Malaxetxebarria v State of Queensland

[2008] HCATrans 338

[2008] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B25 of 2007

B e t w e e n -

GRACIA MALAXETXEBARRIA (BY HER NEXT FRIEND ROBYN MALAXETXEBARRIA)

Applicant

and

STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON TUESDAY, 30 SEPTEMBER 2008, AT 11.18 AM

Copyright in the High Court of Australia

MS R. MALAXETXEBARRIA appeared in person.

MR A.A.J. HORNEMAN‑WREN:   May it please the Court, I appear for the respondent.  (instructed by Crown Law – Brisbane)

KIRBY J:   You are appearing in person for the applicant, who is your daughter, is that correct?

MS MALAXETXEBARRIA:   Yes, your Honour.

KIRBY J:   Mr Horneman‑Wren, you are in Brisbane and you are appearing for the State of Queensland?

MR HORNEMAN‑WREN:   May it please the Court.

KIRBY J:   Yes, thank you very much.  Yes, well, what do you have to say to the Court?

MS MALAXETXEBARRIA:   I address this Court as a duty of care of a mother rather than Gracia’s next best friend because I think the verity of that statement might be challenged by teenagers.  However, it is on a matter of common law, commonsense and common decency that I bring this matter to the Court of public importance.  It was not until I received by internet that the decision of the appellate Court had dismissed the orders of the Supreme Court judge, Mr Helman, that had made a finding that there was an error of fact that I appeal to this Court.

Upon learning that it had been dismissed, the Supreme Court judge’s ruling to have a rehearing of that case from June onwards, I went to the Supreme Court library and I did read the book of David O’Brien on special leave to appeal to the High Court.  So you will be pleased to know that I have informed myself somewhat and I am going to address the two points that he says are pertinent, and also D.F. Jackson says to address this Court.  First the public importance.  It is my submission, this is a case where there should be a grant of special leave to appeal because there was not a fair hearing.  Justice Helman, in the application book on page 32 ‑ ‑ ‑

KIRBY J:   Can I interrupt you to say something, and it is really directed to Mr Horneman‑Wren rather than yourself, perhaps, though it concerns you both.  Many years ago I was involved in and was a patron of an organisation called CHIP, which is an organisation largely made up of parents concerned principally in New South Wales with the rights of gifted and talented children.  I have not had any active role in the organisation since 1996 when I was appointed to this Court.  Indeed, I am not even sure that I am still associated with the organisation, but just in case it creates any problems in the matter, I thought I should put that on the record.  Does that create any problems for you in my sitting in this case?

MS MALAXETXEBARRIA:   I feel honoured that you must have knowledge of this problem within the gifted and talented community at large in Australia.  You would have a good ‑ ‑ ‑

KIRBY J:   Anyway, you do not have a problem with my sitting in the matter?

MS MALAXETXEBARRIA:   No.

KIRBY J:   Mr Horneman‑Wren, I should have announced this earlier in the matter but it just slipped my mind when concentrating on Mr Eastman’s case.  Do you have any problem with my participating in the case?  I really have had no connection with the organisation since I have been on this Court.

MR HORNEMAN‑WREN:   It is not a matter of any concern whatsoever to the respondent, your Honour.

KIRBY J:   No.  Thank you very much.  Yes, I am sorry to have interrupted you, you go back to where you were.

MS MALAXETXEBARRIA:   On page 32 of the application book I refer to the judgment of – not to the judgment, but in his deliberation in his judgment.  The senior Supreme Court judge brings us to the case of Steed v Minister for Immigration and Ethnic Affairs (1981) and it says:

It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention.  It is not in anyone’s interests that the judge or Tribunal be expected to set out every consideration which passes through his mind, although some, and usually the most significant, will be expressly dealt with.

However, this is the important part:

An error of law may, however, be committed by a tribunal if a central issue before it is ignored or there is a failure to make findings on material questions of fact –

Then he has these quotes which you are familiar with.  Also I would like to turn to the Appeal Court decision on page 63 of the application book and I take the case that was the High Court in Craig v The State of South Australia.  It discusses what constitutes – it is at point 10 of the page:

“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.  The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction.  Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court.”

They are the two major case studies that I refer to that are referred to by the judges, our learned judges, in the Supreme Court and the appellate court.  Also Justice Kirby, as I read his papers of the University of New South Wales Law Journal, Maximising Special Leave Performance in the High Court of Australia, on his page 10 – you do not have that before you – and these are the very quotes of Justice Kirby:

Analysis of the written law, rather than reliance on the words of judges, is usually the correct place to start.

