ERG (on behalf of ABC) v St Catherine's School Sydney; ERG v St Catherine's School Sydney

[2021] NSWCATAD 144

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERG (on behalf of ABC) v St Catherine’s School Sydney; ERG v St Catherine’s School Sydney [2021] NSWCATAD 144

Hearing dates:

7 April 2021

Date of orders:

1 June 2021

Decision date:

01 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

1.   Leave to proceed with the complaint of race    discrimination is refused.

2.   Leave to proceed with the complaint of    victimisation is refused.

Catchwords:

HUMAN RIGHTS – discrimination – race – less favourable treatment – same or not materially different circumstances – causation

HUMAN RIGHTS – victimisation - causation

HUMAN RIGHTS – Tribunals – Civil and Administrative Tribunal -- leave to commence proceedings – principles concerning grant of leave

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Disability Discrimination Act 1992 (Cth)

Cases Cited:

Bogie v The University of Western Sydney (1990) EOC 92–313

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Masters v Reserve Hotels Pty Ltd atf the NBF Trust [2020] NSWCATAD 115

Nicholls and Nicholls v Director General Department of Education and Training (No 2) [2009] NSWADTAP 20

Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

ERG (Applicant)
St Catherine’s School (Respondent)

Representation:

Counsel:
M Seck (Respondent)

Solicitors:
Applicant (Self-Represented)
Dentons (Respondent)

File Number(s):

2021/00074562

Publication restriction:

Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of any children referred to in the evidence or at the hearing of the proceedings is prohibited.

REASONS FOR DECISION

Background

1. This is an application for leave to proceed with two complaints under the Anti-Discrimination Act 1977 (the ADA). The applicant alleges firstly that his child was subject to discrimination on the ground of her race by the respondent when she was allegedly interviewed in a bullying manner and suspended for 7 days for smoking marijuana. The applicant’s child ABC is of Australian/British background. Another student who is of Aboriginal descent was also suspended for 7 days. The applicant claims his child was treated less favourably than the other student because the other student had marijuana in her possession and had a “track record” whereas his child did not.

2. The second complaint is a complaint of victimisation which the respondent is alleged to have perpetrated against his child and himself. The applicant alleges that since he made the complaint the respondent has victimised them by:

1. Refusing to provide references to another school

2. Delaying his child’s enrolment at the other school

3. Starting legal action against him and the child’s other parent in the Local Court to recover unpaid school fees.

3. The first complaint was lodged on 21 September 2020 and the second complaint was added on 9 December 2020.

4. The complaints were declined by the President’s delegate on 1 March 2021 as lacking in substance. The applicant has now applied to the Tribunal to grant leave to proceed.

The history of the proceedings

5. The leave application was heard on 7 April 2021. The decision was reserved. On 10 April 2021 the applicant wrote to the Tribunal asking for additional material to be brought to my attention. The applicant did not provide a copy of his correspondence to the respondent. Due to an error, I was not made aware of the fact that the applicant was seeking to adduce new material until 23 April.

6. The applicant was informed if he wished the Member to consider new material at this stage he should make a written request giving reasons by 30 April 2021 and copy the respondent into his correspondence and include copies of the material. The Member would then consider the request.

7. The applicant submitted that he wished to adduce new material because:

1. the evidence was not available at the time of the leave hearing

2. the evidence has a material impact on the application for leave

3. it is fair and just to consider the material as part of the decision

4. the evidence supports the submission that the complaint will succeed at a full hearing

5. it demonstrates a 'pattern' in relation to the allegations of victimisation outlined in the original complaint.

8. The new material related to:

1. A letter served on ERG on 9 April 2021 from the respondent’s solicitors relating to the Local Court proceedings. He claimed that it should not have been served on him as he was legally represented in those proceedings.

2. A further email sent to him and his lawyer on 12 April 2021.

3. The respondent’s failure to serve the Statement of Claim in the Local Court proceedings on his ex-wife, who is the second defendant in those proceedings.

