Harding v Vice Chancellor, University of New South Wales
[2001] NSWADT 205
•12/07/2001
CITATION: Harding -v- Vice Chancellor, University of New South Wales [2001] NSWADT 205 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Kathleen Harding
RESPONDENT
Vice Chancellor, University of New South WalesFILE NUMBER: 001045 HEARING DATES: 19, 20, 21/02/2001, 26/04/01, 22/05/2001, 03/08/2001 SUBMISSIONS CLOSED: 08/03/2001 DATE OF DECISION:
12/07/2001BEFORE: Ireland G - Judicial Member; Alt M - Member; Clayton S - Member APPLICATION: Disability Discrimination - Education MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Bogie v University of Western Sydney [1990] EOC 92-313
Kitt v Tourism Commission [1987] EOC 92-196
Commonwealth of Australia v Humphries & Ors [1998] EOC 92-951
Jamal v Secretary Dept of Health [1998] NSWLR 225
Taikato & Anor v Western Sydney Area Health Service [1999] NSWADT 52REPRESENTATION: APPLICANT
In person
RESPONDENT
J Oakley, barristerORDERS: 1. Complaint dismissed; 2. No order as to costs.
Background
1 On 13 April 1989 the Applicant lodged a complaint with the Anti-Discrimination Board, in which she alleged discrimination by the Respondent on the grounds of her physical and intellectual impairment in the area of education. At the Hearing, the Applicant extended that allegation to include an allegation of discrimination in the provision of goods and services.2 On 18 June 1989 the Applicant advised the Board that she wished that her complaint be left in abeyance. After being interviewed by an officer of the Board, Ms Harding subsequently indicated to the Board that she did not wish to proceed with the matter and the Board closed the file.
3 On 11 September 1997, the Applicant lodged with the Board a further complaint against the Respondent, in which she made further allegations of discrimination on the ground of disability and age. The complaint covered the whole of the period of her relationship with the Respondent University. At that time, the Applicant advised the Board that she wished to proceed with the matters that were the subject of her original complaint in 1989, as well as the new complaint.
4 In 1989 there was no provision in the Anti-Discrimination Act 1977 ("the Act") which empowered the Board to finalise a matter, other than by way of declination under Section 90 of the Act, or by referral to the Tribunal. Although the Board had closed its file in relation to the complaint in 1989, there was no legislative power at that time for the Board to maintain that the matter had been finalised. The Board accordingly re-opened the file in relation to the complaint made in 1989 and the Board in 1997 proceeded to investigate that complaint. The President of the Board did not exercise his discretion under Section 88(4) of the Act in relation to the 1997 complaint, as it had been lodged outside the statutory six month time limit, and the Board closed the file relating to that complaint.
5 In relation to the complaint made by the Applicant in 1989, the President after investigating that complaint decided to decline it as lacking in substance under Section 90(1) of the Act. On 2 May 2000, the Applicant requested that her complaint be referred to the Tribunal, under section 91(2) of the Act.
6 During the Hearing of the Tribunal’s inquiry into the complaint, questions were raised as to the extent of the complaint made by the Applicant in 1989, which was the subject of the referral by the President of the Board to the Tribunal. The Report of the President to the Tribunal pursuant to Section 91(2) of the Act indicates that because of the long delay between the date of the complaint and the re-opening of the complaint in 1997, the President did not follow the usual course in his investigation of referring the complaint to the Respondent for a response. Such a letter often has the advantage for the Tribunal of stating precisely the terms of the complaint which the Respondent is required to answer. In defining the limits to the complaint for its inquiry, the Tribunal has relied on the statement by the President of the Board to the Applicant in his letter of 7 April 2000 in which the President sets out his reasons for determining that the complaint lacked substance. In that letter, the President advised the Applicant:
7 After hearing the evidence and the submissions of the parties, the Tribunal is satisfied that the complaint about which it is required to inquire following the reference to it under Section 91(2) of the Act, is in two parts, namely:
"You told the Board that the University unlawfully discriminated against you on the basis of physical and intellectual impairment because it failed to grant you special consideration in relation to your performance in bio-chemistry in 1998 and then excluded you for two years with re-admission subject to re-competing for a place."
8 In the view of the Tribunal, in order to fully inquire into those complaints, it has been necessary to traverse the background of the Applicant’s academic career at the Respondent University from the time of her first admission into first year of the medical course of the University in 1983. Before proceeding to examine that record in detail the Tribunal considers it appropriate to comment about aspects of the presentation of evidence and material to the Tribunal in its examination of that background.
(1) A complaint that on the grounds of her physical and intellectual impairment, the Applicant was unlawfully discriminated against by the Respondent for its failure to grant to her special consideration in relation to her performance in bio-chemistry in 1998; and
(2) On the ground of her physical and intellectual impairment, the Respondent unlawfully discriminated against the Applicant as it failed in 1989 to grant her application to show cause why she should not be excluded from the second year of the medical course at the Respondent University in 1989 and that the University determined that the Applicant be excluded from the medical course at the University for 2 years with re-admission subject to re-competing for a place after that period.
State of the Evidence
9 The Tribunal finds it necessary to comment on the manner in which the material supporting the complaint was presented to the Tribunal and to comment on the complexity of the task that is often involved in an inquiry of this nature to ensure that all the aspects that can assist the Tribunal in reaching a decision are fully and adequately placed before the Tribunal. This task becomes especially difficult when an applicant is unrepresented, as Ms Harding was in this inquiry, and does not have the experience of a legal representative in presenting to the Tribunal the material in support of her claims in a concise but comprehensive manner.10 The Hearing of this inquiry was spread over 4 separate occasions, commencing in February 2001 and concluding in August 2001. This had the effect of disrupting the flow of evidence and caused a degree of repetition in the evidence of the Applicant which made it difficult for her as well as for the Tribunal in ensuring its understanding of the relevance and significance of aspects of that evidence. The task of the Tribunal in this latter respect has not been an easy one and the Tribunal has been required to re-visit all of the evidence to be satisfied that the Applicant’s presentation of her case has been thoroughly examined.
11 Other aspects of the evidence before the inquiry require comment.
12 In the presentation of her case before the Tribunal, the Applicant perceived that she needed to make reference to material and statements in Affidavits lodged with the Tribunal by the Respondent. In the face of an objection by Counsel for the Respondent to reference by the Applicant in her case to that material without the Affidavits being an exhibit before the Tribunal, the Applicant was warned that if she tendered the Affidavits she would be deemed thereby to adopt the statements and the material in those Affidavits. The Affidavits were those of Ms Judith Tonkin, the Deputy Registrar of the Respondent University; Dr Jessica Davis a member of the Appeal Committee of the Council of the Respondent University in 1989, at the time the Appeal Committee considered the Applicant’s appeal relating to her Show Cause Application; and the Affidavit of Mr Gordon Rees, an Administrative Officer in the Faculty of Medicine at the Respondent University. A further consequence of the tender of those Affidavits by the Applicant, was that she was not able to cross-examine those Deponents. The Respondent did not seek to cross-examine the Deponents, which it would have been entitled to do, and the Tribunal has not had the advantage of any oral examination of the Deponents and the statements and material in their Affidavits.
13 A material issue in the inquiry was the extent of the Applicant’s medical condition at times relevant to the complaints and the effect of her medical condition on her being able to function in a normal way. Neither the Applicant nor the Respondent presented any direct medical evidence to the Tribunal. The evidence of the Applicant’s medical condition had to be discerned from letters written by medical practitioners who had treated the Applicant, from Pathology Reports and from the Applicant’s own description of her medical condition, both in her evidence and in statements that she made in support of various applications that she had made to the Respondent University. The Respondent did not produce evidence to the Tribunal about the Applicant’s medical condition nor did it seek to examine the medical practitioner’s correspondence that the Applicant presented to the Tribunal.
14 A critical issue in the consideration by the Tribunal of the Applicant’s complaint is the question whether the treatment about which the Applicant complains, was on the ground of her alleged physical or intellectual impairment. The alleged unfavourable treatment of the Applicant related mainly to decisions taken by Committees of the University which considered her application for special consideration in December 1988, her application to Show Cause against her disqualification from enrolment, in February 1989 and her appeal application in March 89. Minutes of the Meetings of those Committees may have assisted the Tribunal to ascertain reasons for the decisions taken at those meetings. The Respondent informed the Tribunal that the minutes of those Committee Meetings were no longer available.
15 The Respondent called no evidence in reply to the evidence put before the Tribunal by the Applicant. The Affidavits which had been lodged with the Tribunal by the Respondent, no doubt in support of its presentation to the Tribunal, were produced in evidence by the Applicant in her case. The Tribunal is unable to determine whether it would have been assisted by a further examination or cross-examination of the Deponents to those Affidavits.
16 The Tribunal should make one further comment about the presentation of the case of the Application to the Tribunal. Despite constant requests by the Chairman of the Tribunal to do so, the Applicant did not address either in her presentation of evidence or in her prepared submissions, the application of the evidence to the elements of the law which it was necessary to establish if she was to satisfy the Tribunal that her claims of discrimination were established.
17 Overall, the Tribunal has had to spend considerable time in collating the relevant aspects of the evidence in order to ensure that the Tribunal considered in its best light from the Applicant’s interests, the strength of that evidence and its support for her complaints.
18 With these special features of the evidence before it, the Tribunal has proceeded to examine those complaints. It first embarks on an examination of the chronological history of the relevant events in the Applicant’s academic career at the Respondent University.
The Applicant’s Academic History at the University
19 In 1983 the Applicant enrolled in the Bachelor of Medicine and Bachelor of Surgery course, Year 1, at the Respondent University. At that time the Applicant was aged 42 and she had obtained an aggregate mark of 413 in the 1982 Higher School Certificate course. With that aggregate she qualified for admission into the medical course at the Respondent University.20 On 3 May 1983, the Applicant discontinued the medical subjects in the first year Medical Course, without failure, but continued and successfully completed the general study subjects in that year. As a consequence of her discontinuance of the medical subjects in the course in 1983, it was necessary for the Applicant to re-enrol in the first year of the 1984 Medical Course at the University. Her aggregate HSC mark of 413 was insufficient to qualify her for admission. On 31 January 1984 she applied for special consideration to be admitted into that course. The application was not successful. She then appealed against the decision to exclude her. That Appeal was successful and she was admitted into the first year of the 1984 Medical Course. In her Appeal, the Applicant relied, in establishing exceptional grounds for her discontinuance of the medical subjects in 1983, on exceptional circumstances relating to her divorce and the difficulties that she experienced in dealing with family and property settlement matters in 1983. In her Appeal, she stressed that she had taken special steps to prepare her for returning to the Medical Course in 1984.
21 The academic records of the University show that the Applicant discontinued the Medical Course in 1984 in both session 1 and session 2. The Deputy Registrar of the University stated that the Applicant discontinued in approximately June or July 1984 and that no results of her course were recorded.
