King v University of Notre Dame Australia

[2017] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	King v University of Notre Dame Australia [2017] NSWCATAD 58
Hearing dates:	1 November 2016
Date of orders:	23 February 2017
Decision date:	23 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave   EQUAL OPPORTUNITY — indirect discrimination — meaning of a “requirement or condition”
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 BKY v The University of Newcastle [2014] NSWCATAD 39 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 Garriock v Football Federation Australia [2016] NSWCATAD 63 Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 King v The University of Notre Dame [2015] NSWSC 309 State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 Walker v State of Victoria [2011] FCA 258 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Category:	Principal judgment
Parties:	Christina King (Applicant) University of Notre Dame (Respondent)
Representation:	In person (Applicant) S Fitzpatrick, barrister (Respondent)
File Number(s):	1610646

REASONS FOR DECISION

1. In February 2016, Christina King lodged a complaint with the President of the Anti-Discrimination Board (the President) alleging that she had been discriminated against by the University of Notre Dame in the area of education, on the grounds of presumed disability, namely the condition of anorexia nervosa. The President declined Ms King’s complaint (the Complaint) on the ground that Ms King was no longer a student of the University when she made the Complaint, and therefore the impugned conduct did not contravene the Act: s 92(1)(a)(ii) of the Anti-Discrimination Act 1977 (NSW) (the Act). As a consequence, the Complaint may not be the subject of proceedings before the Tribunal without leave of the Tribunal: s 96(1) of the Act.

2. Ms King urges the Tribunal to grant leave for the Complaint to proceed contending that it has a complex history and warrants a determination of its merits. The University opposes the grant of leave but not on the grounds that Ms King was not a student when she lodged the Complaint. The University contends that Ms King now seeks to avoid the terms to which she agreed in August 2015 about the conditions governing her continued enrolment in the University.

3. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

Statutory framework and principles governing the grant of leave

4. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

5. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii).

6. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

7. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).

8. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Background to the Complaint

9. In 2013, Ms King commenced the first year of the University’s Bachelor of Medicine and Bachelor of Sciences degrees (MED 1000). In December 2013, Ms King was awarded a fail grade in MED 1000. Ms King appealed that award. At the start of the 2014 academic year, the appeal had not been determined but nonetheless Ms King was permitted to commence and continue the second year of her degree (MED 2000) until the appeal was determined.

10. In May 2014 the University notified Ms King of its decision to dismiss her appeal.

11. A week later, Ms King commenced proceedings in the Supreme Court of NSW seeking judicial review of the University’s decision to award a fail grade in MED 1000 and its subsequent decision to dismiss her appeal against that decision. The University permitted Ms King to continue the second year of the degree until her application to the Supreme Court was determined.

12. In December 2014, Ms King was awarded a Fail grade in MED 2000 and the University terminated her enrolment as student.

13. In January 2015, Ms King sought an interim order from the Supreme Court, designed to preserve the status quo until the University’s internal appeal process had been exhausted and the application for judicial review determined. The Supreme Court dismissed that application: King v The University of Notre Dame [2015] NSWSC 309 (30 March 2015).

14. In April 2015, Ms King lodged a complaint with the Board against the University, alleging unlawful discrimination on the ground of disability.

15. On 25 August 2015, the parties entered into a deed of settlement (the Deed). Under the terms of the Deed Ms King was permitted :

1. To sit a supplementary examination for MED 1000, subject to her providing medical evidence of her fitness to sit that examination.

2. To sit a supplementary examination for Med 2000, providing she (i) achieved a minimum of a Pass grade overall and in “each individual domain”, in the supplementary examination for MED 1000, and (ii) provided medical evidence of her fitness to sit that examination.

3. To re-enrol in MED 3000 in 2016, providing she (i) achieved a minimum of a Pass grade overall and in “each individual domain” in the supplementary examination for MED 2000, and (ii) satisfied a number of conditions, including any imposed by the Medical Council of NSW.

16. In addition, the parties agreed that the results of any examination sat by Ms King pursuant to the Deed, would be “final and binding”. In addition, Ms King agreed to withdraw the complaint made in April 2015 to the Board and to discontinue the proceedings commenced in the Supreme Court in May 2014.