As I will point out in my second address, there was a matter of acute error of law in the primary judge of Member Mullins in the Tribunal.

KIRBY J:   Do you agree that the appeal to the Supreme Court from the Anti‑Discrimination Tribunal in Queensland is confined to a point of law?

MS MALAXETXEBARRIA:   Yes, there was no fair hearing.

KIRBY J:   Do you agree that it is confined to a point of law, an error of law in the original decision which is the focus of the appeal to the Supreme Court?

MS MALAXETXEBARRIA:   I do, your Honour.

KIRBY J:   Now, the point on which you had lost in the Court of Appeal was that the Court of Appeal unanimously held that Justice Helman had made a mistake in addressing not the decision which had been made in 2004 by reference to the events that had occurred at and before that decision, but by taking into account in assessing whether a legal error had occurred in that decision events that had occurred thereafter, namely, in the registration of your child as a child in a private school, and therefore that Justice Helman’s mistake was in failing to focus his mind only on the decision of September 2004.  What is the answer to that?

MS MALAXETXEBARRIA:   I allege that Member Mullins was in error of law.  He was a primary judge and the appellate court then referred to the Member Mullins’ error of law to dismiss the Supreme Court judge, Justice Helman, finding that there was an error of law when I appealed to him that a fair hearing had not occurred when the major evidence which occurred in September was not addressed by Member Mullins in the Anti‑Discrimination Tribunal.

KIRBY J:   But how could there be an error of law by the member on the basis of facts which at the time of the decision had not yet occurred?

MS MALAXETXEBARRIA:   The time the decision was in September and not in January and when Member Mullins addressed the points, it was vigorously argued by me in the Tribunal that it was till September and even till 2005 and that is why I have made that submission of papers for my oral argument; that there was a timeframe practically from 2000 to 2005 where there was discrimination by the Department of Education, but the instructions of the Crown Law were to focus to the January discrimination and not to address where it was actually submitted to the Anti‑Discrimination Tribunal.  It was not submitted there until September – after the September discrimination of Anna Bligh, the Minister for Education of Queensland.

Also the discrimination went on and it was submitted to court – the letter of Pat Farmer, you will see in the spiral.  I was going to address this a little further on.  I was going to refer first to the public importance of the case, but if your Honours go to the back page of that spiral black book, you will see there it was submitted under the directions of Member Forest at disclosure – and I do not know why it was not included in the original volumes, but it was included eventually in the Supreme Court – page 1028 – that there is a federal member, Pat Farmer, there, and I take you down to the bottom paragraph, and you see that here, I will read:

I am advised by Centrelink that Education Queensland has stated that it is able to provide an individual Education Programme for your daughter Gracia at a nearby government primary school.  This means that there is an appropriate government school close to your home.

This is where common law and commonsense and common decency raise their heads, because this is at 19 April 2005.  She is in year 9 and this is what the Department of Education – this is not a telephone or hearsay, this is evidence before the court.

KIRBY J:   Just answer this question, did the member ‑ ‑ ‑

MS MALAXETXEBARRIA:   Mullins had this before him?

KIRBY J:   Did that member deal with the decisions of the department following your registration of your child at a private school?

MS MALAXETXEBARRIA:   No, he did not.

KIRBY J:   If that is the case, was the focus of the attention of the Tribunal, through Member Mullins, upon the facts that it occurred prior to the registration of your child at a private school?

MS MALAXETXEBARRIA:   That was exactly the case.  He focussed on that December/January issue which was not the case.  The major evidence happened in September, your Honour, and he never addresses it in his judgment at all.  That was the focus and the Latin, the focus or focali, is the fuel, the coal, the embers, the heat, for this case.  That he did not address that major evidence can be seen none other but unfair hearing.

KIEFEL J:   It was your case that the department refused a request for your child to be enrolled at the Rosewood State High School in September 2004, is that right?

MS MALAXETXEBARRIA:   Yes, all through the year.  I had another son ‑ ‑ ‑

KIEFEL J:   Could I just take you to this, though.  At application book page 49, paragraph [42] in the Court of Appeal’s judgment, Justice Keane’s judgment, his Honour says, after noting that that had been your argument:

The respondent’s mother was unable to identify evidence that the request was put to the Department in those terms on behalf of the respondent.