22 On 4 January 1985, the Applicant applied to re-enrol in the first year of the Medical Course 1985 and she sought deferral for one or two years from attending the course. The Application was rejected by the University. In her Application, the Applicant stated:
23 In February 1986, the Applicant was admitted to the first year Medical Course. The basis of that admission is not shown in the evidence. The academic record relating to the Applicant shows that her results for 1986 were:
"I have yet to determine the reason for my lack of success (in 1984) but can only say that the dramatic changes in my life over the past few years detracted from my studying ability."
24 Those results infringe the rules of the University governing re-enrolment and on 22 December 1986, the University advised the Applicant that she was required to show cause why she should be allowed to re-enrol in 1987 in the first year Medical Course (Course 3800) and in the four subjects in which she had failed.
Anatomy – Fail
Introductory Clinical & Behavioural Studies (ICBS) – Fail
Medical Biophysics – Fail
Chemistry and Biochemistry for Medical Students – Fail
25 On 7 January 1987 the Applicant applied for special permission to re-enrol in 1987 in Course 3800. In her application, the Applicant referred to her medical difficulties during the year and she attached a Certificate from the Student Health Unit of the University which showed that during the year the Applicant had attended four medical examinations suffering from sinusitis, one examination for blocked eustachian tubes and on 7 October 1986, for upper respiratory infection and goitre. In her application, in relation to the goitre, the Applicant referred to “acute medical problem” and to an enlarged and blood engorged throbbing goitre on one occasion in week 9. She stated in the Application:
26 She also referred to having had severe attacks of allergy and sinusitis during the year. She stated further that she had had counselling to improve her studying difficulties. She acknowledged that she had not attended lectures or practical courses after week 10 in 1986.
“I had no more problems of this kind and do not anticipate a recurrence.”
27 On 6 February 1987 the University rejected the Application. That decision was automatically reviewed by the Re-enrolment Committee of the Professorial Board and it decided that the Applicant be excluded from the medical course for two years – 1987 and 1988.
28 On 17 February 1987, the Applicant appealed against the latter decision. It is worthy to note that in the documents supporting her appeal, the Applicant showed that for 21 months between July 1984 and February 1996, she had held the position of a Specialist Group Accountant in charge of Taxation for Consolidated Press Limited, which she stated enabled her to recover financially. She also stated that her health generally was good but that 1986 had been a bad year for her health. She emphasised that in 1986 she in fact was “Absent Fail” and should not have been recorded as simply “Fail”. She admits that she had had difficulty adopting to certain aspects of her course but that she was confident in 1987 she would overcome her study problems both by her own efforts and by monitoring her study with Mr Fred Orr, a Student Counsellor at the University.
29 On 25 March 1987, the Appeal Committee of the Council of the University rejected that Appeal.
30 On 13 April 1987, the Applicant made a special application to the Registrar of the University, based on her medical condition, for special consideration to enable her to re-enrol in the medical course in 1988. In her letter in support of that application, the Applicant stated that since being advised of her exclusion from the University, she had final tests completed and she had been referred to a thyroid specialist. She annexed a letter from Dr John Stiel dated 9 April 1987 in which he stated that he saw the Applicant on 17 March 1987 and that she had had a goitre since puberty but had noted symptoms of palpitations and an increase in the size of the goitre in November 1986. She was investigated at that time and it was found that she had a normal thyroid function test but the scan revealed a multi nodular goitre. The Applicant had complained of tightness in the neck and shakiness associated with the increasing size of her goitre. Dr Stiel stated further that on 17 March 1987 she was well with a normal blood pressure and her thyroid function tests were normal. He stated that he had recommended that the Applicant undergo thyroidectomy “in due course” and in the meantime he had tried to suppress the functioning component of the goitre with thyroxin medication. In her letter of application, the Applicant stated that she realised that she should have sought leave of absence from the University in 1986 rather than go through the process of the Show Cause Application. She stated that she was yet to see a Surgeon in relation to her goitre and that the thyroxin treatment for three months was making her very tired.
31 On 15 May 1987, the Registrar advised the Applicant that the Appeal Committee had reviewed her position and that it had agreed to grant her leave of absence for the first year medical course in 1987 and that she was permitted to re-enrol in first year Medical Course in 1988.
32 In February 1988, the Applicant re-enrolled in the first year of the Medical Course.
33 The academic record of the Applicant for 1988 shows the Applicant achieved the following results:
34 The Tribunal notes that at the time of her enrolment in February 1988, the Applicant had not attended the medical course at the University between June and July 1984 and February 1988, except for a period of approximately 10 weeks in the first session of the medical course in 1986.
Session 1 –
Biology for Medical Students – Pass
Session 2 –
Anatomy 1 – Pass
Biochemistry for Medical Students – 42 Fail
ICBS – 57 Unsatisfactory Fail.
The reference to “Unsatisfactory Fail” in the subject ICBS was described as a failure attributable to the Applicant failing in an essential component of the course notwithstanding that her overall mark was in excess of 50%.
35 On 7 June 1988, the Applicant completed a Request for Special Consideration in relation to her attendance during session 1 of the 1988 course. She stated that the period affected by the Application was from 7 March 1988 to “continuing problem”. The subjects for which she sought consideration were:
36 In her application, the Applicant stated that in October 1986 she suffered a “thyroxic crisis” without medical treatment. She said that statistically this “makes me lucky to be alive”. The Tribunal notes that no mention of such a dramatic crisis was made by her in her application to the University in 1987 except in the special appeal to the Registrar on 14 April 1987 (which was granted), she refers to her diagnosis of a multi-nodular goitre and that she was having thyroxin treatment for a period of three months and that she had had an acute medical problem with her goitre on one occasion in week 9 in 1986. In her application in June 1988, the Applicant stated further, that the problem was a multi-nodular goitre which went undiagnosed until February 1987. That application attached a letter from Professor T Reeve dated August 1987 which stated that the Applicant had undergone a thyroidectomy which disclosed that she had a “firm compressing multi-nodular goitre”. Professor Reeve stated:
Anatomy 1
Biology for Medical Students
Biochemistry for Medical Students.37 The application also attached to it two pathology reports dated 2 March 1988 and 22 April 1988. The first pathology report shows that the Applicant’s thyroxin level indicated that she was suffering with hyperthyroidism and the second report on 22 April 1988 showed that her thyroid-stimulating hormone level was within the normal range.
“It was quite a difficult procedure as there were a number of projections posteriorly which multiplied cause distortion of the anatomy of the recurrent laryngeal nerve on the left.
She tolerated her surgery well, she is eucalcemic post operatively and I expect discharge early next week.”38 In her application, the Applicant stated that she had experienced severe internal cramping and loss of balance in November 1987 and that by February 1988 she was still experiencing difficulties and that with increased activity the 100mg thyroxin dosage seemed insufficient and that she had increased her intake. She stated that during the period from March 1988 to the end of April 1988 she had tried various combinations of thyroxin dosage and had experienced symptoms of both hypo and hyper thyroidism. She described these episodes as including:
39 She stated:
“loss of balance, heart symptoms, joint and muscle stiffness, confused thinking, slow thinking, difficulty in making connections and in drawing logical conclusions, intermittent tiredness, sleeplessness.”
40 She concludes however:
“In addition, after sustained reduced levels (of thyroxin dosage) there have been isolated instances of near collapse.”
41 She requested that she be given tolerance by the University whilst the balancing process in relation to her thyroxin dosage, is proceeding. The Applicant attached to her application a certificate from her treating General Practitioner, Dr Harris, who stated:
“I seem now to be reasonably stable … but am still experiencing problems which although not so frequent, can be quite severe.”
42 That certificate was given on 6 June 1988. Although not part of her application, some confirmation of the statements made by the Applicant in her application is obtained from a letter dated 3 November 1987 written by Dr Stiel to the Applicant’s then treating Doctor, in which he said:
“I have to advise that the abovementioned has been undergoing stabilisation of post thyroidectomy – hypo-thyroidism.”
43 The material before the Tribunal also contains a pathology report relating to the Applicant of a test conducted on 18 October 1988 which showed her thyroid stimulating hormone test as indicating “the most common cause for this finding is primary hypo-thyroidism.”
“Ms Harding came to see me on 2 November having had some dizziness and unsteadiness in her feet which was particularly marked whilst taking 200mcg thyroxin per day. She tells me that this has partially improved since reducing her dose to 150 mcg.
When I saw her …. there was no evidence of any neurological abnormality and particularly there was no nystagmus, nor ataxia and no incoordination. Her Romberg’s sign was negative.
I would suggest that Mrs Harding continue with the smaller dose of thyroxin, namely 150mcg/day but that if her symptoms persist, should perhaps see a neurologist.”44 The Respondent University acknowledged receipt of the Applicant’s application on 14 June 1988. It stated that the details will be drawn to the attention of the Assessment Committee which reviews the Applicant’s overall performance. The acknowledgment, which is in a printed standard form under the heading “Details of Consideration”, stated:
45 There was no evidence before the Tribunal as to what consideration had been given to Ms Harding at the end of session 1. Ms Harding alleged that she had received no consideration at that time and in particular that she was not consulted by the Head of School, which is the usual procedure of the University when processing an Application of this nature. Ms Harding however proceeded to the second session of the course in 1988.
“Has been undergoing stabilisation of post-thyroidectomy following operation in 1987. This has caused reduced effectiveness in study and impaired concentration.”
46 In her Affidavit tendered to the Tribunal, the Applicant in relation to her changes in dosage of medication of thyroxin in 1988, stated that the medical supervision was not relieving her difficulties and she did not want to accept other medication. She said that she had already commenced studying thyroid and related disorders on her own and was concerned that establishing the right dose was the ultimate goal.
47 She stated:
48 The Applicant went on to describe her academic situation at the end of the first session in 1988 in the following terms:
“After a number of mistakes I continued to adjust the dosage slowly and methodically. Somewhere I passed the line between taking too much replacement and taking too little. There were many complexities but as the University year drew to an end, I was too afraid to make any further adjustment up, fearing the risk of the terrifying heart symptoms I had experienced in first session, an inability to think and being confident that my marks were improving, the option of too little medication was preferred to too much.”
49 In November 1988 the Applicant, having passed anatomy 1 in first session, at the conclusion of session 2 sat for the examinations in the remaining three subjects with the following results recorded in her academic record:
“I also felt ‘safe’ in that I had placed applications for special consideration which had been accepted and the brief summary the University made of their acknowledgments of receipt of my applications seemed reasonable and adequate.
At the end of session 1 I found I had passed anatomy and biology but had received a serious fail in chemistry/bio-chemistry, a mark of 35% only, having been awarded.
I had been given an exemption from chemistry practicals based on my satisfactory performance in 1986 so within that 35% a satisfactory mark for the chemistry practical would have been included unless there was some mistake. I accepted the mark as I found I could not ‘think’ straight during the chemistry exams other than the first small test in chemistry which I passed quite adequately. After two chemistry tests/exams I experienced heart problems of a significant nature, and after one I experienced my heart swinging in my chest like a pendulum. Why I was affected more seriously in one type of exam than another is not easily explained but having lived through almost every nuance of incorrect thyroid medication level I can understand and it has been well established that thyroid excess or deficiency can cause intellectual impairment of various kinds. Suffice to say that these things actually happened while I was undergoing thyroid hormone replacement however brief the medical certificates.
