCommerce Development B taught by Mr Nguyen (modules 3757B, 3757H and 3757F). Whether he also expressed the desire to enrol in the subject known as Web Services at this meeting on 31 January 2005, or first at a subsequent meeting on 3 February 2005 is unclear. Having regard to the documentary record, we think it more probable that the question of enrolment in Web Services was first raised by Mr Chi on 3 February 2005. In any event, the meeting between Ms Siljanovic and Mr Chi on 31 January 2005 concluded with Ms Siljanovic indicating that Mr Chi should wait for an email from her before coming in again to enrol.

22 On 31 January 2005, Ms Siljanovic sent an email to Ms Peta Smith of the Disabilities Unit, copied to amongst others Ms Bennett, confirming that she had met that day with Mr Chi with Mr Terry Turner in attendance, and that Mr Chi had four deferred results listed on his record from Randwick College. If Mr Chi passed all those subjects, he would be course complete. Ms Siljanovic continued:
“Naturally this does not suit Johny as he still wishes to study with Dean Nguyen this semester.
I believe TAFE policy now is that a student may attend to complete modules more than once – but that two unsuccessful attempts are the limit.
Basically I would allow Johny to attend with us to do 3757B, 3757H and 3757F again – BUT only if you have the funds to be able to support him during the semester” ….
23 In an email sent later on 31 January 2005 to, inter alia, Ms Smith and Ms Bennett, Ms Siljanovic noted that she was proposing to offer Mr Chi “to do 3757B, H and F again to keep the peace – however he will be offered group tutorial support only by the Disabilities section”.

24 On 1 February 2005, Ms Siljanovic sent an email to Mr Chi, thanking him for coming in the previous day, and confirming that she had since ascertained that students “may satisfactorily complete modules up to a maximum of two times”, and that she was happy to provide a place for him to study the following eCommerce modules with Mr Nguyen:
a) 3757B Ensure Dynamic Website Security (for which his result was then currently deferred from Randwick College);
b) 3757H Configure Payment Gateway (for which his result was then currently deferred from Randwick College);
c) 3757F Translate Business Need into Technical Requirements (for which his result from Randwick College was pass status).
25 Collectively, these subjects comprised the subject known as ecommerce Development B.

26 On 1 February 2005, Ms Smith sent an email to inter alia Ms Siljanovic advising as follows:
“Well done to all if he is successfully completed his course in 2004 (with late marking in 2005) While I commend Johny for his interest in successfully reviewing his successful modules I can not justify individual tutorial support from the disability budget supporting students who are course complete.
…
He is welcome to attend group tutorials … That is the best I can offer in the circumstances …”

27 On the afternoon of 2 February 2005, Mr Chi again attended at Ultimo College to meet with Ms Siljanovic to discuss his enrolment. The meeting was also attended by a TAFE counsellor, Mr Gollan. What occurred at this meeting is disputed, and is the subject of the victimisation complaint. The differing accounts of what occurred are considered further below. In essence, it is not disputed that Mr Chi expressed the desire to enrol in the subject known as Web Services. Nor is it disputed that Ms Siljanovic told Mr Chi several times during the meeting that he did not need the three modules in that subject in order to be course complete. Nor is it disputed that the meeting was concluded by Ms Siljanovic confirming that she would organise a meeting the following day with Ms Bennett to discus Mr Chi’s desire to study Web Services.

28 As at Semester 1 2005, the only teacher allocated to teach Web Services was the teacher who had failed Mr Chi in eCommerce Development A in Semester 1 of 2004. Mr Chi’s evidence was that at the meeting Ms Siljanovic said to him words to the effect:
Johny you know the reason why we would not allow you to enrol in “Web Service” is because you complained about your teacher …Do you remember that … [She] will be your teacher.”


29 Both Ms Siljanovic and Mr Gollan gave evidence that Ms Siljanovic said no such thing at the meeting on 2 February 2005. Mr Chi’s evidence was to the effect that notwithstanding the identity of the teacher who would be teaching the modules, Mr Chi made it known to Ms Siljanovic that he wished to enrol in the subject.