That is the first thing he notes, but then his Honour goes on:

For the sake of argument, however, it may be accepted that there was, at that time, a decision by the Department not to reconsider its decision of January 2004.  Even if this assumption is made in the respondent’s favour, it does not follow that such a decision could be regarded as unlawfully discriminatory because of the Department’s failure to act upon the terms of the June report of Brisbane Adventist College.  That is because, on the evidence, at the time of the alleged acts of discrimination, the Department did not have the information contained in that report.

MS MALAXETXEBARRIA:   I would address that, your Honour, by saying that it is by their actions and to the law that they are judged not on what I have done or what I have not done, and this Minister for Education had received the emails from parliamentarians, so she had a duty of care at least to contact me when the parliamentarians have sent my letter on “please help” the inquiry was ‑ ‑ ‑

KIRBY J:   You see, the point that is being raised against you is a technical point.  It is the technical point that courts proceed by reference to particular issues and the suggestion is that the issue and the decision which is reviewable on appeal to the Supreme Court is confined to the decision which was made in 2004 by reference to the facts at that time without regard to the facts that occurred later and that this was the mistake that Justice Helman made.  That is why you lost in the Court of Appeal, so we have to grapple with that contention.  I am not saying there is but there may be some subsequent discrimination complaint that you can bring, but we have to focus on the one which you originally brought and which was the subject of the decision of the Tribunal.

MS MALAXETXEBARRIA:   My original and actual in every case was that there was evidence before the court and the major evidence was of September and it was never addressed.  When Justice Helman gave his judgment – he again referred to the Member Mullins, even though it was incorrect – the primary judge was incorrect in his finding of facts and I can point that out to you.  With the letters that you have in that spiral, he was incorrect and so instead of, in my limited capacity as uneducated mother, going and pointing out all the technicalities of where he erred on the facts, that Justice Helman had sent it back to the Anti‑Discrimination to have a fair hearing from June on to September, I was satisfied that at least the major evidence would be addressed, because it is my contention that the law is there in the Anti‑Discrimination Tribunal and the facts are there in the exhibits.

Shall I go on with the public importance of this case before I go to the – I am actually going to address more on the major errors of law when I get to the second part of my address.  I was just trying to present to you how important it is for Australian kids to be given an opportunity, when we do have an Anti-Discrimination Act that was enacted by Parliament and the Minister for Education was sent the letters from Parliament and that they have to obey the law as much as us.  I will get back to my point so I do not get distracted here. 

The Anti‑Discrimination Act laws, which I have here, are very clear and when you read them, as Justice Kirby said, it is important that we:

Analysis of the written law, rather than reliance on the words of judges, is usually the correct place to start.

I look at section 38 and section 39 of the Anti-Discrimination Act and how they are defined, and the evidence in the exhibits that have been submitted.  You will see that the major discriminator, the Minister for Education, has not just sent one letter to me, but there is three letters in that period of 2000 to 2004, September, she was involved and she had a duty to investigate in her ministerial responsibility.

The second reason of public importance that I have written down is education is a fundamental of society.  That is why we have those laws there.  We do have our own “Advance Australia Fair” song.  The bipartisan Senate report that I would like to – I am not going to take you in any way through this spiral book.  It was basically to show you there is a ream of evidence here.  The timeframe that I allege is the period from 2000 – if you go to the page 0457, you will see that from November 2000 I have expressed, on the first paragraph – that was the letter to the Minister for Education from my federal member – had written a letter who has expressed concerns of the apparent lack of quality education in the Queensland State system. 

Until the time of my action in the courts, there was nothing for the children in Queensland unless a teacher had the attitude to do something for them.  Since the action in the court, they have developed three academic schools.  Out of those academic schools, there was 1,350 places and only 618 occupied.  What we have in Victoria, just briefly, is 35.  On this piece of paper submitted there, you will see there is 34 State schools that do a selected early advanced learning program where children from primary schools can sit an exam and be accepted into the State schools and keep the quality of the State schools on the.....instead of parents having to sacrifice to send the kids to primary schools.  We have nothing like that in Queensland.

Also, if you look at the Senate Report of Brendan Nelson’s letter on page 0510, you will see on the fifth paragraph:

The findings of the bipartisan Senate Report are based on an underlying assumption that all Australian children should have the opportunity to maximise their educational potential by having their particular needs met.  It is in the national interest that every child’s gifts and talents should be nurtured and allowed to flourish.