Towards the end of session 1 in 1988 I experienced terrifying heart symptoms in the middle of the night. I awoke with my heart fibrillating rapidly and wildly. I did not know whether to attempt to move to call an ambulance but suddenly and unexpectedly the symptoms vanished and I fell asleep.
I contacted Dr Stiel, an Endocrinologist as I knew there were exams pending. I was too afraid to take any tablets the next day and the following day I took myself down to 100mcg per day and stayed on that dose until I saw him a few days later which was the earliest time he could fit me in. In hindsight I should have had immediate attention but my knowledge of thyroid was far less then than it now is.
Dr Stiel examined me thoroughly which does take a considerable time and issued me a brief certificate.”50 The evidence does not show the dates on which the Applicant sat for the three examinations other than to show that the biochemistry examination was held on 28 November 1988.
Biology for medical students – 55 pass
Biochemistry for medical students – 42 Fail
ICBS – 57 Unsatisfactory Fail.51 In relation to her sitting for these examinations, the applicant raised an issue as to the advice that she alleges that she obtained from Mr Gordon Rees, an administrative officer in the Faculty of Medicine. The applicant stated that she was advised by Mr Rees when making the application for special consideration in session 1, that the worst possible thing she could do would be to miss an examination and she would be given allowance in her marks for the period of time in which she was affected by the adjustments to her thyroxin medication. In his affidavit, Mr Rees denied that he had this conversation with the applicant. He stated that he could recollect only a conversation with the applicant in session 2 when he told her that if she was well enough she should sit the examination. He stated further that he told the applicant that if she considered that her health affected her preparation for an examination she should make an application for special consideration. The Tribunal is not able to resolve this conflict in the evidence. In any event, the allegation of incorrect advice and its effect on Ms Harding is dependent on an assumption that her application for a deferred examination, on medical grounds, had she not sat for the examination, would have been successful. It is an assumption which is too hypothetical to be considered in the context of a complaint of unlawful discrimination.
52 The Applicant also raised an issue relating to difficulties which she alleges she experienced at the end of session 1 and continued during session 2 in the biochemistry subject when the Course Coordinators and the Head of School, especially in the laboratory during practical sessions, became obstructive and disadvantaged her. The Applicant claimed that the attitude of these officers reflected an antagonistic attitude to her because of her history at the University and their perception that she had received undue special treatment in her re-enrolment in the medical course. This claim was not the subject of a separate claim of unlawful discrimination, nor, in the view of the Tribunal, has the Applicant demonstrated that these issues are related in a material sense to the claims of discrimination which have been referred to the Tribunal for this enquiry. The claim however, is of significance to the consideration of the complaints before the inquiry as indicating some antagonism towards the Applicant in the School of Biochemistry. There is no evidence however that enables the Tribunal to connect that attitude to the decisions that were subsequently taken in relation to her application for special consideration or her appeal against her exclusion from the medical course.
53 On 9 November 1988, ie, before the Applicant sat for her biochemistry examination, she lodged with the faculty an application for special consideration in relation to the biochemistry subject. It is noted that the application did not include the subject ICBS. The failure of the University to favourably consider this application is the subject of the first complaint of unlawful discrimination, by the Applicant.
54 In her application, the Applicant listed as the reasons for her application:
55 Annexed to the Application was the following statement by the Applicant:
“A request to refer to her application at the end of session 1;
A statement that the problems had now diminished but were still causing symptoms;
The precise effects were difficult to assess;
The dosage of thyroxin had been reduced to 84mcg per day;
I had extreme difficulties for three weeks prior to first session exams necessitating drastic reduction and severe effects on study.”56 The applicant stated that she expected to be granted a post as a consequence of her application for special consideration.
“On advice from the Medical Faculty I detail the ways in which my studies have been effected:
The letter I have submitted, of necessity, is very detailed in view of my previous history”
1. Reduced number of hours;
2. Reduced effectiveness of study;
3. Periods of not being able to study at all;
4. Physical discomfort during study, some extreme and especially during practical classes;
5. When hypo-thyroid-memory and concentration impaired and inability to assess this;
6. When hyper-thyroid-confusion and tension
7. During exams-unable to assess the precise effects57 Ms Tonkin, the Deputy Registrar of the Respondent University, stated in her Affidavit:
58 The Applicant submitted that the process for deferred examinations (which she referred to as “posts”) and applications for special consideration, are inter-connected. She further submitted that a post can be given by the School of Biochemistry of its own volition or by the Medical Faculty as a result of their consideration of her special consideration application.
“A ‘post’ is a supplementary assessment which may be given to a student who fails an assessment. In 1988 the Faculty Assessment Committee had a discretion whether to grant a supplementary assessment. The Faculty Assessment Committee declined to give the complainant a supplementary assessment task for biochemistry for second session in 1988.
I refer to the complainant’s witness statement filed in the Administrative Decisions Tribunal on 6 December 2000. In particular I refer to the many references to the complainant’s applications for special consideration in 1988.
The complainant applied for special consideration from the Respondent for the whole of her studies in first session 1988 and then again for the whole of her studies in 1988.
An Application for special consideration requires students to submit a special consideration application setting out the subjects and the particular items of assessment for which they are requesting special consideration, together with supporting documentation.
The Faculty Assessment Committee meets at the end of each session to consider applications for special consideration. The subject authority for each subject in question makes a recommendation on applications for special consideration to the Faculty Assessment Committee. However, the Faculty Assessment Committee makes its own decision on each application for special consideration. If granted special consideration, in most cases the student is required to undertake a supplementary assessment task. The applications for special consideration made by the complainant on 7 June 1988 and 9 November 1988 were considered by the Respondent but were not successful.59 The School of Biochemistry issued a notice dealing with various aspects of the final stages of the biochemistry subject. The notice related to the final examinations, medical deferred/additional assessment examination; ‘considerations’; viva voce examinations. It set out a summary timetable for the final examination, the submission of applications and the holding of viva voice examinations and medical deferred additional assessment examinations.
60 The Applicant considered that as a result of her application for special consideration, having regard to her performance, she should have been given a viva voce examination. She stated:
61 She subsequently submitted that the Assessment Committee which dealt with her application for special consideration is the body which considers whether a post is given.
“I should have been given a post viva voce. This is flagrant discrimination and demands my return to the medical course from which I should never have been excluded.”
62 On consideration of the material that has been submitted to the Tribunal it is the view of the Tribunal that the term “post” is used loosely to include both a deferred examination and an additional assessment examination. In relation to the Applicant, she was only eligible for an additional assessment as she sat for the examination, whereas a deferred examination is available where students “miss” the final examination for medical reasons. An application for special consideration, on the other hand, is available for students who sit the examination but seek special consideration in granting them a pass in the subject, based on medical reasons or other reasons. Viva voce examinations, according to the document issued by the School of Biochemistry, applies:
63 The distinction again is made between a student who has applied for a ‘consideration’ and a student who did not sit for the final examination for medical reasons. In the former situation, where the School of Biochemistry considers that the student’s performance may have been affected sufficiently to alter their grade, the student will be required for a viva voce examination. In the case of the Applicant, she was not required for a viva voce examination. Although there is no evidence to show whether or not the School of Biochemistry considered her to come within the category that her performance could be affected sufficiently to alter her grade to be granted a viva voce examination, the fact is that she did not receive a request to sit for such an examination.
“where a student has submitted documentation requesting a ‘consideration’ in relation to the final exam in biochemistry for medical students, and that student’s performance may have been effected sufficiently to alter their grade and the overall assessment, the student will be required for a viva voce examination. All students who did not sit for the final examination on Monday 28th November, for medical reasons, will automatically be required for a viva voce examination.”
64 This left the Applicant in the position where her application for special consideration, which was based on her medical condition, in the subject of bio-chemistry, was left to be considered, in accordance with the rules of the Respondent University relating to the assessment of students, by the Assessment Committee of the Faculty of Medicine. Relevantly the rules of the Respondent University provide as follows:
“4.4.2.4 FURTHER ASSESSMENT – SPECIAL CIRCUMSTANCES
Further assessment may be given when students, through illness or some other acceptable circumstances, have been prevented from taking one or more of the assessment or have been disadvantaged during the assessment. Regard shall be paid to the class and assignment work in the subject, the general performance in the year and to the significance of the particular assessment in compiling the composite mark or final grade.
The symbol WY shall be used to indicate that the result has been withheld pending further assessment because of illness or other acceptable circumstances after which any grade may be released.
FURTHER ASSESSMENT SHOULD NOT BE GRANTED WHEN A COMPOSITE MARK OF LESS THAT 50 ACCURATELY REFLECTS FAILURE TO ACHIEVE THE REQUIRED STANDARD OF KNOWLEDGE AND UNDERSTANDING OF, AND SKILLS IN, THE SUBJECT.
65 The Applicant was not notified that she was required for a viva voce examination. The Assessment Committee of the Faculty met on 15 December 1988. The Applicant tendered a copy of the first page of an Agenda of a committee meeting on that day. That first page of the Agenda does not contain the Agenda items to be considered by the Committee but it was produced to the Tribunal to demonstrate that a member of the committee was the Dean of the Faculty, Professor W E Glover. The relevance of Professor Glover’s presence in the meeting was, in the submissions of the Applicant, a material factor contributing to her allegation of discrimination. The front page of the Agenda document states that the purpose of the meeting would be to determine session 1 results and to review the mid-year performance of first year students. This is inconsistent with the date of the meeting on 15 December 1988 and it appears to the Tribunal that no relevance should be given to that statement as it is more likely to reflect a standard statement for these committee meetings, and on this occasion sufficient care was not taken to substitute a reference to determining session 2 results.
4.4.2.4 FAILURE
If the performance in a subject is below the minimum level of competence and the committee considers that the overall performance does not warrant concession, the result should be recorded as Failure (FL).”66 The Applicant received a notice from the Respondent University dated 20 December 1988 which advised her that her 1988 results infringed the rules governing re-enrolment [Rules 2 and 3 (2)]. She was requested to show cause why she should be allowed to re-enrol in 1989 in course 3800 in the subjects biochemistry and ICBS. The Applicant received no other communication from the University concerning her application for special consideration. It was clear to the Applicant that by the reference to Rule 2 and Rule 3, her application for special consideration was not successful. This is confirmed in the Affidavit of the Deputy Registrar.
67 The details of the rules referred to in the notice to the Applicant are contained in the rules headed “Restrictions on Students Re-Enrolling” and are in the following terms:
68 It is noted by the Tribunal that Rule 3(2) operates where “the committee of the faculty …. so decides on the basis of their academic record.”
Repeated Failure Rule
2. Students shall be required to show cause why they should be allowed to repeat a subject which they have failed more than once. Where the subject is prescribed as part of the course they shall also be required to show cause why they should be allowed to continue that course.
3. (1)…
(2) Students shall be required to show cause why they should be allowed to continue their course if the assessment committee of the faculty or board of studies so decides on the basis of their academic record.”69 The Applicant stated that in January 1989 she received advice by post from the Respondent University, setting out the results of the four medical subjects. A copy of that advice was not made available to the Tribunal. However, the academic record referred to by the Deputy Registrar sets out those results.
