Morris v Harness Racing New South Wales

[2024] NSWCATAD 129

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Morris v Harness Racing New South Wales [2024] NSWCATAD 129

Hearing dates:

29 – 30 January 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
Dr M Murray, General Member

Decision:

Application is dismissed.

Catchwords:

HUMAN RIGHTS — discrimination — on ground of marital status — qualifying bodies — provision of services — application to train horses.

Legislation Cited:

Anti-Discrimination Act 1977

Harness Racing Act 2009

Cases Cited:

Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; 48 NSWLR 462

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13

Bull & Anor v Hall & Anor [2013] UKSC 73, [2014] 1 All ER 919

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

James v Eastleigh Borough Council [1990] 2 AC 751

Purvis v New South Wales [2003] HCA 62; 217 CLR 92

Purvis v State of New South Wales (Department of Education and Training) [2002] FCAFC 106; 117 FCR 237

R (on the application of E) v Governing Body of JFS (Secretary of State for Children, School and Families, interested parties) (United Synagogue intervening) [2009] UKSC 15; [2010] 1 All ER 319

R v Birmingham City Council (ex parte EOC) [1989] IRLR 173 HL

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

Waterhouse v Bell (1991) 25 NSWLR 99

Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220

Category:

Principal judgment

Parties:

Robert Morris (Applicant)
Harness Racing New South Wales (Respondent)

Representation:

Counsel:
T Wong (Applicant)
K Richardson SC / B Smith (Respondent)

Solicitors:
Circle Bridge Legal (Applicant)
Cadre Moss Lawyers (Respondent)

File Number(s):

2023/00305440

Publication restriction:

None

REASONS FOR DECISION

The complaint

1. Mr Morris, the applicant, is the spouse of Kerry-Ann Morris (“Mrs Morris”). Together they have been involved in the business of stabling and training harness racing horses for a number of years.

2. On 3 May 2023, Harness Racing New South Wales (“the respondent”) determined to disqualify Mrs Morris from training horses for a period of 6 months. On 11 and 15 May 2023, Mr Morris made applications to the respondent to train some of the horses that Mrs Morris trained at the time of the disqualification. On 15 May 2023 the respondent declined Mr Morris’ application to train the horses.

3. Mr Morris brought a discrimination claim pursuant to s 44 and in the alternative s 47 of the Anti-Discrimination Act 1977 (NSW) (“the Act”) alleging that the respondent discriminated against him on the ground of marital status in the area of “qualifying body” or in the “provision of services”.

The Evidence

4. Mr Morris relied on his statement and the statement of his solicitor, Mr Peter Morris. The respondent relied on the statement of Mr Michael Prentice, Chief Integrity Officer of the respondent, and on business records associated with the transfer of the horses.

5. At the time of the alleged discrimination, Mr Morris was a holder of an unrestricted A Grade trainer’s licence which permitted him to train horses for harness racing in New South Wales. He and Mrs Morris were directors, shareholders and employees of a family business.

6. At 9.28 am on 15 May 2023, Mr Prentice sent an email to Mr Morris in the following terms:

Pursuant to HRNSW Policy attached and Australian Harness Racing Rule 120, your application to train the 3 horses mentioned below has been declined by HRNSW Stewards.

7. The acronym HRNSW Policy is a reference to the respondent’s policy on Transfer of Horses – Disqualified or Suspended Trainers Policy Statement 636.5 which we will refer to as the Policy. Clause 2 of the Policy stated:

2.1 For instances where a trainer has had their licence suspended or cancelled or in circumstances where a trainer is disqualified (disqualified trainer) HRNSW shall require that the following conditions be adhered to with respect to the transfer of horses:

(a) Any horse(s) in the care of a disqualified trainer shall not be transferred to a member of the disqualified trainer’s immediate family at any time during which the disqualified trainer’s licence is subject to a period of suspension, cancellation or disqualification, without the approval of HRNSW Stewards.