4. Evidence of an additional alleged incident involving false imprisonment of which he said he was not aware when he filed the original complaint with the Anti-Discrimination Board. It is alleged that the respondent directed the applicant’s daughter to remain at school after school hours on 13 September 2019 until she was collected by her maternal grandmother, against her wishes.

9. None of these matters were included in the complaint before the President of the Anti-Discrimination Board.

10. In view of this request I made the following directions:

1. The applicant should provide a copy of the material (if he has not already done so) to the respondent by 6 May 2020.

2. The respondent should file written submissions regarding whether the Tribunal should consider the new material and if the Tribunal does consider it, any submissions on the substance of the issues raised by the material, no later than 15 May 2020.

3. The Tribunal will proceed to issue its decision on the question of leave after 15 May 2020 without further hearing unless either party advises a hearing is required.

11. The respondent filed submissions in reply on 12 May 2021. It submitted that the new material was not relevant to the discrimination complaint against it, Its failure to serve ERG’s ex-wife was due to not having her current address and the applicant had declined to provide it. It complained that ERG was litigating the facts of this complaint in other proceedings.

12. The respondent did not seek a further hearing on whether the material should be admitted. ERG requested a further hearing of these issues. I considered whether a hearing was required before determining whether to admit the material

13. Section 50(2)-(4) of the Civil and Administrative Tribunal Act 2013 provides:

‘(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.”

14. I am satisfied that a further hearing is not required as both parties have provided detailed written submissions concerning the issue of whether the new material should be admitted and I have had the opportunity to view the material.

15. I have determined that the new material should not be admitted or considered as part of the leave application. The incidents complained of were not part of the original complaint. In order to consider them as instances of victimisation, the complaint would have to be amended. When a complaint which has been declined by the President is the subject of proceedings before the Tribunal, however, the complaint may only be amended after leave has been granted not before. Amendment is dealt with by s 103 of the ADA which provides:

“103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.”

16. Before leave has been granted under s.96(1) there are no proceedings before the Tribunal and therefore s 103 cannot be applied to amend the complaint as it is (Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34). Accordingly, I have no power under s.103 to amend the complaint at this stage and in determining whether to grant leave I will be considering the complaint as it was referred by the President.

17. The new material cannot be considered as evidence relevant to the existing victimisation complaint as it either post dates the complaint or is an additional instance of alleged victimisation or discrimination which was not part of the original complaint.

Relevant legislation

18. Section 4 of the AD Act defines “race” as:

“race includes colour, nationality, descent and ethnic, ethno-religious or national origin.”

19. Section 7 provides:

“7 What constitutes discrimination on the ground of race

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator:

(a)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.”

20. Section 17 provides:

“17 Education

(1)   It is unlawful for an educational authority to discriminate against a person on the ground of race:

(a)   by refusing or failing to accept the person’s application for admission as a student, or

(b)   in the terms on which it is prepared to admit the person as a student.

(2)   It is unlawful for an educational authority to discriminate against a student on the ground of race:

(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 subjecting the student to any other detriment.

(3)   Nothing in this section applies to or in respect of a prescribed educational authority in relation to such circumstances, if any, as may be prescribed.”

21. Section 50 provides:

“50 Victimisation

(1)   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.

(2)   Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

22. Section 53 provides:

“53 Liability of principals and employers

(1)   An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2)   If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3)   Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4)   For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

23. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b)   the rights of the complainant under sections 93A and 96.”

24. Section 93A provides:

“93A Referral of complaints to Tribunal at requirement of complainant

(1)   If the President has given a complainant a notice under section 87B (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal.

(2)   On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal.”

25. Section 96 provides:

“96 Leave of Tribunal required for inquiry into certain matters

(1)   A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

…”

The issues

26. A person may make a complaint to the President on their own behalf or on behalf of another alleging that a person(s) has contravened a provision of the ADA (s 87A(1)(a)(i)).

27. Section 92 provides that the President may decline the complaint if he is satisfied of any of the matters in that section.

28. Where the President has declined a complaint under s 92 of the ADA the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

29. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

30. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]). The evidence of the applicant will be taken to be true at this stage of proceedings for the purpose of determining whether the applicant could succeed in his complaint (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73.