17. Following the execution of the Deed, Ms King filed a notice of discontinuance in the Supreme Court. Subsequently, a problem arose about the dates of, and Ms King’s ability to sit the supplementary examinations. Agreement was reached about these issues and the Deed was varied.

18. In December 2015 Ms King sat a supplementary examination in MED 1000. She was awarded a fail grade for the domain, Communication and Clinical skills and a final grade of “Fail due to non-completion”. Ms King did not take the MED 2000 supplementary examination.

19. In January 2016, Ms King wrote to the University requesting a final grade of pass or higher in MED 1000 and the opportunity to sit a supplementary examination in MED 2000. The University refused that request.

20. In March 2016, Ms King filed a fresh application in the Supreme Court, seeking among other things, review of the decision made by the University in 2013 to award her a fail grade in MED 1000 and the subsequent decision to dismiss her appeal against that decision. It will be recalled that those decisions were the subject of Ms King’s original application to the Supreme Court. In addition, Ms King sought orders in relation to the University’s decision to award her a fail grade in the MED 1000 supplementary examination.

Ms King complains to the Board

21. On 1 February 2016, Ms King lodged a complaint with the Board concerning the University’s alleged contraventions of the Act, said to have occurred in 2013 and 2015. She wrote that she wished to complain about discriminatory clauses in the Deed. In addition she wrote that while the Deed was subsequently varied “…the discriminatory clauses were retained. The discrimination is ongoing”.

22. In the Complaint, Ms King listed seven examples of alleged “discriminatory clauses” contained in the Deed, including:

• The requirement that she achieve at least a Pass grade in each individual domain subject in the supplementary examination for MED 1000.

• The requirement that she provide medical evidence that she was fit to sit the supplementary examinations held in December 2015.

• The lack of any right to appeal any decision made by the University about the 2015 supplementary examinations.

• The imposition of invalid “Study Conditions upon me ostensibly pursuant to conditions set by Medical Council”.

23. In addition, Ms King contended that her treatment by staff members of the University’s School of Medicine throughout the course of 2013 was “discriminatory” on the ground of “the perception of the disability of anorexia nervosa”. She asserts, for example that she was the only student in her cohort who not given the opportunity to undertake a placement in a medical practice.

24. Further, Ms King contended that the “lack of confidence and bias showed by the staff of the school of medicine”, adversely affected her learning experience and meant she was deprived the opportunity to learn in a supportive environment “free from bias, harassment and discrimination”.

25. On 15 March 2016, the Board notified the parties of its decision to decline to accept that part of the Complaint that pre-dated 25 August 2015 on the ground that it had been the subject of an earlier complaint, which Ms King subsequently withdrew. The Board proceeded to investigate that part of the Complaint which related to the University’s conduct between 25 August 2015 and 1 February 2016, concerning the Deed and the application of its terms by the University.

26. On 29 August 2016, the Board’s acting Manager Complaints, wrote to Ms King advising of the decision, made under s 92(1) of the Act, to decline the Complaint on the ground that it did not disclose a contravention of the Act. The Acting Manager reasoned that the University’s actions in entering into the Deed and implementing its terms, did not amount to “discriminatory treatment within the scope of s 49L of the Act, given that at the relevant time, [Ms King] was no longer a student enrolled at the University”.

Statutory framework: unlawful discrimination

27. The Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability:

49L Education

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

(a) by refusing or failing to accept his or her application for admission as a student, or

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

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

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

…

28. “Disability” is defined to include the malfunction, malformation or disfigurement of a part of a person’s body, and a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour: s 4 of the Act. Disability includes past, future and presumed disability: s 49 A of the Act.

29. The Act explains what constitutes discrimination on the ground of disability:

49B What constitutes discrimination on the ground of disability

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

(a) on the ground of the aggrieved person’s disability …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability …, or

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

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

…

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

30. Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Should leave be granted for the Complaint to proceed?

31. The discretionary power conferred by s 96 of the Act, can only be exercised if the President has declined the complaint or part of the complaint and, on the request of the complainant, the President has referred the complaint or part of the complaint to the Tribunal under s 93A of the Act.

32. In March 2016, the President declined that part of the Complaint which pre-dated 25 August 2015. That part of the Complaint was not referred to NCAT under s 93A, and accordingly, I do not have power to decide whether to grant leave for that part of the Complaint, to proceed.