70 On 20 January 1989 the Applicant lodged with the Respondent University its form of ‘Application for Special Permission to Re-Enrol in 1989’. The Application related to the course 3800 in year 1 medicine. The Application supplied the following details of the circumstances which affected the Applicant’s performance in 1988:
71 The further medical certificate was a letter from Dr Leon Harris dated 19 January 1989 which stated:
“Thyroid hormone influences, wakefulness, alertness, responsiveness to various stimuli, memory and learning capacity (Berne & Levy, Physiology, Page 1029, Lines 29-30)
During 1988 I experienced thyroid hormone instability. I suffered severe physical symptoms which disappeared on reduction of dosage. These compounded the problems caused by the reduced efficiency of study. Details and medical documentation were submitted to the Registrar.
In October my TSH level was 11, indicating hypo-thyroidism at a critical period. Further medical certificate is enclosed.”72 In the form of Application under the hearing ‘Other Relevant Information’, the Applicant stated:
“I have to advise that I have attended the abovementioned since February 1988, for the management of hyper-thyroidism, post thyroidectomy for multi nodular goitre in August 1987. She has experience some difficulties during this time in stabilising her replacement therapy of thyroxin. Reflecting this has been the following thyroid stimulating hormone levels (TSH):
2/3/88 – TSH – 0.3miu/l (0.3-5.0)
22/10/88 – TSH – 11
She has experienced some constitutional symptoms associated with fatigability and poor concentration.”73 Again, in the form under the heading “Explanation of How the Above Problems will be overcome in 1989”, the Applicant referred to the same statement set out in the preceding paragraph.
“My aim is to proceed to second year.
There exists, within the University system, a process for ‘consideration’ and review of results allowing for medical problems.
My marks in biochemistry during session 2 should show dramatic improvement. I received 80% for each of the two assessed practicals and had an average of 62 for the tutorial tests. In theory I should have passed (by the biochemist’s own criteria where an average of 47 is considered to be indicative of a pass), especially as my last three tests showed marks of 7, 8 and 7.5 respectively.
I fear my progress, though diminished for medical reasons, justified the conceding of a pass in biochemistry and the waiving of a final exam pass requirement for ICBS to enable progression to second year. I am highly motivated, well, have made dramatic progress in thyroid hormone stabilisation and with the experience of 1988 behind me, I am well equipped to handle second year and my thyroid hormone levels.
Since having the operation my studying ability has improved dramatically. However, during the stabilisation process, these benefits were diminished.
With the year of academic study behind me, and thyroid hormone level re-adjustment to 100mg/day and the experience gained last year in the management of both, I am sure I can be confident of my future study success. May I remind you that my previously poor record can be attributed to the effects of a multi-nodular goitre, the precise nature of which went undiagnosed and I hope that this fact will be kept in mind so as not to assess my situation harshly and unjustly.
I feel I deserve the consideration I am seeking to allow progression to second year.”74 On 1 February 1989, the Executive Officer of the Faculty of Medicine completed the Respondent University’s form headed ‘Recommendation of Subject or Course Authority on Application for Special Permission to re-enrol in 1989 when student has infringed re-enrolment Rules”. The form makes provision for the Executive Officer to set out comments against certain questions listed on the form. In the case of the Applicant’s document completed by the Executive Officer, the following questions and answers were set out:
75 That form, in its lower sections, provides for recording of the progress of the Application through the various committees of the Respondent University.
“1. Do you have prior knowledge of the circumstances outlined in the Application?
To a limited extent.
2. Have you discussed the circumstances with the student?
No.
3. Do you think the circumstances substantially explain the student’s failure?
No.
4. Do you think they are likely to be resolved before March 1989?
Not her real problem of simply not having the capacity to pass.
5. Do you think the student has a reasonable chance of success if permitted to continue?
No.”76 The records in that part of the form show that on 13 February 1989 the Application was considered by the Faculty Admissions and Re-Enrolment Committee with the result that the Committee declined to re-admit the Applicant and resolved that she be excluded from the University for two years with no automatic re-admission. That decision was subsequently confirmed by the Admissions and Progressions Sub-Committee and the decision of that Committee was subsequently confirmed by the Appeal Committee. The reference to the Faculty Admissions and Re-Enrolment Committee and subsequently to the Admissions and Progressions Sub-Committee are automatic procedures provided in the rules of the Respondent University. The appeal to the Appeals Committee required the Applicant to apply for the appeal. The Applicant made application for an appeal by letter dated 1 March 1989. It is appropriate that the Tribunal set out the contents of that letter.
77 By letter dated 15 March 1989, the Respondent University advised the Applicant that the Appeal Committee of the Council upheld the decision of the Admissions & Progressions Sub-Committee and confirmed that the Applicant be excluded for 1989 and 1990 from the course 3800 Medicine and the subjects of Biochemistry and ICBS. The letter stated:
“I believe I have ‘shown cause’ as required. My lack of academic success of recent years was due to the adverse psychological effects of a toxic multi-nodular goitre with active sites (since removed) and subsequently to the psychological effects of an excess/deficiency of thyroid hormones while undergoing a stabilisation process.
A nodular goitre remains one of the great enigmas of thyroid disease. Scientific American quoting from studies of ………. Goitre and its variants ………… multi-nodular goitres …. Rev 3 40 1982).
I believe I have already explained this at length, and submitted satisfactory substantiating medical evidence.
Accordingly my lack of success has been beyond my control.
I believe the University in not accepting my ‘show cause’ has erred in its duty.
My results in 1988 were achieved under extreme difficulty especially due to my ever increasing … thyroid state during session II and the examination period when sent my marks down again contrary to …. Until then improving situation since session I.
The medication has been increased to a minimum level of 100mg per day taken as 75mg AM and 25mg PM. On this dosage I am comfortable and well and there is still some flexibility for adjustment which I can now manage myself but has taken an ….. amount of evaluation and research helping to arrive at this position.
I have shown how my studies have been adversely affected and how the problem has been overcome.
Surely it is time I was given credit for what I have achieved rather than being blamed for effects on study beyond my control.
I should not be denied the opportunity to prove my point and the University has an obligation to ensure its mechanism for …….. are applied to adjust my marks and .allow progression to second year
Once again, I re-iterate, that Dr Stiel (Endocrinologist) assured me that I would be able to continue my studies. Dosage has been a problem (See Dr Stiel’s certificate) but this has been successfully overcome, largely by my own efforts with some initial assistance by Doctors.
Please do not allow the harsh treatment of exclusion to be confirmed.
I have been treated as harshly as someone who did not pass any subjects at all and who has no attendant medical problems. I cannot be held responsible for what has been happening.
…… ignorance of a problem that is not well understood to stand in the path of my chosen career. However your personal feelings may prevail. I have a right to be at the University and to have consideration applied. By attending each and every exam (despite difficulties – sometimes extreme), I fulfilled my obligations. It is up to you to fulfil yours.
I am in a unique position to add to understanding of this problem.
I believe I have the right, under University policy, to proceed to second year which will resolve this problem once and for all in the most just and fair fashion.
You have the power and the responsibility to apply it justly and fairly and not by some set formula and certainly not to placate those who regard ……. Of marks as sympathy rather than as an acceptable University mechanism. The marks I achieved were under extraordinary odds. Please accept this. Only I knew what I endured. Don’t underestimate its severity through lack of comprehension and the deficiency of medical knowledge and please don’t deny me the opportunity to add to medical understanding and to continue my career.”
(The omissions in the quoted passages of the letter are due to poor quality of the copy produced to the Tribunal.)78 The effect of this requirement was to require the Applicant to re-compete with the current in-take of students for 1991 or subsequent years if the Applicant wished to re-apply for admission to the medical course.
“After the period of exclusion has expired, you may apply for re-admission to the Universities and College Admissions Centre.”
79 The Applicant tendered to the Tribunal, without objection by the Respondent, an Affidavit of Jessica Milne Davis. The Affidavit had been filed with the Tribunal by the Respondent. Dr Davis is a writer and education consultant and was a member of the Council elected in 1981 by the Graduates of the University and she was Deputy Chancellor of the University from 1981 to 1990. Dr Davis was a member of the Appeal Committee which determined the Applicant’s appeal. In her Affidavit, Dr Davis lists the documents, copies of which were forwarded to her prior to the meeting of the Appeal Committee held on 14 March 1989, at which the Applicant’s appeal was listed to be determined. The documents to be considered by the Appeal Committee comprised a copy of the Applicant’s academic record, previous submissions and medical certificates of the Applicant commencing with her request for special consideration dated 7 June 1988 and concluding with the document headed “Recommendation of Subject or Course Authority…’, referred to earlier. Dr Davis states that in addition, the student file relating to Ms Harding was available to the Appeal Committee. On the morning of 14 March 1989 Dr Davis states that she phoned Miss Tonkin to advise her that because of illness of her daughter she was unable to attend the Appeal Committee Meeting. She states that she told Miss Tonkin:
80 Dr Davis requested that Miss Tonkin convey those views to the Appeal Committee Meeting. Dr Davis further stated that to the best of her recollection, the material included in the Appeal Committee papers did not include any correspondence from Professor Glover. As a result of the inability of Dr Davis to attend the Appeal Committee meeting, the Applicant commenced proceedings in the Supreme Court of New South Wales seeking a declaration that the meeting of the Appeal Committee on 14 March 1989 was not effective and that the resolution of that Committee to uphold the decision of the Admissions & Progressions Sub-Committee was invalid. The Supreme Court proceedings were finally considered by the Court of Appeal in New South Wales which upheld the Applicant’s submissions on the invalidity of the determination of the Appeal Committee but, because of the lapse of time by which the Supreme Court proceedings were determined, the Court of Appeal decided that it was unable to effectively order the University to re-instate Ms Harding. The decision of the Court of Appeal was delivered on 17 December 1993. On 5 February 1999 the Applicant made an application to the Court of Appeal in New South Wales seeking re-consideration of her appeal. The Court of Appeal declined this application.
“While there is no evidence she has any special proven capacity in science subjects, I think the medical evidence should be taken into account. I think that the application should be given favourable consideration.”
81 In her Affidavit, the Deputy Registrar of the University set out a list of aggregate marks in the High School Certificate referrable to students who were admitted to the first year medical course at the Respondent University between 1984 and 1990. This shows that it was only in the year 1985 that an aggregate mark of 413 qualified as the minimum aggregate for admission into that course.
82 The Deputy Registrar incorporated into her Affidavit by reference, the student file held by the University in relation to the Applicant. Contained in that student file, is a copy of a form, in similar form to that completed by the Executive Officer of the Respondent University in relation to the Applicant’s Application to Re-Enrol in 1989, referable to the Applicant’s Application to Re-Enrol in 1987. In the form completed at that time by Mr R Maclean, the Administrative Officer of the Faculty of Medicine, under the provision for recommendation, Mr Maclean circled the provision that the student be excluded for two years and that the student not be granted automatic re-admission. Under the further provision for other comment, the following is stated:
83 The Tribunal notes that these comments are consistent with the comments made by the Executive Officer of the Faculty of Medicine in relation to Ms Harding’s application for re-enrolment in 1989.