30 The three modules collectively known as Web Services were:
(a) one core module (3756B): Develop website information architecture;
(b) one elective module (3765A): Build a Doc using Extensible Mark-Up Lang (XML); and
(c) one enrichment module (3757AB): Enterprise Web Systems Architecture.


31 The course outline document for the Diploma in Information Technology (Website Development) taught at Ultimo College indicated that the course consisted of 20 core modules and two elective modules. Group 1 - the core modules – was described as providing “a robust base of knowledge and skills for this qualification”. Group 2 consisted of 22 elective modules, two of which were required to be completed. Group 3 consisted of some four enrichment modules which were not necessary in order to be course complete.

32 Mr Chi had been given an exemption from the core module 3756B - Develop website information architecture. The evidence of Ms Siljanovic and Mr Gollan – accepted by Mr Chi’s counsel – was that students who had completed a Certificate IV in Information Technology (Website Design) were exempt from studying this core module as they had already attained the necessary competency. Mr Chi had completed his Certificate IV at TAFE – North Sydney Institute.

33 Later on 2 February 2005, Ms Siljanovic sent an email to amongst others Ms Bennett in relation to the meeting that afternoon with Mr Chi which had also been attended by Mr Gollan. The email provided, inter alia:
"… Should Johny pass his four DRs from Randwick he will be course complete now. …
Johny is now no longer satisfied with only repeating the three modules on Friday evening with Dean.
He demands also to attend Web Services classes where the modules are electives only.
There are two web Services classes. Both are taught by Deb McHugh. Johny stated very strongly to a counsellor and to Bronwyn in my presence that he never wanted to see this teacher again. He also accuses her of racial discrimination.
I informed Johny that it would not be a good experience for him to attend the Web Services class with a teacher he does not like and has accused to (sic) racial intolerance Deb McHugh is an excellent, new fulltime teacher ... I can guarantee that she would be extremely agitated and stressed if she had to teach Johny again ....
I abandoned the enrolment process and asked him to see you again tomorrow."

34 On 3 February 2005, Mr Chi met with Ms Siljanovic and Ms Bennett in Ms Bennett’s office at the Ultimo College. Again, what transpired at this meeting is disputed, and the events are the subject of the disability discrimination complaint. The differing accounts of what occurred at the meeting are considered further below.

35 In essence, however, it is not disputed that Mr Chi again expressed the desire to enrol in the subject known as Web Services. Ms Siljanovic and Ms Bennett confirmed to him that the subject was an elective, and he did not need it in order to be course complete. However, they advised him that if he wished, he might again enrol in a subject he had completed at Crows Nest College in Semester 2 of 2003, an introductory course in the subject known as XML. The elective module in Web Services 3765A - Build a Doc using Extensible Mark-Up Lang (XML) – was predicated on an existing knowledge of XML.

36 What occurred thereafter is unclear. In any event, Ms Bennett pressed the duress alarm, and the College’s security guards attended at her office. The security guards waited outside Ms Bennett’s room for a short time. When Mr Chi left Ms Bennett’s room, they followed him from the campus. Mr Chi ran to Surry Hills police station and reported the incident.
37 On 7 February 2005, Mr Chi met with Ms Bennett, Ms Siljanovic and Mr Paul Colwell from the Counselling and Careers Unit. Ms Bennett and Ms Siljanovic again declined to accede to Mr Chi’s request to enrol in the Web Services subject, (3756B, 3765A and 3757AB), and repeated the offer to him to enrol in the subject XML.

38 On 7 February 2005, Ms Bennett wrote to Mr Chi referring to his “ demand ” to enrol in an additional three elective modules (3756B, 3765A, 3757AB), confirming that he had already passed more than the required number of elective modules to be course complete. Despite the TAFE NSW Revision of Student Selection Policy (ES1/00022) that in general students should not be re-enrolled in a course or module which they had already completed, Mr Chi would be permitted to enrol in modules for which he had results pending from Randwick College (3757B and 3757H), and also in the module 3756Y (Complex Mark-up Language Documents) which he had passed at Crows Nest in Semester 2 2003 (that is, the introductory XML course).