Political; are the politicians above the law or are just the laws for the common person?  It is important in this case that we see that a fair hearing is had and that the major discriminators can be cross‑examined and follow

their own guidelines and respect, and have the regard to dignity of our children. 

I would like to address now the major errors of law.  If you look at the application – first of all I would like to refer you to the other single piece of paper that is there.  You will see that this is a report of Crown Law’s annual report in 2006 to 2007.  They acknowledge it was a widely publicised case and they also ‑ ‑ ‑

KIRBY J:   I notice that the light has come on showing that your time is up.  If you have got something important that you want to complete, you can do that, but you will have to come pretty quickly to your conclusion.

MS MALAXETXEBARRIA:   Thank you, your Honour.  This is actually evidence that Crown Law, under instruction or otherwise, has actually misled the public.  They have said the case is of a child or a student.  You will see in that claim – this is what they advertise in their annual report – the claims were based on the refusal of the Department of Education to unconditionally accelerate the student’s education from grade 6 to grade 8.  That is incorrect.  The student was already in the high school.  It was in September that the Minister for Education then told her an appropriate education was in the primary school.  So the Crown Law can argue that under instructions, but that is not the case.  Thank you, your Honour.

KIRBY J:   Thank you very much. Mr Horneman‑Wren, would you please assist us. The provisions of section 217(1) of the Anti-Discrimination Act 1991 (Qld) provide:

A party to a proceeding before the tribunal may appeal to the Supreme Court against a tribunal decision on a question of law.

So that is the ground of getting the matter out of the Tribunal up into the Supreme Court.

MR HORNEMAN‑WREN:   Yes, your Honour.

KIRBY J:   So there are two governing qualifications there.  The point of complaint has to be on a question of law.  There is an awful lot of law on what a question of law is.  But, secondly, it has to be one which is focused on a decision of the Tribunal.  Now, the question is whether in this case there was any basis for Justice Helman’s view that the decision of the Tribunal, having regard to the matter that had been placed before the Tribunal at the time that the Tribunal made its decision, included the materials relating to the attempt to have the applicant’s daughter admitted to the Brisbane Adventist College.  What is the evidence on that?  Is there any way in which one could look at the decisions as subsumed one in the other, the later into the former?

MR HORNEMAN‑WREN:   Your Honour, in an endeavour to answer that question, can I perhaps put the correct time context to it because, as I understand your Honour’s question, it is that the decision of Member Mullins in the Anti-Discrimination Tribunal was made at a time prior to the availability of the evidence concerning the report of the college.

KIRBY J:   Did Member Mullins have any evidence about the Adventist College or not?

MR HORNEMAN‑WREN:   Member Mullins did, yes, your Honour.  The issue that Justice Helman allowed on the appeal was that Member Mullins had not given any particular concentration in his decision to events which were subsequent to effectively June 2004 through until about September 2004.

KIRBY J:   So is the position that on the evidence that the present applicant called before Member Mullins it would have been open to Member Mullins in considering the claim of discrimination on the part of the department to take into account not only what had happened in January or early in 2004 but also what had happened later in 2004 when it is said certain matters which might earlier have been in contest had been demonstrated by the applicant’s daughter’s success at the Adventist College?

MR HORNEMAN‑WREN:   No, your Honour, because that evidence was never before the department when it was alleged to have acted in a discriminatory way against the applicant.  That was the point on which the matter turned in the Court of Appeal, that Justice Helman seemed to be of a misapprehension that the evidence was not only before the Tribunal, it having been included as an exhibit to a discursive statement by the applicant’s mother, but that in fact that information had been before the department in or about June to September 2004 where the evidence established clearly that that was not the case, that the department never had provided to it or was privy to the information contained in the Brisbane Adventist College report and, therefore, did not and could not have taken that into account in the way that Justice Helman thought perhaps it might have been and that Member Mullins had not addressed that issue in the Tribunal below.

KIRBY J:   Yes.  So your contention is that because by the statute the decision is one reviewing the decision of the Tribunal, but on a question of law, and because the decision of the Tribunal properly was addressed to the decision of the department on the material that was then available to the department in January 2004, that the evidence of what had happened after January 2004 was not relevant to the actual complaint of discrimination which was before the Tribunal and hence could not become the basis of a complaint of an error of law that would warrant taking the matter to the Supreme Court, or the Supreme Court disturbing it.