“Many reasons given but none explained the severe failures and no indication that problem will be solved. Does not appear to be able to cope with the course.”
Examination of Complaints
84 The Tribunal has identified from the President’s report, the two items of complaint of unlawful discrimination which have been referred to the Tribunal for its inquiry. The examination of those complaints by raising as they do issues relating to physical impairment and intellectual impairment, must be dealt with in accordance with the provisions of the Act at the date of the complaints, ie, on 13 April 1989. The provisions of the Act relating to claims of unlawful discrimination on the ground of disability were substantially amended from 8 August 1994. Those later provisions are not relevant to the consideration of these complaints.85 Also on 8 August 1994, the Act was amended to include Section 4A which enables the Tribunal if there are two or more reasons for an act of unlawful discrimination and one of those reasons consists of unlawful discrimination, the act of unlawful discrimination is taken to be done for that reason. Prior to that amendment, the law required the Tribunal where those circumstances applied to have regard to what was the dominant purpose or reason for the act of unlawful discrimination and it is that latter test which the Tribunal has applied in considering the Applicant’s complaints.
86 The relevant provisions of the Act for the purpose of determining these complaints are set out as follows:
“4(1)… Intellectual Impairment ” in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s brain, whether arising from a condition subsisting at birth or from illness or injury;
“ Intellectually handicapped person ” means a person who, as a result of disabilities arising from intellectual impairment I, is substantially limited in one or more major life activities;
“ physical impairment ”, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment;
“ physically handicapped person ” means a person, who as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life;”
“PART 4A – DISCRIMINATION ON THE GROUND OF PHYSICAL IMPAIRMENT – Division 1 – General
Discrimination on the ground of physical impairment
49A (1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of:
87 In her submissions to the Tribunal, the Applicant relied on claims of both direct and indirect discrimination under the provisions of Section 49A(1) and (3) and Section 49B(1) and (2).
he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person.
(a) his physical impairment;
(b) a characteristic that appertains generally to persons having the same physical impairment as the physically handicapped person; or
(c) a characteristic that is generally imputed to persons having the same physical impairment as the physically handicapped person,
(3)…
(4) A person discriminates against a physically handicapped person on the ground of his physical impairment if he required the physically handicapped person to comply with a requirement or condition –Division 3 – Discrimination in other areas
(a) with which a substantially higher proportion of persons who are not physically handicapped persons comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the physically handicapped person does not or is not able to comply.”
Education
49J (1) It is unlawful for an educational authority to discriminate against a physically handicapped person on the ground of his physical impairment –(2) It is unlawful for an education authority to discriminate against a student who is a physically handicapped person on the ground of his physical impairment –
(a) by refusing or failing to accept his application for admission as a student; or
(b) in the terms on which it is prepared to admit him as a student.(3)….”
(a) by denying him access, or limiting his access, to any benefit provided by the educational authority; or
(b) by expelling him or subjecting him to any other detriment.
“Provision of Goods and Services
49K (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a physically handicapped person on the ground of his physical impairment –(2) Nothing in subsection (1) renders unlawful discrimination by a person against a physically handicapped person on the ground of his physical impairment if –
(a) by refusing to provide him with those goods or services;
or
(b) in the terms on which he provides him with those goods or services.“PART 4B – DISCRIMINATION ON THE GROUND OF INTELLECTUAL IMPAIRMENT
(a) it appears to be the first mentioned person, on such grounds as, having regard to the circumstances of the case, it was reasonably to rely, that the physically handicapped person would be unable, because of his physical impairment, to use the goods or services concerned; or
(b)….”
Division 1 – General
Discrimination on the ground of intellectual impairment
49P(1) A person discriminates against an intellectually handicapped person on the ground of his intellectual impairment if, on the ground of –he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not an intellectually handicapped person.
(a) his intellectual impairment;
(b) a characteristic that appertains generally to persons having the same intellectual impairment as the intellectually handicapped person; or
(c) a characteristic that is generally imputed to persons having the same intellectual impairment as the intellectually handicapped person,
(2) A person discriminates against an intellectually handicapped person on the ground of his intellectual impairment if he requires the intellectually handicapped person to comply with a requirement or condition–Division 3 – Discrimination in other Areas
(a) with which a substantially higher proportion of person who are not intellectually handicapped persons comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the intellectually handicapped person does not or is not able to comply.”
Education
49Y(1) It is unlawful for an education authority to discriminate against an intellectually handicapped person on the ground of his intellectual impairment–(2) It is unlawful for an educational authority to discriminate against a student who is an intellectually handicapped person on the ground of his intellectual impairment–
(a) by refusing or failing to accept his application for admission as a student; or
(b) in the terms on which it is prepared to admit him as a student.(3)….”
(a) by denying him access, or limiting his access, to any benefit provided by the educational authority; or
(b) by expelling him or subjecting him to any other detriment.
“Provision of Goods and Services
49Z (1) It is unlawful for a person who provides, for payment or not, good and services to discriminate against an intellectually handicapped person on the ground of his intellectual impairment –(2)….”
(a) by refusing to provide him with those goods and services; or
(b) in the terms on which he provides him with those goods or services.Status of the Applicant as a Physically Handicapped Person and an Intellectually Handicapped Person
88 The Applicant submitted that her circumstances and her medical condition at the times at which she alleges she was discriminated against by the Respondent, classified her within the definitions of both a physically handicapped person and an intellectually handicapped person. The Respondent submitted that the medical circumstances of the Applicant did not bring her within those definitions.89 As the Tribunal has observed, the status of the medical evidence was not comprehensive. No doctor or other medical expert was called by either party. The Tribunal is required to discern the nature of the Applicant’s medical condition from correspondence and from the Applicant’s evidence. The Applicant was not cross examined in relation to her evidence nor were any objections made to the Tribunal having access to the medical correspondence. The Applicant stated that she considered that her medical status was unique. It is not clear to the Tribunal on what standard the Applicant has based her view. The Applicant stated that her medical problems stem from her multi-nodular goitre which was extracted in a thyroidectomy carried out by Professor Reeve on 21 August 1987. This circumstance is admitted by the Respondent. The Applicant states that prior to the operation she was receiving thyroxin treatment and she convinced the Appeal Committee of the Respondent University in 1988 that those circumstances justified the University in over-riding its decision to exclude her from re-enrolling in the medical course in 1988 and the University agreed to grant her leave of absence in 1987 and re-admit her into the medical course in 1988.
90 The Applicant stated that after the thyroidectomy and during the latter part of 1987 and during 1988, her medical condition, arising from the thyroidectomy, required her to be placed on a program of thyroxin but that the dosages prescribed caused her to vary between a state of hyper-thyroidism and hypo-thyroidism. The effects of this condition on her ability to study and to concentrate on examinations is described by her in her applications to the University for special consideration and to show cause against her exclusion from the medical course. These descriptions are contained in the preceding paragraphs in this decision. The Applicant proceeded to state that the difficulties experienced by her medical advisers in finding the right dosage of thyroxin to properly stabilise her hyper and hypo thyroidism, caused her eventually to experiment, on her own judgment, with the dosage and that it was by her own efforts in this regard that finally she established the correct dosage which enabled her in 1989 in her application to show cause against her exclusion, with confidence, to state that she could cope with the course.
91 In her evidence, the Applicant also stated that unbeknown to her or her medical advisers at that time, but subsequently it was established, that the uniqueness of her condition was caused by re-growth of glands in her goitre. This medical evidence and the statements as to the effect of her condition on her ability to study and the effect on her in relation to her examination, was not challenged by the Respondent.
92 The Tribunal is not able, from the evidence, to comment on the Applicant’s claim of uniqueness in regard to her medical circumstances. However, the Tribunal is required to make a determination as to whether those medical circumstances bring her within the definitions of impairment and handicap that are set out in the definition provisions of the Act.
93 Dealing first with the application to the Applicant of the definition of ‘physical impairment ‘ and ‘physically handicapped person’, the Tribunal on balance considers that the evidence is sufficient to bring the Applicant within those definitions. The decision of Bogie v University of Western Sydney [1990] EOC 92-313, established that the phrase ‘normal structure and functioning’ in the definition of physical impairment and in the definition of intellectual impairment, is a hendiadys – a single idea expressed in two words joined by the conjunction ‘and’. The result is that any defect in either the normal structure or the normal functioning of the person’s body (in the case of physical impairment) or in the normal structure or normal functioning of the brain (in the definition of intellectual impairment), will constitute a defect in its normal structure and functioning. This decision applied the decision to the same effect in Kitt v Tourism Commission [1987] EOC 92-196. It is the view of the Tribunal that the medical condition of the Applicant is sufficient to demonstrate that the Applicant at the relevant times, suffered from a disturbance in the normal functioning of her body, so that the definition of ‘physical impairment’ in the Act applies to her circumstances.
94 In considering whether the Applicant was a ‘physically handicapped person’ within the definition, it is necessary to consider whether her physical impairment, having regard to any community attitudes relating to persons having the same physical impairment, and to the physical environment, limited the Applicant’s opportunities to enjoy a full and active life. The Tribunal is satisfied that the physical impairment of the Applicant limited her opportunities to successfully complete her first year medical course at the Respondent University. Looked at subjectively, this limited her opportunities to enjoy what she considered was her choice of a full and active life. In considering whether the conclusion that the Applicant’s limitation on her opportunities to enjoy a full and active life came within community attitudes relating to persons with the same physical impairment, the Tribunal adopts the view of the Tribunal in the Bogie inquiry. At Page 78141, the Tribunal stated:
95 Later at Page 78144, the Tribunal said:
“The plain intent of the legislative definition is, thus, to judge the question of limitation of opportunities, firstly, by reference to an objectively, ascertained and non-individual-specific impairment. If such an impairment relevantly limits opportunities, then the person is physically handicapped, unless communities attitudes would deny such a link between such an impairment and the relevant limitations. On the other hand, if such an impairment, would not, of itself, have that result, the effect of taking into account relevant community attitudes and/or the physical environment may be sufficient, cumulative with the objective impairment, to result in a relevant limitation of opportunities.”
96 In this inquiry no specific evidence was brought before the Tribunal as to a person suffering physical impairment of the nature of the Applicant’s condition to assist in determining whether there was a limitation in the opportunities to enjoy a full and active life. Having regard to the decision in the case of Bogie and also to the remarks in the decision in the Kitt case, the Tribunal is satisfied that the community would regard the Applicant’s physical impairment, standing alone, with the adverse effects that the Applicant describes she suffered as a consequence of her condition, as a limitation in her opportunities to enjoy a full and active life. The community attitudes to a person suffering the consequences of adjustment post thyroidectomy to experimental dosages of thyroxin would expect the person to be restricted generally in the person’s normal activities, and subjectively in the case of the Applicant, would expect her to have difficulties in performing adequately in the medical course.