39 The evidence of Mr Colwell was that he took the opportunity to discuss the contents of Ms Bennett’s letter of 7 February 205 with Mr Chi, and following that discussion Mr Chi agreed to accept enrolment in the subjects set out in that letter.

40 In 2005, having completed the core modules and a sufficient number of elective modules, Mr Chi was awarded a Diploma in Website Development.

41 On 4 October 2005, Mr Chi lodged a complaint with the Anti-Discrimination Board (ADB). The gravamen of Mr Chi’s complaint was that he was the only student singled out for the subject Web Services to be elective and not compulsory.

7 In its review of the evidence the Tribunal made what we regard as important findings of fact:

82 In cross-examination, Ms Siljanovic did not accept that she offered Mr Chi subjects that he had already done in order to "keep the peace". However, her e-mail of 31 January 2005 to Ms Bennett confirmed that that was at least part of her reason. However, in our view, this does not reflect adversely on her credit. Nor does it follow that the offer was “a way of fobbing Mr Chi off and discouraging him from enrolling at all.” To the contrary, despite the fact that if he had successfully completed the courses he had enrolled in at Randwick College, Mr Chi would have been course complete, Ms Siljanovic was prepared to allow him to enrol again in the subject eCommerce Development B with Mr Nguyen, a teacher with whom he wished to study further, as well as in the subject XML.
83 Further, Ms Siljanovic’s evidence in cross-examination, which we accept, is that Mr Chi had "struggled throughout his studies", and for him to assume the burden of the additional (unnecessary) modules in Web Services "would prove very taxing for him" and "would delay his goal of becoming course complete in the shortest amount of time available". This was because he would be assuming an additional burden of extra modules, which were modules that he did not need to complete to be course complete.
84 We also accept the evidence of Ms Siljanovic in relation to budgetary constraints impeding the capacity of students to do more than the required minimum number of modules. In cross-examination, her evidence was as follows:
“Q. Although there was a minimum number of subjects to complete, students could do more than the required minimum, couldn't they?
A. No, we have budget, very severe budget restrictions and we are audited on completions. We get severe reprimands from VTAB (?) if we are shown to be over completing.
Q. But if students want to do more modules and they need to be course complete, TAFE allows them to do that doesn't it?
A. No.
A. I don't think so, no. We allow people to repeat their training if they had failed.”

8 The Tribunal after setting out in unexceptionable terms the principles upon which inferences may properly be drawn from established facts proceeded to make these further factual findings:

87 On the evidence before us, we are not satisfied that Mr Chi’s complaint of 2 August 2004 was the “true basis” or “genuine basis” or “real reason” Mr Chi’s enrolment was placed on hold on 2 February 2005, and the matter elevated to Ms Bennett for further discussion. Whilst we do not accept that Ms Siljanovic was unaware of the August 2004 complaint, we are satisfied, on balance, that there is a more probable and innocent explanation for her acts. In our view, there was a combination of reasons for Ms Siljanovic actions. These include Mr Chi’s previous hostility towards the teacher concerned, as well as the imminence of his course completion, concern for the teacher involved, and concern for a student who had in the past received counselling, tutorial and other assistance. We are not satisfied that the fact of the 2 August 2004 complaint was a real, let alone dominant or substantial reason, reason for why Mr Chi was treated as he was on 2 February 2005.

88 Finally in relation to causation, we note the respondent’s submission that where the evidence of TAFE witnesses conflicted with that of Mr Chi, the Tribunal would prefer the evidence of TAFE witnesses. In particular, the respondent submitted that “Mr Chi's evidence was characterised by an unwillingness to answer directly the questions put to him, inaccuracies in his evidence and a preparedness to embellish matters to advance his own cause”. We do not accept such a general characterisation of Mr Chi’s evidence. It is true that on a number of occasions the Tribunal directed Mr Chi to address his mind (and answers) to the questions that were being put to him in cross-examination. However, in our view, the necessity for such directions arose from Mr Chi’s occasional state of agitation whilst giving evidence in relation to the events the subject of his complaints, and did not reflect any view taken by the Tribunal in relation to his candour or credit. It is pertinent to recall in this regard that Mr Chi suffers from an anxiety disorder for which he receives psychiatric treatment.