(b) any horses in the care of this qualified trainer shall be transferred to a trainer who does not train from the same property.

8. At 9.31 am on 15 May 2023, Mr Prentice sent an email to Mr Morris in the following relevant terms:

…records indicate this horse was trained by Mrs Morris from 3 October 2022 – This horse is unable to be transferred to you pursuant to AHRR 120 and the HRNSW Policy previously advised to you.

9. AHRR 120 is a reference to Australian Harness Racing Rules as at 15 December 2023. Rule 120 is titled Transfer from Disqualified Trainer, which we will refer to as the Rule. The Rule was in the following terms:

(1) A horse trained but not owned by a trainer whose licence has been suspended or cancelled or who is disqualified (in this rule called the disqualified person) is ineligible to race until it is transferred to the control of a licenced trainer.

(2) A transfer must be approved by the controlling body or stewards

(3) A horse which is trained by a disqualified person shall not without the approval of the stewards be transferred to an immediate family member or to a person whom the stewards determine is a close associate

(4) for the purpose of this rule:-

(a) An immediate family member means the following persons who are related to their disqualifying person

(i) Spouse defacto child parent sibling grandparent grandchild uncle aunt niece nephew cousin

(ii) Child parent sibling grandparent grandchild uncle aunt niece nephew or cousin of the disqualified persons spouse or defacto partner

(b) a close associate includes but is not limited to the following which may be an existing or prior:-

(i) Commercial relationship

(ii) Trainer owner relationship

(iii) Trainer breeder relationship

(iv) Employee employer relationship

(v) Co located registered training address

(5) The Controlling Body or Stewards may at anytime revoke the approval of a transfer if it or they form the view that the disqualified person is involved with or influencing the training of the horse.

(6) If a transfer is not approved or is revoked the horse is ineligible to race.

…

10. Mr Prentice obliquely stated in his statement that the basis of the decision to refuse the approval of the transfer of horses was made pursuant to the Policy and the Rule. He did not provide any details as to which parts of the Policy or Rule he relied on nor provide any details about his reasoning as to the application of the Policy or Rule or any information as to the decision making process.

11. During cross examination, Mr Prentice stated that the decision was made on three bases, all within the terms of the Rule and the respondent’s Policy. First, that Mr Morris was the spouse of Mrs Morris, making him a member of the “immediate family”, secondly, because he proposed to train the horses from the same property as they were previously trained by Mrs Morris and thirdly, because he was a “close associate” as he was in a commercial relationship with Mrs Morris.

12. Mr Prentice’s evidence was that he did not hold any concern about the propriety of Mr Morris. He did not consider whether Mr Morris as an individual would be suspectable to be influenced by Mrs Morris. Mr Prentice had no regard for the particular circumstances of Mr Morris other than as to how the Rule and the Policy applied.

13. Mr Prentice’s evidence was that the respondent applied the Policy and the Rule to all persons without making judgements about the personal qualities of the individual involved.

14. Mr Prentice stated that the policy was created because the organisation was concerned that a horse transferred from a disqualified trainer to her or his immediate family would give the appearance that the name of the trainer was changed at the gate but the original trainer was in effect essentially continuing. There were concerns that immediate family members were susceptible by their connection to the disqualified trainer to be influenced as they may be living together and communicating about a range of issues.

15. Mr Prentice also stated that closeness of the relationship was one of the issues; the other issues were the location of the horse, and of the trainer. Integrity was of paramount consideration to the respondent. There was a concern held by the respondent that if a person was permitted to train horses of a disqualified immediate family member there could be a community perception that there are no ramifications stemming from a disqualification.

16. Mr Prentice stated that he had applied the Policy many times and did discuss the overall situation of Mr Morris with Mr Bentley, the Steward. This was not purely because Mr Morris was the husband, but it was one of the reasons. Mr Prentice could not think of any reason why the applicant’s application would have been approved.