“The Tribunal finds that her physical impairment, standing alone, limits her opportunities to enjoy a full and active life. It is by no means a trivial limitation on those opportunities to have to turn one’ head further to the left than would normally be required whenever the exigencies of daily living require (no doubt frequently) observation of any situation to one’s left. An expression of a preference for sight in both eyes is merely an understated reaction to the continuing sense of loss which no amount of adaptation can entirely supplement.
When those matters are combined with the community attitudes, the finding is confirmed.97 The only suggestion in the evidence that her condition may not have the debilitating consequences that she described was contained in what was called the correspondence of Professor Glover, the Dean of the Faculty of Medicine during the relevant periods of the complaints.
98 It is not clear to the Tribunal from the evidence the extent to which Professor Glover’s view of the Applicant’s debilitating condition, was influential in the decisions taken in relation to her application for special consideration and in her application for re-enrolment. Professor Glover was a member of the Assessment Committee which considered her application for special condition in December 1988. However, he was only one of a number of members of that committee. No evidence was put before the Tribunal as to the deliberations that took place at that committee meeting. In the absence of specific evidence which would establish the contrary, the Tribunal considers that the Applicant has not established that Professor Glover’s views had a material effect on the decisions taken by that committee in relation to her application. Later correspondence from Professor Glover confirms that he maintained his view that the Applicant’s medical condition would not have materially contributed to her inadequate performance in the medical course in 1986 or in 1988.
99 The Applicant takes strong objection to the views expressed by Professor Glover in this correspondence and she submitted that his views were influential in the adverse decisions taken against her in December 1988 and February and March 1989. The Applicant could not support the view that she held other than to require the Tribunal from the correspondence of Professor Glover, to infer that his view of her medical condition coming from a person who was the Dean of the Faculty would have had a substantial influence on the decisions the subject of her complaints. The Tribunal is not able to draw the inferences which the Applicant seeks, merely from the contents of Professor Glover’s letters without evidence to demonstrate that either the contents of those letters or the attitude of Professor Glover about the effect of the medical condition of the Applicant, influenced the decisions that were taken against her applications.
100 The view expressed by Professor Glover in his letters is the only evidence before the Tribunal which supports a submission that the evidence of the Applicant about her medical circumstances, supported by correspondence from her medical advisers, should not be accepted by the Tribunal in preference to the views of Professor Glover. The Tribunal is reinforced in its assessment of Professor Glover’s correspondence by the absence of Professor Glover as a witness to support his views and to be subjected to cross-examination in relation to those views.
101 In summary, the Tribunal finds that the evidence produced to the Tribunal is sufficient to establish that the Applicant, at the relevant times relating to her complaints, suffered a physical impairment and was a physically handicapped person within the terms of those definitions in the Act.
102 In relation to the application of the definitions of ‘intellectual impairment’ and ‘intellectually handicapped person’ to the Applicant, the Tribunal is not satisfied that the Applicant has established that the medical evidence nor her description of the effects of her medical condition, show that those circumstances affected the normal structure or functioning of her brain.
103 The Applicant’s evidence of the lack of concentration and her lack of ability to study goes some way to show that there may have been a disturbance in the functioning of her brain but in the absence of any technical evidence to demonstrate that the nature of those effects in the structure or functioning of her brain, the Tribunal is not satisfied that the generality of the evidence establishes that the physical effects which she described were associated in the relevant medical sense with a disturbance of the structural functioning of her brain. The Tribunal, in addition, is not satisfied that any disability of the Applicant associated with the manifestations of the adverse effects on her as she described, substantially limited her in one or more major life activities. If assessed subjectively as the decision in Kitt suggests should be the test, no doubt the Applicant considered that the adverse result of her condition prevented her from continuing in the medical course. The Tribunal however is not convinced that it is correct to make such an assessment on a subjective basis for the purposes of determining the application of the definition. In its decision in Bogie v University of Western Sydney at Page 78143 [supra] the Tribunal observed:
104 This Tribunal would share the same hesitation about adopting a subjective test to the words in the definition ‘is substantially limited in one or more major life activities’. This Tribunal would prefer to examine the matter objectively. There is no doubt that the Applicant considers that she has been substantially limited in a major life activity. However, the Tribunal is not satisfied that even if the Applicant were considered to be intellectually impaired that the impairment substantially limited her in a major life activity. No evidence was before the Tribunal which would assist it in making an objective assessment whether the Applicant’s medical condition, assuming that it constituted intellectual impairment, substantially limited her in one or more major life activities.
“As presently advised, the Tribunal would have some diffidence about lending its whole-hearted concurrence to some of the remarks in Kitt at page 76882 concerning the relevance of subjective considerations on the part of the person with the impairment. It is, however, not necessary for the Tribunal’s present decision to say any more about those remarks in the present case.”
105 In summary, the Tribunal is not satisfied that the evidence enables it to hold that at the relevant times the Applicant was intellectually impaired or that she was an intellectually handicapped person.
106 The Tribunal now proceeds to examine the Applicant’s claims of unlawful discrimination based on the ground of her physical impairment, not on the ground of her intellectual impairment.
Claim of Unlawful Indirect Discrimination
107 The Tribunal has experienced difficulty in discerning from the evidence and from the submissions of the Applicant, the precise perameters of her claim of indirect discrimination. The only occasion on which the Applicant appeared to address the formulation of her proposition of a claim of indirect discrimination was in her written submission where in the context of discussing both physical impairment and intellectual impairment, she stated:
108 In the context of the circumstances of this complaint, the Tribunal discerns that the Applicant relies, in establishing indirect discrimination within the terms of Section 49A(3), on the following elements:
“a substantially high proportion of medical students who were not physically and intellectually handicapped persons were able to comply with the requirement to pass exams and to meet the requirements for supplementary assessment and to qualify for concessions by the faculty, provenly qualifying for these benefits was not reasonable in the circumstances given the attitudes of the Dean and supposedly the Biochemists, given the circumstances of my case and taking into account University errors and for these reasons, if I did not and was not able to comply with this discrimination. However, there is nothing to suggest that I did not meet all the relevant criteria and Gordon Rees’ Affidavit states that I would be given consideration for the disadvantage I suffered while the medical problem existed and for the effects on my examination performance.
It is hard to conceive of any student with consideration on due to medical being treated the same way as myself. The discrimination is glaringly obvious.”109 Before examining each of these elements, it is pertinent to have regard to features of the application of Section 49A(3), which apply to the Applicant’s complaint and to contrast those features with the provisions of Section 49A(1), and to contrast Section 49A(3) with the current corresponding provision of the Act, Section 49B(1)(a). The present provision of the Act relating to indirect discrimination towards a physically handicapped person, Section 49B(1)(a), requires as an element in a finding of indirect discrimination that the discrimination occurred, in a causal sense, on the ground of disability. Section 49A(3), the provision that applies to this complaint, does not require such a causal connection to the aggrieved handicapped person. Under that Section, if the requirement for the handicapped person to comply with a requirement or condition which otherwise meets the other elements in the Section is present, the discrimination on the ground of the person’s physical impairment, is established. This can be contrasted with the requirements of Section 49A(1) (direct discrimination) and the current provision of Section 49B(1)(a) of the current Act, both of which in order to establish discrimination, require a finding that the discriminatory acts were causally connected to the aggrieved persons physical impairment.
(1) That she was required by the Respondent to comply with a requirement that she be able to pass the examinations in the first year of the medical course in 1988;
(2) that she be required by the University to meet the University standards for the grant to her of a supplementary assessment in the first year Biochemistry course in 1988;
(3) That she be required by the Respondent to meet its qualifications for the granting of concessions by applicants to show cause why they should not be excluded from the first year medical course in 1989;
(4) That each of these requirements was not reasonable having regard to the attitude of the Dean of the Faculty of Medicine, Professor Glover; to the attitude of the academic supervisors towards the Applicant in the Department of Biochemistry in 1988; taking into account what the Applicant describes as the errors of the University, in the manner in which the Appeal Committee of the University dealt with her appeal relating to her application to show cause, in March 1989;
(5) A substantial proportion of students who were not physically handicapped complied or were able to comply with these requirements;
(6) The Applicant, being a handicapped person, was not able to comply with those requirements.110 In examining the complaint of indirect discrimination by the Applicant, the Tribunal is not obliged, to determine whether there was a causal connection between her physical impairment and the requirement of the Respondent that she be able to comply in the circumstances, with the requirements of the Respondent listed above in Items (1), (2) and (3).
111 If the Applicant can satisfy the Tribunal that the elements of her claim of indirect discrimination, are established, it follows axiomatically, under Section 49A(3) that the discrimination occurred on the ground of her physical impairment.
112 The Tribunal has accordingly examined the evidence to discern whether the Applicant has established the elements which would constitute indirect discrimination of her by the Respondent.
113 In relation to Item (1), ie, that there was a requirement of the University that the Applicant was required to pass its examinations in 1988 in the first year medical course, the Tribunal is satisfied that such a requirement did and indeed should apply to the Applicant as it did to all other students. There is no evidence before the Tribunal, and nor would the Tribunal expect that there would be evidence capable of being produced, to show that such a requirement of the Respondent was not reasonable in the circumstances of the Applicant’s situation. The Tribunal accordingly rejects that the requirement to pass examinations could, in the circumstances, lead to establishing that the University had indirectly discriminated against the Applicant.
114 Item (2) requires the Tribunal to find that the Respondent University required the Applicant to meet its standards in the course of Biochemistry for first year students in 1988 to enable the University to grant the Applicant a concessional supplementary assessment in that subject to enable her to pass the subject in that year. The Tribunal would need to determine that such a requirement was unreasonable and that a substantially higher proportion of students who were not physically impaired were able to comply with the requirements. The Applicant produced no evidence to the Tribunal to demonstrate the nature of the requirements or standards that were applied in relation to the Applicant by the Medical Faculty’s Assessment Committee that considered her application for concessional assessment. The Applicant relied on her statements concerning the adverse treatment that she alleged she received from the Supervisors in the Department of Biochemistry in 1988 and especially in the later part of that year, and she relied on the correspondence from Professor Glover, the Dean of the Faculty of Medicine to demonstrate that Professor Glover had taken an adverse view of the extent of the affectation on the applicant of her medical condition and that he did not accept that her medical condition had a material impact on her ability to study and to pass the examinations. The letters written by Professor Glover were not directed to the Assessment Committee. One letter was written to the University Pro Vice Chancellor by way of protest about the Appeal Committee of the University in 1987 reconsidering its decision to not allow the Applicant to be re-enrolled in the medical course at that time. Two subsequent letters were written by Professor Glover to the Pro Vice Chancellor in which Professor Glover expressed his opinion of the Applicant’s circumstances, in unfavourable terms, relating to her later attempts in 1989 to be re-enrolled in the medical course. The Tribunal considers that those letters by Professor Glover illustrate that he, throughout the relevant period for the purposes of her complaints, was the Dean of the Faculty and held an adverse attitude to the Applicant’s circumstances and was not sympathetic to her claims of adverse impacts of her medical condition on her ability to pass the examinations. The evidence before the Tribunal, however, falls short of satisfying the Tribunal that the opinion held by the Dean of the Faculty of Medicine had a material influence on the decisions taken adversely to the Applicant by the Assessment Committee of the faculty when it dealt with her application for special consideration in December 1988, or on the decision of the Appeal Committee which considered her appeal against her exclusion from the medical course in 1989 and 1990. Professor Glover was a member of the Assessment Committee of the Faculty which dealt with her application for special consideration although he was only one of a number of members of that Committee. Professor Glover was not a member of the Appeal Committee that considered the Applicant’s appeal in 1989.