33. As noted, the Board decided to decline the Complaint on the grounds that Ms King was no longer a student. Ms King points out that the complainant in BKY v The University of Newcastle [2014] NSWCATAD 39 was not a student at the time she made her complaint to the Board but nonetheless the Tribunal held she was entitled to rely on s 49L . She claims that she should not be deprived of the right to make a complaint under the Act merely because she lodged the Complaint after the decision was taken to terminate her enrolment as a student, a decision she asserts is invalid.

34. Section 49L of the Act concerns unlawful discrimination on the ground of disability in the area of education. Section 49L(1) concerns discrimination against “persons”; s 49L(2) concerns discrimination against “students”. The term student is not defined by the Act. In my view, the Board erred in declining the Complaint on the ground that Ms King was “no longer a student”. Section 49L plainly extends to “persons” who are not students.

35. However, this is not determinative of the question of whether leave for the Complaint to proceed should be granted. In answering that question, I must examine the Complaint and decide whether in the circumstances of this case it is “fair and just” to grant or refuse leave. In undertaking that task I will consider among other things, whether, if the facts asserted by Ms King are accepted, cast as a complaint of direct and/or indirect discrimination, the impugned conduct might disclose a contravention of the Act.

36. For the purpose of this exercise I will assume but not decide that Ms King would be entitled to rely on s 49L(2) of the Act.

What Ms King must establish if the Complaint were to proceed

37. Ms King contends that the University’s decision to not allow her:

1. To re-enrol to complete her degree; and

2. To re-enrol without complying with the Deed, which she asserts imposed “discriminatory conditions” on her re-enrolment

constitutes unlawful discrimination under s 49L of the Act.

38. For current purposes, I will assume that the University’s decision to refuse to allow Ms King to complete her degree constitutes the denial of a benefit: s 49L(2)(a) and/or a detriment: s 49L(2)(c).

The University’s decision to refuse to allow Ms King to complete her degree

39. The University disputes the contention that it subjected Ms King to discriminatory treatment on the grounds of disability in relation to the arrangements made in August 2015 to assess her progress and continuing enrolment in the School of Medicine. It contends that under the terms of the Deed, Ms King was given a “second chance” to continue her studies, providing conditions to which she had agreed were met. It asserts that that opportunity was not afforded to other students.

Direct discrimination

40. If cast as a complaint of “direct discrimination” Ms King must establish:

1. That by refusing to allow her to complete her degree/requiring her to comply with the terms of the Deed in respect of her re-enrolment, the University treated her less favourably, in the same or similar circumstances, than it treated, or would have treated a person who was not presumed to have the condition of anorexia nervosa or substantially the same condition (less favourable treatment); and

2. That one of the reasons for that less favourable treatment was because of her presumed disability, a characteristic that generally appertains to, or is generally imputed to persons with her particular disability (causation).

41. The first element requires a comparison to be drawn between the treatment afforded Ms King and the treatment that was afforded, or would have been afforded, to a person/student not thought to have anorexia nervosa (or substantially the same condition), in the same or similar circumstances to Ms King. Critical to that exercise, is the identification of the circumstances surrounding the alleged less favourable treatment.

42. The comparison to be undertaken is not, as Ms King appears to suggest, between the treatment she was afforded by the University after sitting a supplementary examination in MED 1000 in 2015, and students who sat the examinations MED 1000 in that year (or 2013), but with a student(s) in the same or similar circumstances to Ms King. Those circumstances would include an actual or hypothetical student with Ms King’s history, namely failing to achieve a pass Grade for MED 1000 and MED 2000, appealing without success the decision to award a fail grade for MED 1000 and MED 2000 and not achieving at least a Pass grade in each domain subject after sitting a supplementary examination in MED 1000.

43. If the matter were to proceed to hearing, I think the likelihood of Ms King being able to establish that she had been subjected to less favourable, and therefore a contravention of the Act, would be remote.