17. Mr Prentice stated that the respondent owns a property that has about 12 barns for 12 trainers and that there was an occasion where a disqualified trainer’s horse was transferred to a different trainer who continued to train the horse at a different barn on the respondent’s property. Mr Prentice denied that the respondent had ever agreed to transfer a horse trained on a private property to a different trainer to continue training the horse on the same property.

18. Mr Prentice denied that the respondent had made a decision to permit an immediate family member to take over training a horse because of disqualification since the operation of the Policy. His reasons included the respondent seeking to uphold integrity, and the public perception of integrity in the industry.

19. Mr Prentice’s evidence was that if Mr Morris moved to a different property and had cut commercial ties with Mrs Morris, he, together with Mr Bentley would still not approve the application as these two reasons were as important as the third reason which is that Mr Morris was an immediate family member of Mrs Morris.

Relevant legislation

20. Section 4 of the Act defines marital or domestic status to be a status or condition of being:

(a) single, or

(b) married, or

(c) married but living separately and apart from one's spouse, or

(d) divorced, or

(e) widowed, or

(f) in a de facto relationship.

21. The applicant’s status is ‘married’.

22. Section 39 is in the following terms:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital or domestic status if the perpetrator —

(a) on the ground of the aggrieved person's marital or domestic status or the marital or domestic status of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital or domestic status or who does not have such a relative or associate of that marital or domestic status, or

…

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's marital or domestic status if it is done on the ground of the person's marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status.

23. The applicant relied on s 39(1A) that the transfer of horses was refused on the ground of his status as being married, a characteristic that appertains generally to persons of that are married or a characteristic that is generally imputed to persons that are married.

24. It is not in contest that the respondent is a statutory body incorporated pursuant to s 4 of Harness Racing Act2009 (NSW) and is empowered to confer an authorisation or a qualification needed for the carrying on of the applicant’s horse training business within the meaning of s 44 of the Act. At the time of the alleged discrimination, Mr Morris was engaging in an occupation and/or carrying on a trade within the meaning of s 44 of the Act.

25. Section 44 states:

It is unlawful for an authority or a body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of marital or domestic status--

(a) by refusing or failing to confer, renew or extend the authorisation or qualification,

(b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or

(c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

26. Section 47 makes it unlawful for a person to discriminate against a person on the grounds of marital or domestic status by:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

The parties’ submissions

27. Mr Morris submitted that one of the reasons why the respondent refused to confer authorisation upon him to train the horses or in the terms it was prepared to confer the authorisation upon him to train the horses was because of his marital status. The applicant relied on the decision of the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 (“Waterhouse”). Mr Morris submitted that Mr Prentice, on behalf of the respondent, imputed that he was susceptible to be influenced by Mrs Morris but there was no consideration of individual characteristics and that the Tribunal ought to make an inference that the decision was made on marital status and characteristics of a married person; Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [79], [84]-[91].

28. Mr Morris submitted that paragraph 3 of the Rule did not prohibit the respondent from declining the application because the person was ‘an immediate family member’ or a ‘close associate’ but required the Stewards to approve the person based on an individual assessment. However, Mr Prentice applied the Policy and Rule as a ‘fixed stance’ because it acted on an assumption of a ‘characteristic that appertains generally to persons’ who are married or a ‘characteristic that is generally imputed to persons’ who are married that ‘they would be liable to be corrupted and/or influenced by their spouses and that their suitability to train horses would be compromised.’

29. Mr Morris submitted that the hypothetical comparator is not married, otherwise resides at the same property as a disqualified trainer and is the director and shareholder of a family company.

30. The respondent denied that the decision to refuse the authorisation was made on the ground of marital status. The respondent submitted that a decision based on the ‘identity or situation’ of one’s spouse was not a decision made on the ground of a person’s ‘marital or domestic status’ and relied on the decision in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 (“Reddrop”).