9 The Tribunal proceeded to find the appellant had, in relation to his victimisation complaint, failed to prove causation and went on to find that the appellant had not done any of the things within section 50 (1)(a) to (d) of the Act namely he had not alleged that the respondent or any other person had committed an act which would amount to a contravention of the Act.

10 The Tribunal pointed out that the appellant's complaint focused on “the lack of teaching and extraordinary teaching style" of the teacher complained of.

11 Finally the Tribunal in relation to the victimisation complaint found that the appellant had suffered no detriment.

12 Although for completeness we have included in these reasons material relevant to the appellant’s discrimination claim his Counsel in written submissions before the hearing of the appeal abandoned that aspect of the appeal which proceeded only in respect of the victimisation claim. Nonetheless we deem it appropriate to set out the manner by which the Tribunal dealt with the now abandoned claim. It approached the issue thus:

117 Mr Chi asks the Tribunal draw an inference that due to his psychiatric disability and presumed symptoms, he was treated less favourably than others would have been in the same circumstances or circumstances that were not materially different, in that on 3 February 2005, during the meeting with Ms Bennett and Ms Siljanovic, Ms Bennett overreacted to the situation and unnecessarily called security guards to the meeting. He submits (and it was put to Ms Bennett) that there were other techniques available to an experienced administrator in dealing with a student who did not agree with the point of view of the administration, such as taking time out from the meeting, reconvening the meeting on another occasion, and having a support person attend with the student. That she did not use such a technique, it was submitted, supports the inference that it was “due to her insecurities due to the psychiatric disability of Mr Chi”.

118 It was submitted on Mr Chi’s behalf that but for presumptions and fears arising because of his disability, namely that he posed a danger to Ms Bennett and/or Ms Siljanovic, security guards would not have been called to the meeting. He was subjected to a detriment, namely the calling of the guards. This caused him great fear and distress.

119 In relation to the element of differential treatment, the respondent submitted that the relevant comparison was with a person without Mr Chi's disability who manifested the behaviours of Mr Chi; that is, a student without Mr Chi's disability who behaved in an “aggressive, intimidating and threatening manner”. It was submitted that a student who behaved in the manner that Mr Chi did in his meeting with Ms Bennett and Ms Siljanovic, and who did not suffer from Mr Chi's disability, would have been treated in exactly the same manner as Mr Chi was. Likewise, in relation to the element of causation, the respondent submitted that the "true basis" or "real reason" for Ms Bennett's actions was the “aggressive, intimidating and threatening manner” in which Mr Chi acted, and not his disability.

13 After analysing the relevant facts in some detail the tribunal concluded:

132 In our view, in pressing the duress alarm and summoning the College’s security guards, Ms Bennett probably overreacted. However, on the material before us, we are unable to find that Mr Chi’s psychiatric disability was either the reason, or a reason, why she activated the duress alarm. Rather, we accept that the “ expressed and genuine basis ” of her actions was Mr Chi’s agitated behaviour. Accordingly, on the material before us, we cannot conclude that Ms Bennett treated Mr Chi less favourably than in the same circumstances, or in circumstances not materially different, she would have treated a student without Mr Chi’s disability.

14 In relation to the victimisation complaint it was submitted on behalf of the appellant that the Tribunal by using the definite article “the” in the second line of paragraph 87 (quoted above) fell into error in that as was common ground the test to be applied is that set out in Nicholls and anor v Director-General Department of Education and Training (no 2) (2009) NSW ADTAP 20 at para 37

“The tribunal should have asked itself whether the fact that Nicholls had done one of the things listed in s59(1)(a) to (d) was at least one of the “real”, “genuine” or “true” reasons for being subjected to a detriment”.

15 By stating that it was not satisfied that the appellant's complaint was “the” true basis etc it was submitted that the Tribunal was placing the bar to the appellant's claim at too high a level.