MR HORNEMAN‑WREN:   It was not put in that way, your Honour.  It was put in this way, that the complaint that was made was that Member Mullins’ focus was upon the initial refusal of entry at or about the commencement of 2004 and that thereafter in June 2004 and subsequently, up until 1 September 2004 which was the date of the Minister’s letter of which you have heard this morning, there was not a reconsideration as such but a restatement of the position of the department, and that was the way that Member Mullins approached the matter, and the way that the Court of Appeal viewed all of that correspondence when it reviewed the evidence in the appeal hearing.  The point being that Justice Helman ‑ ‑ ‑

KIRBY J:   So is your theory of the case that if the applicant wished to raise any complaint arising out of the subsequent demonstration of her daughter’s skills and so on and based on discrimination against the daughter concerning events that happened after the daughter was presented to the Adventist College, she had to present that material to the department, secure a new decision and that decision might go one way or the other, but then it would be open to her to consider whether she had some new, fresh and different complaint of discrimination which could wind its way through the Tribunal and through the courts if necessary?

MR HORNEMAN-WREN:   That is so, your Honour.  Whilst there had been letters and emails sent to federal parliamentarians, State parliamentarians, the ombudsman and otherwise, never was the report or its content other than some descriptive way referred to in any of those letters and, as far as the department was concerned, never provided to it.  That was the point of fact resolved unanimously in the Court of Appeal against the applicant.

KIRBY J:   How did Justice Helman make the mistake that the Court of Appeal discerned?

MR HORNEMAN‑WREN:   Because the record in the Anti‑Discrimination Tribunal included the report as exhibit 70a to a statement that the applicant’s mother had put into the proceedings – and one takes some responsibility for this in the course of the matter before the Supreme Court – it was not clarified before Justice Helman that that was not in fact a report or a piece of information before the department at any relevant point in time, although that it had slipped into the evidence.  With respect, his Honour Justice Keane and his Honour Justice of Appeal

Williams both made observations about the fact that these proceedings conducted without pleadings sometimes, whilst one does not want to travel upon the beneficial nature of the legislation, their discursive nature sometimes allows for matters to come in a way which they ought not in normal proceedings.

KIRBY J:   Yes.  Well, we know that a similar thing happened in the Court of Criminal Appeal of New South Wales recently in a case that came to the Court, so these mistakes can happen.  The Court does not need any further assistance from you, Mr Horneman‑Wren.

MR HORNEMAN-WREN:   Thank you, your Honour.

KIRBY J:   Yes, what is your answer to what has been put to the Court?

MS MALAXETXEBARRIA:   I would like to respectfully suggest that Mr Horneman‑Wren is incorrect and I would like you to return to the spiral book that you have in front of you to page 0519 – and while you are turning to that I would just like to suggest – I admit that the member in the Tribunal does not have to take – he can loosely control his court however he likes, but I was never given the opportunity to give the burden of proof which is fundamental to a case.  But if you are at 0519, the report was before the ombudsman and other people, and as you look at 0519 you will see the Minister herself – sorry, I wanted to go to the letter of Anna Bligh which is on, sorry, 0537.  You will see that she says:

Thank you for you recent emails received on 13 July . . . I have also recently received a number of emails forwarded by Members of Parliament on your behalf.

Meaning, inquire, look into, and she did nothing.  If you go down further, on the next paragraph it says:

I am aware of the extensive correspondence and telephone conversations between you and officers within the Department.

Then she goes down further, fourth paragraph:

In June 2004, you were invited again to consider enrolling Gracia at Rosewood State School –

Why is that?  Why did she offer that in June 2004?  These questions have to be asked, except that by that time Gracia herself was the evidence, as she is today here in the Court.  She is sitting back there.  She was never met by the principal or Anna Bligh.  I was acting in the duty of care, to see that her education needs were met.  But in June there is an illusion here that they again invited, considering her, to enrol her in Rosewood State High School.  Why would they do that?  That is clearly discriminatory.  This is the Minister’s letter itself that was before Member Mullins, that is not addressed by Member Mullins, that is vigorously argued by me and vigorously and incorrectly submitted by Crown Law not to be before Member Mullins and not addressed. 