31. The respondent submitted that Mr Morris could not rely on the characteristic that appertains generally or is generally imputed to married persons in s39(1A) of the Act because the respondent’s decisions were grounded on a characteristic shared with all ‘immediate family members’ and ‘close associates’ and not married persons such as in Waterhouse.

32. In regard to the assessment of ‘less favourable treatment’ the respondent submitted that the comparison would be with persons who are other ‘immediate family members’ or ‘close associates’ and would be treated in the same manner as the applicant. The respondent submitted that an appropriate hypothetical comparator would be ‘a trainer who trained from the same property as Mrs Morris and or otherwise had a close personal or business relationship’.

33. The respondent submitted that paragraph 3 of the Rule set out the “default position that transfers to ‘immediate family member’ or to a ‘close associate’ are prohibited…” and applied “in a blanket fashion to all persons who had a close relationship with Mrs Morris…”.

Consideration

34. The material facts are not in dispute. While there was some dispute as to whether Mr Prentice used the words “because you are married to Mrs Morris” during a telephone conversation with Mr Morris, it is immaterial whether Mr Prentice used those words or not as the only way in which Mr Morris could be considered to be “an immediate family member” was because he was the spouse of Mrs Morris. This is not in dispute.

35. There is no dispute that at the relevant time when Mr Prentice made the decision (together with a Steward, Mr Bentley) he was aware that Mr Morris was the spouse of Mrs Morris.

36. The key issue argued in the Tribunal was whether the respondent’s decision to refuse the authorisation (also said to be refusal to provide services) was made on the ground of marital or domestic status within the extended meaning in s 39(1A), that is “a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status”. This raises two issues for consideration, first the identification of the ground on which the respondent acted and secondly if the ground was “marital or domestic status”, whether there was less favourable treatment. The respondent also contended that it was not required to provide services to the applicant within the meaning of s 47 of the Act.

37. Section 39 of the Act defines discrimination on the ground of marital or domestic status. In Waterhouse at 105G, Clarke JA described the provision as having two separate questions. The first component is ‘differential treatment’, and the second component is ‘on the ground’. The two questions can be dealt with separately or together, depending on the particular circumstances of the case. Tribunals and courts have in some cases found it more appropriate to deal with the two questions together, particularly where there is the use of a hypothetical comparator for the purpose of determining ‘differential treatment’. Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [65]; Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 at [242].

38. In Reddrop, the Court of Appeal determined that s 39 of the Act is directed to three specific situations. First, discrimination against a married person simply because she or he is married and for no other reason; secondly, discrimination against a married person because of some particular characteristic which the individual has and which all or nearly all married persons have; and thirdly, discrimination against a married person on the ground of some particular characteristic which married persons are generally believed to have whether or not they in fact have it: paragraphs 14G, 22C, 24E and 28D.

39. The Court of Appeal determined that s 39 of the Act did not extend to proscribe discrimination based upon the identity or situation of a person’s spouse: paragraphs 14D, 20G and 28E.

40. The facts in Reddrop were that Mrs Reddrop applied for a job with Boehringer Ingelheim Pty Ltd. Mrs Reddrop was not employed because her husband was employed by a competitor and the respondent feared that if it employed Mrs Reddrop she might disclose confidential information to her husband.

41. The Court of Appeal found that the respondent did not employ Mrs Reddrop because of her marital status or a characteristic that married people have or are believed to have but because of the identity or situation of her spouse. The Court accepted the respondent’s evidence, given by two witnesses, that any applicant who had a close relationship with an employee of a competitor would not have been employed.

34. Reddrop was affirmed by the Court of Appeal in Waterhouse and distinguished on the basis that, the Australian Jockey Club refused to provide Mrs Waterhouse with a horse trainer’s licence because it believed that all married women were suspectable to the corrupting influence of their husbands: 110B. Had the respondent acted because the applicant had a characteristic that was personal to her and not generally imputed to all married women it would have not breached the Act: 110D.

