Loch v Director General, Department of Education and Training

[2007] NSWADT 281

CITATION:	Loch v Director General, Department of Education and Training [2007] NSWADT 281
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lione Loch on behalf of Shannon Loch RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	071050
HEARING DATES:	31 July 2007
SUBMISSIONS CLOSED:	31 July 2007
DATE OF DECISION:	3 December 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Lavery v Commissioner of Fire Brigades [2003] NSWADT 93 Wollongong City Council v Bonella [2002] NSWADTAP 26 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	K Edwards, barrister K Eastman, barrister
ORDERS:	Leave is refused.

REASONS FOR DECISION

Introduction

1 This is an application by Ms Loch for the Tribunal to give permission for a complaint of disability discrimination she made on behalf of her son to proceed despite the fact that it was declined by the President of the Anti-Discrimination Board (ADB). Ms Loch’s nine year old son, Shannon, started school at Duranbah Primary School in February 2005. Shannon has Asperger’s Syndrome and Ms Loch was not happy with the level of support that the school offered. Shannon did not attend school after a date in early May. Ms Loch says that the school has discriminated against Shannon by either failing to re-enrol him or in the terms that it is prepared to re-admit him as a student. The Department says that it did not terminate Shannon’s enrolment and there has been no application for him to re-enrol.

2 Ms Loch lodged a complaint with the President of the ADB on behalf of her son on 29 May 2006 alleging that the Department had discriminated against him on the ground of his disability. The President of the Board did not accept any aspect of Ms Loch’s complaint that occurred prior to 29 May 2005 because it was out of time. Ultimately the President declined the remainder of the complaint as lacking in substance. Ms Lock decided to pursue the complaint in the Tribunal but before she can do so, she needs the Tribunal’s permission or “leave”: Anti-Discrimination Act 1977 (AD Act), section 96(1).

Approach to determining leave under section 96

3 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

4 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success.

Factual background

5 On 17 May 2005, after Shannon had stopped attending school, Ms Loch met with Departmental representatives and lodged a formal complaint about various matters including the provision of an appropriate program for Shannon. Ms Loch says that at that meeting Mr Ron Hankin, the School Education Director from the Murwillumbah Office, said that it was not possible for Shannon to return to school because the relationship between Ms Loch and the school had “broken down” and was “poisoned”. She said that she was offered a larger school but rejected that option because she did not think it was suitable. Ms Loch says she had no choice but to enrol Shannon in Distance Education.

6 The Department says that Ms Loch indicated to Mr Hankin at the meeting on 17 May that Shannon’s experience at the school prevented her from arranging for his re-attendance. After some discussion about the options available, the Department says Ms Loch decided to enrol Shannon in Distance Education. According to the Department, Shannon’s enrolment was not terminated by the Department, but by Ms Loch.

7 By letter dated 18 October 2005, Mr Ron Hankin, wrote to Ms Loch advising her of the findings following investigation of her complaint. Those findings were that one of her complaints involving a breach of confidentiality had been substantiated, in part, but that the remainder of her allegations were not substantiated. Mr Hankin sent a final letter to Ms Loch dated 1 November 2005. That letter summarised the reasons for the decisions about Ms Loch’s complaints and outlined the action that would be taken. The letter concluded by thanking Ms Loch for her participation in a meeting on 18 October 2005 and saying that the Department remains committed to supporting Shannon’s further education.

Legal characterisation of complaint

8 Legislative provisions. Ms Loch alleged that the Department had breached section 49L(1) of the AD Act. That provision states that:

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.

9 The merits of this case depend firstly on whether the Department did something or failed to do something in relation to Shannon’s admission as a student during the period of the complaint, that is between 30 May 2005 and 29 May 2006. If it did, I will go on to examine the merits of Ms Loch’s contention that the Department’s conduct was “on the ground of” Shannon’s disability: section 49B. Ms Loch alleged that her son had been treated less favourably, than in the same or similar circumstances, a child without his disability would have been treated and that at least one of the reasons for that treatment was his disability. Ms Loch did not submit that the Department had discriminated against Shannon “indirectly” by imposing any particular requirement or condition on his attendance as set out in section 49B(1)(b).

10 Refusing or failing to accept application for admission. I understand Ms Loch’s first submission to be that Mr Hankin decided at the 17 May meeting that since the relationship between Ms Loch and the school had broken down, Shannon should not attend the school. Although that “decision” did not occur within the complaint period it was ongoing because she was never told that Shannon could re-enrol. It is possible that conduct which commenced prior to the start of the period of complaint, but which continued during the period of the complaint, is covered by the AD Act. The Appeal Panel said in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [87] that, "A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues". (See also Lavery v Commissioner of Fire Brigades [2003] NSWADT 93.)

11 Conclusion. Even if Mr Hankin’s “decision” could be regarded as being operative during the period of the complaint (i.e. after 29 May) that conduct does not fall within section 49L(1). There was no refusal or failure to accept an application for admission as a student. Ms Loch made no such application, either verbally or in writing. Nor did not allege that there had been a breach of section 49L(2) in that the school had expelled Shannon or subjected him to any other detriment. Furthermore, even if there was a “constructive” refusal to enrol Shannon, on Ms Loch’s own evidence, the decision was made because the relationship between her and the school had “broken down” and was “poisoned”. Neither Shannon’s disability, nor a characteristic that appertains generally or is generally imputed to people who have Asperger’s Syndrome, was a ground for the decision.

12 Admission on certain terms. Ms Loch’s alternative submission was that the school was only prepared to re-enrol Shannon on certain terms: section 49L(1)(b). Those terms were basically that he continue to be subjected to the treatment that she had complained about.

13 Conclusion. On Ms Loch’s evidence, Mr Hankin was not prepared to admit Shannon as a student because the relationship between her and the school had broken down. It cannot be inferred on the basis of that evidence that there were any terms on which the school was prepared to re-enrol Shannon. As we have said, Ms Loch did not allege that there had been a breach of section 49L(2) in that the school had expelled Shannon or subjected him to any other detriment. If Ms Loch had relied on that provision, it would have been more difficulty for her to characterise the conduct as ‘ongoing’. Given these difficulties, Ms Loch has not satisfied me that there is a substantial reason for granting leave. In particular I am not satisfied that the complaint has reasonable prospects of success.

Order

Leave is refused.