It was there, and this is my submission, it was there when I went to the Anti‑Discrimination Tribunal.  It is easy to see in these books here, which you can refer to, if there was a hearing, that it was submitted to Member Mullins and I vigorously argued it and that he did not address the main issue.  Then you see, as I have already referred to, they again, after the June report, after they have access to it, because by this time it had been before the Tribunal, and they also had a letter come back in here from the Department of Education’s legal officers still replying after they had receipt of that report that she could go back to primary school.

Until that letter, already referred to on page 1029 and 1028, that they are again saying when she is year 9 that she can go back to a primary school.  According to the Anti‑Discrimination Act the motive is irrelevant.  Whether she had that report or not, she is judged on her evidence to the law, and the law is in sections 38 and 39 that they will not discriminate.  If I take just summing‑up to the law you know it, it is 38 and 39 sections, and it says:

An educational authority must not discriminate –

(a)in failing to accept a person’s application for admission as a student; or

(b)in the way in which a person’s application is processed; or

(c)in the arrangements made for . . . 

(d)in the terms on which a person is admitted –

all these are in my written arguments:  Section 39:

An educational authority must not discriminate –

(a)in any variation of the terms of a student’s enrolment; or

(b)by denying or limiting access to any benefit arising from the enrolment . . . 

(c)by excluding a student; or

(d)by treating a student unfavourably in any way –

On the law, as Justice Kirby says, we ought to look to first before the judgments of the judges.  That is my case, your Honour.  Thank you for your time.

KIRBY J:   Yes, thank you very much.  The Court will adjourn briefly to consider the course that it will take in this application.

AT 11.54 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.58 AM:

KIRBY J:   In this matter the applicant, by her mother and next friend, complained that the Queensland Department of Education discriminated against her on the basis of her age.  She sought relief under the Anti‑Discrimination Act 1991 (Qld).

The Tribunal, established by section 38 of that Act, dismissed the application.  It did so on the basis that there was no evidence that the applicant had completed the relevant learning outcomes and that by the Education (General Provisions) Act 1989 (Qld) the Department was expressly required to take the question of age into account in providing education for the applicant.

In the Supreme Court of Queensland, the primary judge, Justice Helman, upheld an appeal which, under section 217(1) of the Anti‑Discrimination Act, was confined to a question of law raised by a particular Tribunal decision.  His Honour held that the applicant was entitled to have her enrolment in year 8 in a Queensland public school considered in the light of her subsequent performance in a private school where she had been enrolled by her mother.  The applicant seeks to have that decision restored.

However, the Court of Appeal of Queensland unanimously set aside this holding.  It did so on the basis that the primary judge had erred by not focusing on the “decision” that had been challenged in the Tribunal, namely the decision made by the Department of Education of Queensland in January 2004 and made on the evidence then before the Department.  That was the relevant reviewable decision before the Tribunal and thus before the courts of Queensland.  The legal correctness or otherwise of that decision by the Department could not, either in fact or law, be affected by subsequent events occurring in the private school thereafter.

The Court of Appeal’s decision was legally correct.  There are no reasonable prospects of success, were special leave granted by this Court to appeal to the Court.  The application for special leave must therefore be refused.

Mr Horneman‑Wren, I notice that in the Court of Appeal of Queensland no application was made for costs against the applicant.  I think the position may have altered, according to the application book, between that time and now.  Are you instructed on behalf of the State of Queensland to seek costs against the applicant, or not?

MR HORNEMAN‑WREN:   I am so instructed, your Honour.

KIRBY J:   Yes.  Now, Madam, the normal rule in this Court, and in courts throughout Australia, is if a party brings an application and loses the application, that party must bear the costs that are established by law of the other party who has been inconvenienced by being brought to the Court.  Is there any reason why that normal rule should not apply in your case?

MS MALAXETXEBARRIA:   I think, your Honour, I ask no costs for myself because of the high public interest and in the anti‑discrimination law there is the section 213, I think, which says if this matter is of important public interest, then no costs were awarded.  Member Mullins’ decision originally was no costs awarded.

KIRBY J:   Most of the cases that come before this Court are brought by people who think that they have a great public importance.  Nevertheless, the normal rule is that a party has to bear the costs if the party loses in this Court.

The application for special leave is refused.  The applicant must pay the costs of the respondent.

Adjourn the Court now until tomorrow morning, 1 October, at 10.15 am in Canberra.

AT 12.02 PM THE MATTER WAS CONCLUDED