35. In Waterhouse, the Australian Jockey Club also asserted that it acted based on Rules. The relevant Rule set out in 101D stated that:

No horse shall be permitted to race which is wholly or partially owned or leased by such disqualified person or such person’s spouse, or in the winnings of which such disqualified person or such persons spouse has an interest.

44. As in this case, the respondent also relied on the fact that it acted because it had an interest and a responsibility to protect the horse racing industry and the betting public in general.

45. Unlike this case, in Waterhouse, the Australian Jockey Club had no concern about other immediate family members and was not concerned for example about the influence of a father in law. Clarke JA at 115E found that the defendant’s decision was grounded on the defendant’s view that the plaintiff’s application was to be rejected because she was married to Mr Waterhouse and being his wife was corruptible at his hands and was not grounded on the fact that she was simply in a close relationship with Mr Waterhouse.

46. Clarke JA also referred to with approval to a distinction made by Mahoney JA in Reddrop of a person being refused employment as a live-in cook because the person was married to another who was carrying but not suffering from the effects of typhoid and thus a source of infection to others. In this case the less favourable treatment was because of a certain characteristic, namely marriage to a typhoid carrier and not on the grounds either that he was married or that he had a characteristic generally appertaining or imputed on a married man.

47. In Bignell v New South Wales Casino Control Authority [2000] NSWCA 38; 48 NSWLR 462 the Court of Appeal stated at [9]-[10]:

9 To state a hypothetical case, the Authority may consider that it is relevant that the spouse of an applicant provide information about criminal convictions for dishonesty. The fact that such a spouse was living with the applicant at the time of the application could be a factor relevant to the applicant’s suitability. No doubt a conclusion taking account of this fact would be said not be a conclusion which amounted to discrimination against the applicant on the ground of marital status; compare Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 and Waterhouse v Bell (1991) 25 NSWLR 99 at 105 per Clarke JA. It would not be the applicant’s status or condition of being married but the applicant’s association with a person with a history of dishonesty that was relevant.

10 In substance, the appellant claims that by virtue of the provisions of Pt 4 Div 2 of the Anti-Discrimination Act 1977 (the AD Act), the Authority acted unlawfully when it refused her application for a special employee licence by discriminating against her on the ground of her marital status.

48. These statements were obiter dictum as the Court did not have before it a claim for determination that the Casino discriminated against Bignell. Rather it was considering whether such a claim could be made by Bignell in circumstances where a privative clause precluded a Tribunal to consider a claim of discrimination. The statements are instructive as they reveal the analysis the Court of Appeal undertook in considering the difference between an applicant’s status of being married and characteristics that appertain or are imputed on the one hand and the characteristic of the applicant’s spouse, which is a key issue in play in this claim.

49. In Purvis v State of New South Wales (Department of Education and Training) [2002] FCAFC 106; 117 FCR 237 the Full Federal Court stated at [34]:

It is not correct to assume that taking a comparator with a similar history of behaviour will never reveal discrimination. In fact, taking such a comparator is calculated to reveal whether the conduct of the alleged discriminator is as a result of prejudice because of the particular disability. Assume that a person with a schizoid personality is expelled from a rugby club because he was sent off twice in a season for violent play. It would be unhelpful to compare that actual situation with a hypothetical example of a player who had never been sent off for violent play during his whole career. Of course such a person would not be expelled. If that comparator is taken, a false positive reading of discrimination would result. The true comparison is to ask what had happened (or would happen) to players with a similar record. If history had shown that they had been (or would be likely to be) expelled, that would deny discrimination. If not, discrimination would be revealed, absent a convincing explanation of the differences in treatment on behalf of the club. This is consistent with the reasoning of Wilcox J in Tate v Raffin [2000] FCA 1582 at [66]-[68]. The discussion of discrimination by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, particularly at 106-108, is illuminating as to the need to focus on the real ground for the conduct alleged to be discrimination. The “Typhoid Mary” example given by Mahoney JA in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 21 (discussed by Clarke JA in Waterhouse at 115F) is also instructive in that respect.