16 It seems to the Panel that this may have been so, at least if it were not for the last sentence of para 87 where in our respectful view the correct test was clearly reflected. Having regard to the fact that the Tribunal referred to Nicholls and to other cases to like effect such as Shaikh v Commissioner of NSW Fire Brigades (1996) EOC 92-808 and Purvis v NSW (2003) 217 CLR 92 it seems apparent that the Tribunal was fully apprised of the relevant law. Once that conclusion is reached it seems to us that more than a casual misstatement is required to indicate that the wrong test was actually applied.

17 In this case moreover the paragraph of the Tribunal's reasons under challenge does more than simply restate the legal principle in correct terms but does so by reference to the facts which it found. In our opinion Mr Ginters was correct in his submission that a fair reading of the entirety of paragraph 87 of the decision does not reveal an error of law. Any “verbal infelicities" may in this case be ignored to use the words of Kirby J in Ewsdale v the Queen [2000] 202 CLR 321 at para 65.

18 Mr Darams’s next submission was expressed as “error of law and/or on the merits: failure to draw legal conclusion that flows from finding of fact.” The argument was predicated upon the Tribunal's finding of “Mr Chi’s previous hostility towards the teacher concerned”. The teacher concerned was Ms D McHugh.

19 Mr Chi’s “hostility” towards Ms McHugh was evidenced by his complaint lodged with the Department of Education and Training on or about 2 August 2004 referred to above. As can be seen the complaint refers to “a long period of discrimination and harassment" but as the Tribunal in its reasons at paragraph 17 notes makes no allegation of discrimination on any particular ground such as race or disability. Having said that however it should be noted that Ms McHugh’s superior Ms Siljanovic as evidenced by e-mails as early as 28 July 2004 believed that the appellant claimed that Ms McHugh was guilty of racism towards him.

20 In essence however the argument concerns the question whether the appellant fell within the terms of s50(1) of the Act those terms being as follows:

“It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

21 The Tribunal’s findings on the matter are set out in paragraphs 92 to 94 of its reasons

92 In case we are wrong in relation to causation, we next consider whether Mr Chi had done one of the things listed in s 50(1)(a) to (d) of the AD Act. Mr Chi relies on sub-paragraph (c) which provides that the person victimised has “alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act …”.

93 As noted previously, the 2 August 2004 complaint focussed on the fact that Mr Chi had failed the subject eCommerce Development A in Semester 1 of 2004 and “the lack of teaching and extraordinary teaching style” of the teacher concerned. It made no reference to Mr Chi’s race, nor contained any allegation of discrimination on the ground of his disability.

94It follows that Mr Chi had failed to establish an allegation of an act that would amount to a contravention of the AD Act.

22 Mr Darams’s argument claimed that those findings “impermissibly ignore the prior context in which the complaint was made" as known to Ms Siljanovic. However in order for the appellant to succeed in his claim of victimisation he is obliged to prove that he had alleged or in effect intended to allege a breach of the Act. As Mr Ginters pointed out in his submissions that is a quite specific requirement. The making of a claim of discrimination in his formal complaint in our opinion stops well short of alleging a contravention of the Act. Nor in our opinion does the context revealed by Ms Siljanovic’s e-mails overcome the problem. In the e-mail of 28 July 2004 she simply says, referring to Ms McHugh and the appellant “she has been accused by him of racism”. On 2 February 2005 she said, “ He also accuses her of racial discrimination" and in the same e-mail “ has accused to (sic) racial intolerance". None of these references in our opinion is specific enough to constitute an allegation of breach of the Act or enable such an inference to be drawn. There is a world of difference between a person described as a racist in the sense of believing that his own race is superior to other races or is intolerant of other races and a person who actively discriminates against another person in the provision of goods or services on the grounds of that person's race contrary to the provisions of the Act.

23 In our opinion the conclusions of the Tribunal expressed in paragraphs 92 to 94 of the reasons reveal no error of law.

24 If the conduct of the appellant did not fall within s50(1) of the Act then subject to us granting leave to appeal on the merits the claim for victimisation must necessarily fail as must this appeal.