The discrimination complaint

The applicant’s case

31. The applicant alleges that:

1. His daughter is white, of British/Australian heritage.

2. She was questioned by the Deputy Headmistress and another staff member in relation to an alleged incidence of marijuana use. She denied the allegations. The teachers allegedly told his daughter that if she admitted the allegations she would receive a lesser punishment; repeatedly questioned her; said “it will be worse if we have to call you back in” and “if we have to call the police you will be in real trouble”.

3. Another student who is of Aboriginal descent and was involved in the incident did not receive the same level of questioning. This student had been found with drugs in her possession previously. He suspects that the other students involved received the same suspension, although he alleges that they all had done more serious things such as buying and selling drugs on school grounds.

4. His daughter was singled out based on her race to avoid any potential criticism of the school for targeting a student of Aboriginal descent. The school assumed she was smoking marijuana because she was friends with the other girl.

5. Subsequently the respondent commenced Local Court proceedings to recover unpaid fees, delayed his daughter’s enrolment and provided unjustified information to an alternative school about his daughter. This was done because of his complaint and constituted victimisation.

The respondent’s case

32. The respondent states that when the incident came to the school’s attention, the Deputy Headmistress interviewed nine students including the applicant’s daughter in order to investigate the incident and allow the students to provide their version of events.

33. The applicant’s daughter was the only student who admitted smoking marijuana. A file note was prepared of the interviews.

34. The applicant at first advised the school that he was happy with how the school was handling the matter and confirmed that his daughter was telling the truth. The respondent made a file note of this conversation.

35. Subsequently when the applicant was informed that the school was considering suspending his daughter he claimed that his daughter had been coerced into admitting the conduct and denied that she had admitted smoking. His daughter did not support his claims when called into the meeting.

36. The applicant’s daughter was suspended for one week.

37. Subsequently the applicant withdrew his daughter from the school and would not be paying further fees. The school advised that it would be pursuing unpaid fees to which it was contractually entitled. The claim for unpaid fees was signed 10 November 2020, before his complaint was accepted by the ADB on 23 November 2020.

38. The respondent produced a schedule at the leave hearing of the students involved in the alleged incidents, a summary of the alleged conduct, their race and the disciplinary outcomes. The applicant objected to this document being tendered as he had no notice of it. I have not considered any part of this document which the applicant disputes. For the purpose of the question of leave, I have considered only the disciplinary outcomes identified by ERG as applying to his own daughter and the Aboriginal student he suggested as a comparator.

Consideration

39. The Tribunal must determine whether it would be fair and just for leave to be granted. Whether either of the complaints would have any prospect of success is relevant to this question. In order to succeed the applicant would have to establish:

1. That the respondent, as an educational authority, treated ERG’s child less favourably than a student of another race would have been treated in the same or not materially different circumstances between 17 June and 21 September 2020,

2. on the ground of race,

3. by subjecting her to a detriment.

In assessing prospects of success, I must take the complainant’s evidence at its highest.

40. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, concerning a student who had been suspended and later expelled for violent behaviour associated with his disability, the student claimed discrimination under s 5(1) of the Disability Discrimination Act 1992 (Cth). Justices Gummow, Hayne and Hayden (who were part of the majority) described the process for determining if there was less favourable treatment on the prohibited ground (at [213]):

“Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person’s disability ‘in circumstances that are the same or are not materially different’. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person’s disability.”

41. This establishes a two-stage process to determining whether direct discrimination has occurred – first establishing whether the treatment given to ABC was less favourable than it was, or would have been, but for her race; and secondly if that is established, then determining whether that treatment was because of her race. (See Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210 at [40-43] and Masters v Reserve Hotels Pty Ltd atf the NBF Trust [2020] NSWCATAD 115 at [118].)

42. The importance of taking the correct circumstances into account was emphasised by Gleeson CJ in Purvis at [223 – 224]:

“In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.

43. The circumstances are all of the objective features which surround the actual or intended treatment of the complainant by the respondent.