115 The Applicant requires the Tribunal to infer from her statements about the unhelpful and antagonistic attitude directed towards her by the academic supervisors in the Biochemistry course in 1988 that that attitude was reflected in the decision of the Assessment Committee of the Faculty which did not grant her application for special assessment in the Biochemistry subject. No evidence was adduced to the Tribunal of the considerations that were in fact given by the Assessment Committee when it came to its decision about the Applicant's application. The Minutes of the meeting of the Committee were not produced to the Tribunal. Although the Applicant’s statements about her view of the attitude towards her by the academic members of the Biochemistry school, were not challenged by contradictory evidence and to that extent, the Applicant’s statements were accepted by the Tribunal, the Tribunal is not justified on the evidence to come to the positive finding that the reason for the rejection of her application for special consideration was the adverse attitude taken towards her by the academic members of the school of Biochemistry. The evidence falls far short of enabling the Tribunal to reach such a conclusion.
116 The Tribunal finds that this element in the claim of the Applicant has not been established.
117 Item 3 of the Applicant’s submission relies on establishing that there was a requirement of the Respondent that the Applicant qualify within the University standards, for the concession by the Faculty that, despite her academic record, she be allowed to enrol in second year of the medical course in 1989. This was the show cause application that was considered by two Committees of the University and finally by the University’s Appeal Committee. The Applicant especially relies on the failure of the Appeal Committee to be properly constituted on the day on which it considered her appeal. The absence of its member, Dr Milner Davis, was held by the Court of Appeal in New South Wales to render the decisions of the Committee invalid and, as stated earlier, by the time the matter was dealt with by that Court, it was unable to make an effective order to re-instate the Applicant into the 1989 medical course at the Respondent University. In relation to this requirement, the Applicant does not appear to rely on the incorrect procedure adopted by the Appeal Committee but relies on the failure of the Appeal Committee to grant to her what she describes as the necessary concessions to enable her show cause application to be granted and for her to be enrolled into the first year medical course at the Respondent University. The Applicant’s submission does not specify the nature of the concession but it is taken to mean whatever favourable consideration that was necessary to be granted to the Applicant having regard to her physical impairment, that would enable the Appeal Committee to find in her favour. Dr Milne Davis stated that she would have granted the Application. She was one of the three member committee. Again, no evidence was placed before the Tribunal as to the Appeal Committee’s deliberations nor were the minutes of the Appeal Committee placed before the Tribunal. The decision of the Appeal Committee was unfavourable to the Applicant and in that sense it can be taken that the Appeal Committee declined to grant any concession that would enable the Applicant to be enrolled in its second year medical course in 1989 or 1990.
118 There was no evidence before the Tribunal as to the number of students who, like the Applicant, were required to show cause why they should be excluded from a course of the University in 1989 or 1990, and whose application to show cause were favourably considered by the Appeal Committee and who were allowed by that Committee to re-enrol in either 1989 or 1990, or alternatively, students who made application to show cause why they should not be enrolled in those years and whose applications were not rejected on terms as harsh as the terms on which the Applicant’s application was rejected, namely, that she be excluded from the course for two years without automatic re-admission and with re-admission subject to competing for a place with the current year’s intake. Under the rules of the Respondent University called ‘Restrictions on Students Re-Enrolling’, there were five classifications that could be applied to students who did not receive special permission to re-enrol, as to the terms on which they would be excluded from a course at the Respondent University.
119 No evidence was placed before the Tribunal as to whether the Respondent University or the Faculty of Medicine at the Respondent University had standards which it applied when considering applications to show cause against the exclusion of a student. The determination of the Committees which considered these applications, appears to be discretionary, and the Committees have a choice to allow an application and to re-enrol a student, or if it rejects an application, to choose between the number of alternative categories for exclusion. It is not possible, on the evidence, for the Tribunal to determine what requirements of the Respondent University were applied to the Applicant for her to qualify for concessional consideration which she claims that she was entitled to, in her application to show cause against her exclusion by the Respondent University. In the view of the Tribunal, the evidence is insufficient to enable the Tribunal to determine what requirements or standards the various committees of the University applied in considering the application of the Applicant to show cause against her exclusion from the medical course in 1989 and 1990. The Tribunal is unable to consider whether the University applied requirements or standards which were not reasonable or to determine whether the requirements or standards were able to be complied with by a substantially higher proportion of students who were not physically handicapped.
120 The Applicant’s claims of indirect discrimination lack the necessary evidentiary support to enable the Tribunal to reach a conclusion favourable to the Applicant. The Applicant relies on the evidence of a general nature, mainly of background material, from which the Applicant seeks the Tribunal to draw inferences that the Respondent University indirectly discriminated against her by failing to duly recognise the extent of her medical condition and its impact on her ability to pass the University’s examinations in the first year medical course in 1988 and the University failed to make the necessary concessions to her to enable her to be granted a pass in the subjects in which she failed. It is the view of the Tribunal that the evidence adduced by the Applicant is insufficient to enable the Tribunal to make the inferences that the Applicant seeks, in order to establish her complaint of indirect discrimination.
Claim of Direct Discrimination
121 As with the claims of indirect discrimination, the Applicant failed to formulate, or address, her complaints of direct discrimination in the terms of Section 49A(1) of the Act. In deference to her lack of legal representation, the Tribunal has discerned from the evidence and the submissions of the Applicant, that her claims of direct discrimination on the ground of her physical impairment, refer to the Respondent University treating her less favourably than in the same or similar circumstances, or in circumstances which were not materially different, the University treated a student who was not physically handicapped:122 The Tribunal has already canvassed the circumstances relating to the application for special consideration and the application to show cause, and the processes by which those applications were dealt with by the Respondent University. The fact that both applications were unsuccessful would constitute less favourable treatment of the Applicant if by a comparison with the way in which applications of that nature were dealt with by the Respondent University in the same circumstances or circumstances that were not materially different, in relation to a student who was not physically handicapped, the latter applications were granted or more favourably treated. It is necessary to examine each application of the Applicant and the way in which it was dealt with by the Respondent University to determine whether in making the necessary comparison, discrimination occurred.
(i) by failing in December 1988 to grant her application for special consideration because of her medical condition, and to grant her a pass in the subject Biochemistry for medical students;
(ii) by the failure of the Appeal Committee of the Respondent University to grant her application to show cause why she should be allowed to re-enrol in the first year of the medical course of the Respondent University in 1989 and that by the rejection of her application on the harshest terms, ie, by excluding her from the Respondent University for two years without automatic re-admission and with re-admission subject to competing for a place with the current year’s intake.123 The Applicant bears the onus of proving to the satisfaction of the Tribunal that on the balance of probability, the Respondent University treated students who were not physically handicapped and who had made similar applications for special consideration or to show cause, more favourably, by granting their applications or rejecting their applications for re-enrolment on terms more favourable than the terms applied in rejecting the applicant’s application.
124 Some debate took place with Counsel for the Respondent University as to whether the appropriate comparator was between the Applicant on the one hand and a student who had made a similar application and who was not physically handicapped but whose application was based on other medical grounds, or with a student who was not physically handicapped but had made similar applications on non-medical grounds, or with a student who was not physically handicapped and who had passed the examinations without the need to make application for special consideration, or was allowed to re-enrol without having to show cause. It is the view of the Tribunal that the proper comparator is between the Applicant who made her applications based on medical grounds arising out of her physical impairment, and a student who had made similar applications to those of the Applicant either on medical grounds or on other grounds and who had been granted an additional assessment or whose application to show cause had been granted and who was enabled to re-enrol in 1989 or was rejected on less restrictive terms.
125 In reaching its conclusion as to the appropriate comparison, the Tribunal has had regard to the decision of the Federal Court of Australia in Commonwealth of Australia v Humphries & Ors [1998] EOC 92-951 and to the remarks of Samuels J A in Jamal v Secretary Dept of Health [1998] NSWLR 225 at 264. In the decision in Commonwealth of Australia v Humphries & Ors, Kiefel J, considering a complaint by a person with visual impairment, stated:
126 In Jamal v Secretary, Department of Health & Anor , the Court of Appeal considered an appeal relating to a complaint of discrimination on the ground of physical impairment by a doctor who suffered from a visual disability. In this judgment, Samuels JA referred to the difficulty of determining the appropriate comparator in the case of a claim of physical impairment. His Honour said:
“The comparison in this case must be between Mrs H., with her needs to enable her to function as an ASOI and ASOIs who are not disabled, but who have reasonable needs for equipment which would enable them to carry out their duties.
….
The Commonwealth’s submission relied upon Section 5(2)[of the Disability Discrimination Act 1992 (Commonwealth)] which, it submitted, meant that a disabled person’s requirement for different facilities or equipment rendered their circumstances “materially different” from other workers. So understood, there could not be a proper comparison of treatment for the purposes of the section.”
127 This Tribunal, differently constituted, applied the comments of Samuels JA in its decision in Taikato & Anor v Western Sydney Area Health Service [1999] NSWADT 52 at para 97 :
“Part IVA deals with discrimination on the ground of physical impairment. Hence its provisions assume that the physically handicapped candidate for employment is in all respects other than her physical impairment, qualified for the job. Otherwise it would be impossible for the employer to treat her less favourably on the ground of her physical impairment, than another qualified person who was not fully handicapped. Hence the phrase ‘in the same circumstances, or in circumstances which are not materially different’ must be read as containing the same assumption.’
128 The Tribunal accordingly, has approached the question of direct discrimination of the Applicant, by examining whether her applications were treated by the Respondent University differently to the way in which the University treated similar applications by persons who were not physically handicapped. The evidence before the Tribunal to demonstrate that the Respondent University treated applications by persons who were not physically handicapped more favourably than the treatment of the Applicant’s applications, is unsatisfactory. The Applicant sought to compare the treatment by the Respondent University of her application for special consideration in December 1988, with the way in which the Respondent University dealt with applications for consideration, firstly by three students who did not sit the final examination in biochemistry, for medical reasons, and secondly with a number of students who the Applicant claimed had been given consideration. The Applicant acknowledged that she had no evidence to support her description of the situation of these students other than ‘her word for it’ and she acknowledged that she was not claiming that every student who applied for special consideration was successful. The only supporting material for the claims of the Applicant as to how the application for special consideration of other students were treated by the Respondent University, was a photocopy of a sheet which the Applicant stated was part of a schedule published by the University of the results of students sitting for the first year medical course in 1988. The page out of that schedule which was produced to the Tribunal contained the results relating to the Applicant and the results relating to nine other students. The Schedule indicates that two of the other students made application for consideration, and interpreting the information on the schedule in the manner described by the Applicant, those two students were given favourable consideration and were granted passes or credits in the subjects for which they made application for special consideration. The Applicant did not adduce evidence to the Tribunal as to the circumstances relating to the application for special consideration by those two students. The Tribunal is unable to determine whether those applications were based on medical reasons or other reasons, or whether those students could be classified as not physically handicapped or the academic record of those students either generally or in relation to the specific subjects for which they sought special consideration. Applying the principle that the appropriate comparison is to be made between the Applicant and a student who made an application for special consideration, being a student who was not physically handicapped, the evidence does not enable the Tribunal to determine whether the two students who received favourable consideration were physically handicapped or were not physically handicapped persons. The Tribunal is therefore unable to make the necessary comparison that it is obliged to make under this section of the Act if it is to find that the Respondent University treated the Applicant less favourably than it treated a person who was not physically handicapped.
