Chi v Technical Further Education Commission - [2013] HCATrans 146

[2013] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S11 of 2013

B e t w e e n -
JOHNY CHI
Applicant
and
TECHNICAL FURTHER EDUCATION COMMISSION
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 2.47 PM

MS R.S. FRANCOIS: If the Court pleases, I appear for the applicant. (instructed by Gilbert + Tobin Lawyers)

MR P. GINTERS: May it please the Court, I appear on behalf of the respondent. (instructed by Crown Solicitor’s Office (NSW))

FRENCH CJ: Thank you, Mr Ginters. Yes, Ms Francois.

MS FRANCOIS: Your Honours, this application raises two important questions which, in our submission, merit the grant of special leave concerning the construction and operation of the Anti‑Discrimination Act (NSW). The Act is an important part of the legislative framework in New South Wales governing the way in which organisations and individuals interact and ensure an inclusive and merits based society. Both questions of construction concern the extent to which the actual circumstances and events can be taken into account when determining whether the operation of the Act has been invoked.

The first question goes to the operation and construction of section 7(1)(a) of the Act. It is whether the actual circumstances of an aggrieved person are irrelevant to determining the appropriate hypothetical person for the purpose of the comparison required by that section. The second question goes to the operation and construction of section 50(1)(c) of the Act. It is whether satisfaction of the criterion in paragraph (c) is to be ascertained by reference not only to the language used to make the relevant allegation, but also the context in which the allegation is made.

FRENCH CJ: Now, the two questions ‑ I am looking at page 85 and the definition of the special leave questions 1 and 2 ‑ they really link into each other, do they not, because the question which must be answered before a complaint of victimisation can be entertained is whether or not there has been a complaint of discrimination?

MS FRANCOIS: The language of section 50(1)(c) is whether or not an allegation of a contravention of the Act, whether or not ‑ ‑ ‑

FRENCH CJ: That is right. So the question is whether what is alleged that constituted the contravention in this case was section 7.

MS FRANCOIS: Yes. Well, section 7 as applied in section 17, which is the provision of education services.

FRENCH CJ: Yes. So one feeds into the other?

MS FRANCOIS: Ultimately, yes.

FRENCH CJ: Yes, okay.

MS FRANCOIS: Your Honours, we say the issues are important because discrimination cases under the Act are not determined by a judge in court, but by an administrative tribunal. The Court of Appeal decision, in our respectful submission, is wrong, and if left uncorrected will distort the administration of the Act by the Tribunal. As the…

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: [2013] HCATrans 146
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a dispute between Mr Chi and the Technical Further Education Commission. Mr Chi sought to challenge the Commission's decision to refuse his application for registration as a teacher.

The central legal issue before the High Court was whether the Commission had acted unlawfully in refusing Mr Chi's registration. Specifically, the Court was required to determine if the Commission had failed to provide Mr Chi with adequate reasons for its decision, thereby breaching the principles of procedural fairness.

The Court held that the Commission's reasons for refusal were insufficient. Applying the principles of procedural fairness, the Court found that a decision-maker must provide reasons that are sufficiently detailed to allow the affected party to understand the basis of the decision and to enable them to consider whether to seek review. The Commission's reasons, which merely stated that Mr Chi did not meet the required standards, were found to be inadequate as they did not explain *why* he did not meet those standards or what specific deficiencies led to the refusal.

The High Court allowed the appeal, quashed the Commission's decision, and remitted the matter to the Commission for reconsideration according to law.

Orders