Less favourable treatment

44. ERG claims that his daughter was treated less favourably by the school than a student of another race was treated, or would have been treated, in the same or materially the same circumstances. As a comparator, he points to another student of Aboriginal descent. This student was also interviewed and was found to have possessed marijuana and was also suspended for 7 days. There was no evidence of the manner in which she was interviewed by the school, however so there is no evidence of whether the manner of interview of ERG’s daughter constituted less favourable treatment than another student actually received.

45. The two students received the same punishment. Despite this, ERG argues that this also amounts to less favourable treatment for his child because his child did not smoke marijuana. The school should have therefore given her a less severe penalty than the comparator, who allegedly had marijuana in her possession and had a “track record”.

46. ERG also has an alternative argument, that his daughter was treated less favourably than she would have been treated, had she not had a friend of Aboriginal descent. He alleges his child was “singled out”’ because of her friendship with the Aboriginal student and the school concluded that she had been smoking marijuana because of her association with that student. This argument, however, seems to be in direct conflict with the proposition that she would have been treated more favourably had she been of Aboriginal descent.

47. The available evidence of the circumstances includes file notes made by the school including:

1. A redacted file note dated 18 June 2020 which states:

[ABC] was with [student name] on Saturday 13 June. She admitted that she and [student name] had marijuana. She did not say where it came from...”

2. A file note dated 19 June 2020 of a meeting between ERG, Dr Julie Townsend, and Ms Clancy where it is recorded that Ms Clancy and Dr Townsend “discussed the situation with him about [ABC] smoking marijuana” and that they told him that when Ms Clancy interviewed his daughter, “she told her that she did smoke marijuana”.

3. A letter dated 19 June 2020 from the school to ERG stating that ABC has been suspended for 7 days as a result of a serious breach of school rules. “We trust that this will be an opportunity for ABC to reflect on the choices she makes and the implications of those choices.”

48. I note that ERG disputes the veracity of the file notes and believes the school has fabricated them to cover up its discriminatory conduct. He does not dispute, however, that the school interviewed his daughter, claimed that she admitted the conduct and acted on the basis that she had smoked marijuana. The available evidence also favours that interpretation. Smoking marijuana breached the school rules, which provided that the possession use or misuse of illegal drugs at any time was a serious misdemeanour that may result in suspension or expulsion.

49. Taking the complainant’s evidence at its highest, I have assumed that ABC did not smoke marijuana and denied doing so when asked.

50. But even if I assume those facts to be true, ERG must show that there are some prospects of proving that her treatment was less favourable than the treatment that the school did give, or would have given, to a student who was not of that race, in the same or not materially different circumstances, as the ADA requires.

51. In relation to the manner of the interview, he has not shown that his daughter was treated less favourably than a student of another race was treated or would have been treated who also had not smoked marijuana and had not admitted it.

52. In relation to the punishment, ERG asks the Tribunal to infer that because an Aboriginal student who he says had a “track record” and who possessed marijuana received the same punishment as his daughter, his daughter’s punishment represented less favourable treatment than a student of another race would have received. This is not a necessary or logical inference from the facts. There may be a possibility that ERG could establish this, but it is not at all evident from the material before the Tribunal.

53. I conclude for the reasons stated above that ERG has remote, but possible prospects of establishing that his daughter experienced less favourable treatment than a person of a different race would have experienced in the same or not materially different circumstances.

Causation

54. In addition to establishing less favourable treatment, if leave were granted, ERG would also have to establish that this treatment was because of his daughter’s race (“causation”). He submits that because his daughter did not smoke marijuana, there is no other reason other than his daughter’s race to explain the disparity of punishment. He alleges that the school wished to make an example by punishing the students involved but did not wish to make an example of the Aboriginal student because of her race. Had she not been white and Anglo-Australian, his daughter would have received a lesser punishment.