“There is a further reason, in the view of the Tribunal, for rejecting the argument of the Respondent, that a comparison is not appropriate to be made between Mrs Taikato and other patients who are not affected by Hepatitis C, because of the infected nature of Mrs Taikato’s eggs. To accept such a proposition would be tantamount to accepting that in relation to handicapped persons, they could never qualify under Section 49A(1) to bring a claim of discrimination because in each case the basis of their impairment would defeat their claim. They would fail on the comparison required by this section, for their circumstances to be similar to the circumstances of a non-handicapped person ….. The position was referred to by Samuels JA in Jamal v Secretary of Department of Health 1998 NSWLR 252 at 264”
129 Moving to the second aspect of the claim of direct discrimination, the Applicant alleges that she was discriminated against by the Respondent University when the two committees of the University which considered her application to show cause against her exclusion from the Respondent, failed to grant her application and subsequently when the Appeal Committee upheld the decision of the other Committees. Factors which the Applicant alleged demonstrates that she was less favourably treated in that process is the failure of the Appeal Committee to have regard to a letter written by Professor Reeve on 3 March 1989 and which the Applicant alleged was not referred by the Faculty to the Appeal Committee when it sat to consider her appeal. This is supported by the Affidavit of Dr Milne Davis who attaches to her Affidavit copies of the material that was submitted to her for consideration in relation to the Appeal and which did not contain the letter from Professor Reeve. The relevance of Professor Reeve’s letter, as alleged by the Applicant, is that it stated in clear terms that there was a connection between the Applicant’s thyroid condition and her lack of concentration and ability to study during 1988. The Applicant also refers in this context to the invalid resolution of the Appeal Committee in rejecting the appeal on her application, the invalidity having been subsequently determined by the Court of Appeal in the Supreme Court of New South Wales in its decision of 17 December 1993.
130 Those two items of irregularity in the processes of the Appeal Committee, support, in the view of the Tribunal, the Applicant’s claim that her application to show cause and the subsequent appeal received less favourable treatment than the Appeal Committee would have shown to an appeal brought against the refusal of an application to show cause, by a student who was not physically handicapped. There was no evidence of the treatment by the Committees of the University, including the Appeal Committee, of a similar show cause application by a student who is not physically handicapped. In the circumstances the Tribunal is required to examine whether an appeal on a show cause application by a student who was not physically handicapped would have been treated by the Appeal Committee on more favourable terms. Clearly, the issue of the failure to consider a letter relating to the medical circumstances of the Applicant would not have arisen in relation to a student who was not physically handicapped.
131 If, the Appeal Committee had considered an appeal on a show cause application by a person who was not physically handicapped, at the same meeting that it considered the application by the Applicant or at any other meeting of the Appeal Committee when one or more of the three members was not able to be present, the decision in relation to the application of the student who was not physically handicapped, also would have been invalid, whether that decision was favourable or not favourable to the student.
132 If at the meeting of the Appeal Committee that considered the Applicant’s appeal, the Appeal Committee in relation to an application of a student who was not physically handicapped upheld the student’s appeal and notwithstanding that the decision technically was invalid, on the evidence, it is likely that the University would have proceed with that student’s enrolment in 1989 as the Respondent University would have assumed, as it did with the Applicant’s decision, that the decision of the Appeal Committee was effective and should be applied. The result of this analysis is that on a notional basis, the Tribunal is entitled to have regard to the discrimination that operated to the detriment of the Applicant when the Respondent University invalidly decided her appeal and subsequently gave effect to that Appeal by advising her that she was not entitled to seek re-enrolment at the Respondent University until 1991 when she would be obliged to compete for a place with the current year’s intake of students.
133 In coming to this conclusion, the Tribunal has had regard to the absence of evidence by the Respondent University which may have refuted the notional comparison adopted by the Tribunal. In fairness to the Respondent University and its legal representatives, it should be pointed out that the Applicant did not specifically refer to the application of this notional concept in the evidence that she presented to the Tribunal. Nor did the Applicant subsequently specifically make a submission, which adopted this proposition. However, consistent with the approach adopted by the Tribunal in its attempt to extract the most advantageous position for the Applicant from her presentation of material to the Tribunal, the Tribunal considers that it is appropriate that it should examine this aspect of the complaint.
134 The finding by the Tribunal that the imposition by the Respondent on the Applicant of its invalid decision in rejecting her appeal against her exclusion from the University when compared, notionally, with the University’s application of a decision made by the Appeal Committee, invalidly, but nonetheless favourably, towards a student who is not physically handicapped, does not itself constitute discrimination under Section 49A(1) unless the Tribunal is satisfied that the imposition on the Applicant of the invalid decision with the consequent exclusion of the Applicant from the University on the most unfavourable terms, was causally connected with her physical impairment. No matter how severe the consequences on the Applicant of the application of the unfair treatment, it does not constitute discrimination unless the less favourable treatment occurred on the ground of the Applicant’s physical impairment. There was no evidence put before the Tribunal which would enable the Tribunal to determine the reasons which operated in the minds of the two members of the Appeal Committee who met to decide the Appeal. The Applicant supported her appeal by reference to her medical condition and the adverse affect of her medical condition on her ability to apply herself to pass the examination and to her study of the Biochemistry course during the latter part of session 1 and session 2 of that course. The Appeal Committee would have had before it the comments of the Executive Officer of the Faculty of Medicine on the form that accompanied the application to show cause. Those comments included ‘not her real problem of simply not having the capacity to pass’. The Appeal Committee also had a copy of the Applicant’s academic record. Dr Milner Davis stated that she would have looked favourably on the Applicant’s appeal and she requested that her views be put before the committee. Whether this in fact was done and what consideration the Committee gave to Dr Milner Davis’ view, is not in evidence before the Tribunal. It is the view of the Tribunal that it was open to the Appeal Committee to grant the application on the ground of the Applicant’s medical condition or to consider that notwithstanding her medical difficulties, that she had not demonstrated sufficient ability to show that she could meet the University’s academic standards for the medical course and in particular the Biochemistry subject.
135 In 1989 the law required that the Tribunal apply a dominant purpose test to distinguish between more than one reason for the application of less favourable treatment where the more dominant reason was a ground for the less favourable treatment. The Applicant bears the onus of satisfying the Tribunal where there is more than one reason for less favourable treatment that the dominant cause of the less favourable treatment was on a prohibited ground. The evidence adduced by the Applicant in this inquiry, in the view of the Tribunal, does not enable the Tribunal to determine that the Appeal Committee did not uphold her Appeal because it did not accept that her medical condition supported her claims of her inability to properly study for and to properly prepare for the examination in the biochemistry subject. It is clear that the Faculty of Medicine considered that the Applicant’s academic record was unsatisfactory both in its comments in 1987 and again in 1988 and it showed that the Faculty considered the Applicant did not have the necessary academic capacity to progress in the medical course. In the absence of any evidence as to the actual considerations given to the Applicant’s application by the Appeals Committee, the Tribunal, on the evidence, cannot determine that the Appeal Committee predominantly rejected her appeal because it was not satisfied that her medical condition had prevented her from passing the biochemistry subject in 1988.
136 Whatever the real reason for the Appeal Committee’s rejection of the Applicant’s appeal, the Court of Appeal decision in December 1993 has the effect that the decision of the Appeal Committee was invalid and void. The University should not have given effect to that decision. However, it did so, albeit unaware the decision was ineffectual. Clearly, the University gave effect to that decision by the letter written by the Academic Registrar to the Applicant on 15 March 1989. In that letter the Applicant was advised that the Appeal Committee had upheld the decision of the Admissions and Progressions Sub-Committee that she be excluded for 1989 and 1990 from the medical course in the biochemistry subject and ICBS subject. The letter continued:
137 By giving effect to the invalid decision of the Appeal Committee, the Respondent University subjected the Applicant to less favourable treatment when compared to the application of a decision made by the Appeal Committee to a student who was not physically handicapped being a decision that was favourable to the student and was made at the same meeting of the Appeals Committee. Although the latter decision was also invalid, the application of the decision to allow the student who was not physically handicapped to re-enrol in the University, was by comparison far more favourable than the application of the decision made in relation to the Applicant.
“I draw your attention to your previous exclusion advice that states that you will be required to re-compete with the current intake when applying for re-admission to the above course.’
138 The decision to apply the invalid decision of the Appeal Committee to the Applicant would have been made by the Academic Registrar in his administrative capacity. Although there was no evidence put before the Tribunal as to the process by which the Academic Registrar decided to apply the decision, the Tribunal is unable to determine that the process of the application of the Appeal Committee’s decision to the Applicant was connected in any causal sense to the Applicant being a physically handicapped person. The Tribunal has determined that the evidence does not enable the Tribunal to determine that the Appeal Committee’s decision was causally connected to the Applicant being a physically handicapped person. It is even less likely, in the view of the Tribunal, that the Academic Registrar would have taken into account that the Applicant was physically handicapped when making his decision to write to the Applicant in terms of his letter of 15 March 1989. That letter did not express any reason for the Appeal Committee’s decision to uphold the decision of the Admissions and Progressions Sub-Committee.
139 The Tribunal is not satisfied that the evidence establishes that the less favourable treatment afforded the Applicant in relation to the appeal to the Respondent University’s Appeals Committee; the consideration of that appeal by the Appeals Committee; the decision taken by the Appeals Committee to uphold the decision of the University’s Progressions and Admissions Sub-Committee, although invalid; and the application by the Respondent University of that decision to the detriment of the Applicant, were either made or taken by the Respondent, on the ground of the Applicant being a handicapped person.
Findings of the Tribunal
140 In summary, the Tribunal in relation to the complaints lodged by the Applicant with the Board on 13 April 1989 and involving claims of indirect discrimination and direct discrimination against the Respondent, have not been substantiated. The Tribunal accordingly directs that the complaints made by the Applicant, be dismissed.141 The Respondent University has not made an application to the Tribunal for an order for costs under Section 114 of the Act. The Tribunal however has given consideration to whether the circumstances would justify the Tribunal in making an order for costs against the Applicant. In all the circumstances of this inquiry and taking into account that the lack of legal representation by the Applicant undoubtedly led to an extended hearing of the inquiry, the Tribunal considers that it would not be justified in making an order for costs and it declines accordingly to exercise its discretion under Section 114(2) of the Act.
3
1
1