50. As the Full Federal Court stated in Purvis and upheld on appeal by the High Court in Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (“Purvis”), the need is to focus on the real ground or reason for the conduct alleged to be discrimination.

51. The differential treatment question requires a factual inquiry as to whether the applicant was treated less favourably than a person of a different marital status was or would have been treated in the same circumstances or in circumstances which are not materially different.

52. The identity of the hypothetical comparator must identify the same or similar circumstances in which the respondent acted. The situations being compared must be that, apart from the marital or domestic status, the situation of the applicant and another person are in all respects the same or not materially different.

53. We find that an appropriate comparator is a trainer who trained horses from the same property as a disqualified trainer and or otherwise had a close personal or business relationship to the disqualified trainer.

54. We are satisfied, based on the largely undisputed evidence of Mr Prentice that the respondent would not have permitted an application from such a person as the hypothetical comparator to train horses who were at the time being trained by a disqualified trainer at any time during which their licence was subject to a period of suspension.

55. Ultimately, it is not material whether the respondent applied or misapplied the Policy or Rule it believed it was required to uphold. The question is whether there has been a breach of s 39 of the Act, a breach of the Act may well occur even where a person is following a Policy. Evidence of compliance with a Policy does not diminish a person’s responsibility to comply with the Act.

56. The Tribunal finds, based on the evidence before it, that the respondent acted not because the applicant was a spouse but because he fell within the definition of ‘immediate family’ as well as for the other two reasons the respondent gave. The assumptions Mr Prentice made about the applicant were the same or similar assumptions he made about all other members of ‘immediate family’. It was not put to Mr Prentice that he imputed a characteristic on Mr Morris that he would not have imputed on a different person within the ‘immediate family’ group.

57. We accept the respondent’s submission that Mr Prentice would have refused the applicant’s application whether he was a father, a husband, a brother or any other member of Mrs Morris’ ‘immediate family’.

58. We reject the applicant’s submission that an inference is open on the evidence that the respondent acted on the applicant’s marital status and characteristics that appertain generally to persons of that marital status or a characteristic generally imputed on married persons because there was no evidence on which such an inference could be grounded.

59. The characteristics that were imputed on the applicant were the same as those that were imputed on all members of the ‘immediate family’ and were not imputed because of the marital status.

60. The applicant had to prove on the balance of probabilities that the marital status was at least one of the “real”, “genuine” or “true” reasons for the treatment: Purvis at [224] (Gummow, Hayne and Heydon JJ). Mr Morris had to prove that he was treated less favourably in the same circumstances or in circumstances that are not materially different than the respondent treated a person who was not a married person. Based on the material before the Tribunal we are not satisfied that he was treated less favourably in the same circumstances or in circumstances that are not materially different than the respondent treated a person who was not a married person.

61. The applicant submitted that the respondent cannot mask over the fact that the respondent’s decision was because the applicant was in the wider group of “immediate family member” to deny its liability. It was submitted that had Mr Morris not been the spouse of Mrs Morris, he would not be considered to be an “immediate family member”.

62. The applicant pointed to the discussion of the decision in James v Eastleigh Borough Council [1990] 2 AC 751 (“James") referred to by Clarke JA in Waterhouse at 107-108 to submit that the ground was marital status and not immediate family.

63. The decision in James highlighted the question of whether what one is looking for is the defendant’s reason for doing an act whether it is the policy or motive or intention or the causative effect of the act done by the defendant. The majority in the House of Lords took the view that the relevant question was “would the complainant have received the same treatment from the defendant but for his or her sex?” at 108A. Clarke JA stated that at the time, the majority decision in James must be taken as settled law in England but “the question remains an open one in this country”: paragraph 108B.