55. The test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the “true basis” (per Gleeson CJ in Purvis at [102]), the “genuine basis” (Gleeson CJ at [102]), or the “real reason” (McHugh and Kirby JJ at [144]) for that treatment. See also Nicholls and Nicholls v Director General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

56. As there is no direct evidence that the school interviewed his daughter in a harsh manner or imposed a 7 day suspension because she was white and Anglo-Australian, any causal link between her race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

57. ERG would ask the Tribunal to infer that his daughter’s race was the reason for the actions taken by the school because:

1. The alleged actions of the other student were more serious than his daughter’s alleged actions

2. The school wished to deal with students using drugs but avoid any criticism for targeting an Aboriginal student, therefore they victimised a non-Aboriginal student

3. The school assumed because his daughter was a friend of the Aboriginal student, that she had smoked marijuana

4. There is no other possible reason for the treatment.

58. The respondent submits that there are other plausible reasons for the treatment, in particular:

1. It was reasonable and necessary for it to investigate the matter and allow the students to provide their version of events

2. The action taken was based on the nature of the act and the need for discipline

3. There is no persuasive information to support an inference that race was the cause

4. The discipline imposed was equal and took into account the nature of the conduct.

59. In my view there are no facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of ERG’s daughter’s race. ERG could not point to any evidence that the school held the views in (2) and (3) above. There are other plausible reasons for the conduct. In my view, it is not probable that ERG could establish a causative connection between the conduct of the respondent and his daughter’s race.

60. As there is little or no prospect that ERG could establish less favourable treatment or causation, in my view the complaint of race discrimination lacks substance.

Other considerations

61. ERG also submitted that his complaint should be allowed to proceed so that he can obtain access to other evidence from the school and adduce evidence from his other claims against the school (defamation and personal injury claims). This includes affidavit evidence and a medico-legal report. He submitted that he had been denied sufficient time to bring relevant matters to light.

62. The respondent submitted that the applicant had sufficient time to raise matters before the Anti-Discrimination Board and he provided abundant material. The complaint was speculative and the applicant wished to issue summons to search for additional evidence so he could expand the scope of his complaint.

63. The purpose of granting leave to continue a complaint in the Tribunal under the ADA is not to allow the complainant to search for evidence which may provide grounds for his complaint. The grounds, alleged facts and/or basis for logical inferences must be present, even if the evidence is scanty at the complaint stage. Here the complaint relies on weak inferences and allegations.

64. ERG stated that he had commenced personal injury proceedings against the school in respect of psychological injury occasioned to his daughter by this and other alleged conduct. This is an alternative remedy which is being pursued in relation to the complaint and that is a consideration relevant to granting leave under s 92(1)(a)(iv).

65. Overall, taking the above matters into account, I am not satisfied that it would be fair or just to grant leave for proceedings based on the complaint of race discrimination to be brought in the Tribunal.

Victimisation

66. The applicant also alleges that the respondent has breached s 50 of the ADA by taking action which subjected himself and his daughter to detriment because they had alleged that the school had breached the ADA. The applicant alleges that he was victimised by the school commencing legal proceedings against him to recover unpaid school fees, and that his daughter was victimised by the school refusing to provide references to another school, raising his family law proceedings as an issue and delaying his child’s enrolment at the other school.

67. The available evidence drawn from the documents before the Anti-Discrimination Board shows that on 22 June 2020 ERG stated in a letter to the school that it appeared to him that the disciplinary action involved racial discrimination under the ADA.

68. ERG subsequently advised the school that he would be withdrawing his daughter as a student. The school wrote to ERG on 1 July 2020 stating that he had not provided sufficient notice of his daughter’s withdrawal and would be charged a withdrawal fee of one term’s tuition fees. ERG responded in writing to the school on the same day that he would not be paying the fee and that the school was “welcome to pursue me in court”.

69. On 2 July 2020 the Headmistress wrote to ERG informing him that they had received a student background information form from his daughter’s new school and that they had declined to comment and advised the school to contact him for all information. On the same day ERG replied in writing:

“I note your reluctance to provide any information to [name of school] and can only draw the conclusion that you recognise any written comments on the alleged incident that are passed on to a third party would be defamatory. You have implied that you are focussed on ABC’s best interests and yet your refusal to forward the requested information to [name of school] has delayed [name]’s enrolment until next term which will result in her missing additional school time and will undoubtedly impact her academically.”