Refusal to allow Ms King to re-enrol unless she complied with the Deed

44. Ms King contends that the terms of the Deed subjected her to more onerous requirements in relation to her re-enrolment, than imposed on the general student body. These include the requirement that:

1. she provide medical evidence of her fitness to sit the supplementary examinations conducted in December 2015;

2. she achieve a minimum of a pass grade in each individual domain in MED 1000 and MED 2000; and

3. if the above requirements were met, that she satisfy any additional requirement that may be imposed by the Medical Council before being able re-enrol in MED 3000 in 2016.

45. Ms King contends that the “discriminatory requirement” that she achieve a Pass grade in each subject domain did not apply to any other student who sat the MED 1000 examination in 2013. She contends that, as she was a student in MED 1000 in 2013, the rules that applied to students in that year should have been applied to her when she sat the supplementary examination in 2015.

46. With respect to the requirements under the Deed that she provide evidence of her fitness to sit any supplementary examination and comply with any condition imposed by the Medical Council, she points out that these did not apply to the student body.

47. Again, the issue is not whether Ms King was subjected to more onerous requirements in respect of her re-enrolment than other students, but whether by agreeing to and implementing the terms of the Deed, the University subjected Ms King to less favourable treatment than an actual or hypothetical student would have been afforded, in the same or similar circumstance to Ms King. Again that comparison requires regard to the circumstances surrounding the formulation and implementation of those requirements. The appropriate comparator would be a hypothetical student in same or similar circumstances to Ms King, when the Deed was executed.

48. Again, I think the likelihood of Ms King being able to establish less favourable treatment if the matter proceeded to hearing, would be remote.

Indirect discrimination

49. To succeed as a complaint of indirect discrimination under s 49B(1)(b) of the Act, Ms King must establish that:

• The University imposed a requirement or condition; and

• She was unable to comply with that requirement or condition; and

• A substantially higher proportion of student/persons comply or are able to comply with that requirement or condition; and

• The requirement or condition was not reasonable having regard to the circumstances of the case.

The requirement or condition

50. The expression “requirement or condition” is not defined by the Act. The alleged “requirement or condition” must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 (“Banovic”) at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (“Waters”) at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143). However, “considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain” (Walker v State of Victoria [2011] FCA 258 at [194]).

51. The authorities have consistently stated that the words “requirement or condition” should not be given a narrow or technical construction (State ofNew South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 (“Amery”) at 195). Rather, the words are to be interpreted liberally so as to further the objects of the Act (Banovic at 185, 195-7, 393-4, 406-7; Amery at [64]). Set out in the long title to the Act, the objects of the Act are “to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”.

52. I understand Ms King to identify as the offending requirement(s) the seven requirements listed in the Complaint, together with the requirement that she comply with the terms of the Deed overall.

53. To constitute a requirement or condition within the meaning of s 49B(1)(b) of the Act, the educational authority must require not only the “aggrieved person”, in this case Ms King, but also other students/persons to comply with the impugned requirement. This is because indirect discrimination requires the decision-maker to decide whether a “substantially higher proportion” of persons without the relevant characteristic — in this case presumed disability — “comply or are able to comply” with that requirement as compared to the proportion of persons without that characteristic who comply or are able to comply with that requirement. Self-evidently that exercise can only be undertaken if more than one person is required to comply with the nominated requirement. (see Garriock v Football Federation Australia [2016] NSWCATAD 63)

54. Ms King was the only student/person required to comply with the terms of the Deed overall and the individual terms about which Ms King complains. It follows that the requirement to comply with the Deed or any of its terms could not be said to constitute a requirement/ condition within the meaning of s 49B(1)(b).

55. It follows that, cast as a complaint of indirect discrimination, the Complaint must fail.

Conclusion

56. I have considerable sympathy for Ms King in her disappointment. She is an intelligent person who has made a substantial personal investment in studying medicine. She feels aggrieved about the decision by the University to refuse to permit her to continue as a student in the University’s School of Medicine. However, in deciding whether to exercise the discretion to grant leave for the Complaint to proceed before the Tribunal, I must restrict myself to the Complaint referred by the Board, which relates to the conduct of the University from August 2015. The scope of that Complaint does not extend to many of the issues Ms King now seeks to raise.

57. For the reasons set out above I have concluded that the prospects of the referred Complaint succeeding are poor and it is fair and equitable, having regard to the interests of both parties to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.

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

Registrar

Decision last updated: 23 February 2017