25 However it is appropriate that we deal with other asserted matters of law before returning to the question whether we should deal with the appeal on the merits.

26 On the question of causation it was submitted that the Tribunal’s reference in paragraph 87 to the appellants “hostility” towards the teacher as possibly constituting a reason for Ms Siljanovic’s decision necessarily required a finding that the complaint of 2 August 2004 also constituted such a reason.

27 It does not seem to us that this necessarily follows, certainly not as a matter of law. The appellant's hostility towards the teacher had a number of facets which included her alleged failure to award him fair marks, and her alleged poor teaching style. In our opinion it was open to the Tribunal when deciding the causation issue to divorce from his formal complaint what it may have seen as a clash of personalities between the appellant and the teacher. In our view the Tribunal's reasons exposed no error of law.

28 Likewise for similar reasons we reject the submission that the Tribunal's acceptance as a reason for Ms Siljanovic’s decision was her concern for the emotional well-being of the teacher Ms McHugh must have led it as a matter of law to conclude that the complaint was also a reason. Again it was open to the Tribunal in its fact-finding exercise to divorce the complaint from Ms Siljanovic’s concern for the teacher's welfare.

29 There was in our view more substance in the submission that the Tribunal's finding at paragraph 103 that the appellant suffered no detriment within s 50(1) of the Act was an error or law. The Tribunal said:

103 Ultimately, in our view the question is whether a reasonable person would consider an inability to enrol in modules not necessary for course completion, in circumstances where the person was otherwise course complete to be a detriment: Sivananthan v Commissioner of Police [2001] NSWADT 44 at [41]. In our view, the fact that Mr Chi was not enrolled in the Web Services modules, being modules he did not require for course completion, did not amount to a detriment in the relevant sense. As a matter of substance, he enrolled in and passed sufficient modules to enable him to obtain a Diploma in Information Technology (Website Development). As to the position of other students in his Ultimo College cohort, it is relevant that Mr Chi was the only student who split his enrolment between Ultimo College and Randwick College. Any differential between Mr Chi and the Ultimo College cohort needed to be viewed in this context.

30 In our opinion there is no reason to limit the meaning of “detriment” in s50(1). We agree with Mr Darams's submission that the exclusion of the appellant from a course that he wished to undertake, whether it led to a formal qualification or not, constituted a detriment and in this respect the Tribunal fell into error. However this error was of no significance to the outcome of the appeal having regard to our other conclusions.

31 In relation to the application for leave to extend the appeal to the merits we refer to the principles set forth in Building Professionals Board v Harm (GD) [2008] NSW ADTAP13 and the cases cited therein. It seems clear to us that in the exercise of a broad discretion relevant considerations include whether the Tribunal below has made an error of law and whether on its face the Tribunal has approached its fact finding task in an unorthodox fashion or in a way unlikely to produce a fair result (see K v K [2002] NSWSC 1052 per Young J). Those factors in our opinion are not applicable to this case. Moreover we think it is also appropriate to have regard to the nature and importance of the case. Undoubtedly any complaint of victimisation and detriment following a threat, actual or implied, of legal proceedings should be very carefully scrutinised. In this case as we have found however not only was there no evidence of victimisation but the alleged detriment was comparatively insignificant in that it did not impact upon the appellant achieving the training qualification which he sought. In our opinion leave to extend the appeal to the merits should be refused.

32 Before parting with the appeal we should make reference to a finding of fact made by the Tribunal below which the respondent submitted we should overturn. The finding at para 78 was that as at 2 February 2005 Ms Silvanovic was aware that the appellant had made a formal complaint the previous August. Although there was some force in the submission and we may not have reached a similar conclusion if trying the issue ourselves, we do not think we should overturn the finding which to some extent depended on the assessment of witnesses not seen by us. The matter is of little significance in any event having regard to our other conclusions.

33 We make these orders:

1. Appeal dismissed.

2. Orders made by the Tribunal confirmed.

3. Leave to extend appeal to hearing on merits refused.

4. No order as to costs.