He then listed other potential schools he would be approaching and wrote:

“It appears I do not need to caution you in making any further defamatory comments as part of the enrolment process with the above schools…”

70. He repeated that he would not pay the school withdrawal fee. He then gave the school an opportunity to resolve the matter which included his daughter being allowed to enrol with no negative effect.

71. On 13 July 2020 the school replied noting that he was applying to other schools and stated: “The school will support your applications.” On 23 July ERG emailed the Headmistress stating that the school had not passed on the information required by his daughter’s new school. On 27 July 2020 ERG sent the school a “Concerns Notice” under the Defamation Act 2005 regarding alleged defamation of his daughter and himself.

72. The legal proceedings against ERG and his ex-wife were filed on 10 November 2020 according to the court’s stamp on the statement of claim. The claim made was that ERG’s withdrawal of his daughter breached the agreement signed when she was enrolled at the school, which specified one term’s notice in writing was required before withdrawing a student, otherwise a full term’s fees would be charged in lieu of notice.

73. On 8 December 2020 ERG wrote to the Anti-Discrimination Board stating: “It would appear that St Catherine’s have reacted directly to your correspondence last month and filed this statement of claim for maximum psychological impact a couple of weeks before Christmas.”

74. The applicant agreed that the respondent was entitled to commence legal proceedings but submitted that the school timed the commencement of the legal process to cause damage and distress.

75. The respondent submitted that the applicant has failed to show any detriment, or if he has, that no causal link between the detriment and any of the grounds in s 50(1)(a) to (d). The complaint is speculative and there is nothing exceptional about the school’s use of legal process to recover a debt.

Consideration

76. The word “detriment” in the context of s 50(1) of the Act is “loss, damage or injury” that is “real and not trivial” (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146).

77. The alleged conduct, if established, could constitute detriment to ERG and/or his daughter. Causation must also be established in respect of one of more of the above allegations, that one of the “real”, “genuine” or “true” reasons they were subjected to that detriment was because ERG and/or his daughter did one of the things listed in s 50(1) of the Act: Nicholls at [28].

78. It is evident that ERG alleged in correspondence to the school that it had discriminated against his daughter as early as 22 June 2020. ERG lodged his complaint on his daughter’s behalf with the Board on 23 September 2020. It was accepted on 23 November 2020 (after the legal proceedings were filed). He also told the school that his daughter had made allegations to him of certain conduct by teachers which could have breached the ADA. Again there is no direct evidence that the school’s alleged conduct towards his daughter or its commencement of legal proceedings was because of the complaints and allegations made by ERG or his daughter. ERG asks the Tribunal to infer causation, but there is no real evidence to make such an inference. In fact there are other possible causes. In particular:

1. ERG made it clear in correspondence that he refused to pay the fees, did not agree that the contractual obligation applied to him, and told the school it was “welcome” to commence court proceedings. The school’s correspondence stated its view that it was entitled to the fees.

2. ERG had already accused teachers at the school of making defamatory comments about his daughter in his letter of 22 June 2020 and notified them on 29 June 2020 that he would be issuing a Concerns notice under the Defamation Act. In those circumstances it is not improbable that the school would not wish to disclose information about his daughter to a third party.

3. His letter of 2 July 2020 to the school blamed them for not forwarding information but on the other hand said: “It appears I do not need to caution you in making any further defamatory comments as part of the enrolment process with the above schools”. This was an ambivalent message which cast further doubt on how he wished the school to behave.

79. In these circumstances I am not satisfied that there is any prospect of the applicant substantiating his claim of victimisation.

Conclusion

80. Taking the above matters into consideration, I am of the view that the complaint is lacking in substance and the conduct alleged, if proven, would not disclose the contravention of a provision of the ADA. Moreover another potentially more appropriate remedy against the school is being sought by ERG, through personal injury proceedings. I therefore conclude that it would not be fair or just to grant leave to proceed with either complaint.

Orders

1. Leave to proceed with the complaint of race discrimination is refused.

2. Leave to proceed with the complaint of victimisation is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 01 June 2021