64. Since the decision in Waterhouse, the High Court in Purvis without finally determining the matter, gave guidance that the causation question is not ‘but for’ but is ‘but why’. Gleeson CJ at [13] rejected the ‘but for test’:

Similar considerations arise in respect of the related issue of identifying the ground of the first respondent's action, which is to be considered in the light of both s 5 and s 10 of the Act. The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. It is the school authority that is the alleged discriminator, and it is the reason or reasons for action of the responsible officers of the school authority that is or are in question. It is their conduct that is to be measured against the requirements of the Act. If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people. (footnotes removed)

65. Gummow, Hayne and Heydon JJ did not determine the causation test but after referring to the decision in James at [235] stated at [236]:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability.  Rather, the central question will always be – why was the aggrieved person treated as he or she was?  If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability?  Motive, purpose, effect may all bear on that question.  But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

66. McHugh and Kirby JJ dissenting in the decision but not on this point said at [142] that the correct test was a search for the real reason or ground and not the “but for” test.

67. McHugh and Kirby JJ undertook an assessment of the law in England following the decision in James at [149]-[156] and concluded that the more recent authorities have moved away from the “but for” test to the “but why” test by considering the mental processes of the alleged discriminator.

68. In 2009 the Supreme Court of the United Kingdom in R (on the application of E) v Governing Body of JFS (Secretary of State for Children, School and Families, interested parties) (United Synagogue intervening) [2009] UKSC 15; [2010] 1 All ER 319 five judges out of the nine upheld the judgment of the Court of Appeal on the issue of direct discrimination.

69. Lord Phillips cited Lord Goff’s judgement in James and stated at [16]:

This "but for" test was another way of identifying the factual criterion that was applied by the Council as the basis for their discrimination, but it is not one that I find helpful. It is better simply to ask what were the facts that the discriminator considered to be determinative when making the relevant decision.

70. At [20] Lord Phillips explained that whether there has been discrimination depends on whether the criterion applied as the basis for discrimination and the motive is not relevant. That is, an objective test is required as to whether a person without the attribute would have received the same treatment.

71. Lord Clarke at [136] adopted the “but for” test applied in R v Birmingham City Council (ex parte EOC) [1989] IRLR 173 HL and in the James case.

72. Lady Hale at [64] applied the “but why” test by considering what caused the treatment in question not what the motive or purpose of the treatment.

The distinction between the two types of "why" question is plain enough: one is what caused the treatment in question and one is its motive or purpose. The former is important and the latter is not. 

73. In Bull & Anor v Hall & Anor [2013] UKSC 73, [2014] 1 All ER 919, the Supreme Court of the United Kingdom while unanimously dismissing the appeal were divided as to whether the discrimination was direct or indirect.

74. Lady Hale held that the discrimination was direct. Lord Kerr and Lord Toulson agreed with Lady Hale. Lord Neuberger held that the discrimination was indirect. Lord Hughes agreed with Lord Neuberger.

75. Lord Toulson explicitly applied the “but for test” in determining causation at [71]:

The question was objective: would the Claimant in that case have received the same treatment as his wife but for his sex? Transposed to this case the question becomes: would the Claimants have received the same treatment as married heterosexuals but for their sexual orientation?

76. The question of causation in discrimination law in the United Kingdom remains unsettled with instances of “but for” and “but why” assessments being applied, unlike the position in Australia.

77. Based on the authority in Purvis at [13], [142] and [236], the relevant inquiry is, why, on an objective basis, the respondent acted. Was it because of or by reason of that person’s status or attribute? Motive, purpose and effect of the treatment may bear on the question of causation but does not replace the centrality of the question of why.

78. The applicant’s submission that the respondent acted on the ground of marital status because “but for” his status as a married person he would not have been included in the category of “immediate family” category is rejected.

79. If the less favourable treatment was established, causation is assessed by asking “why” the less favourable treatment occurred. We have found that the less favourable treatment was not established but if we are wrong on this point, we find that that the less favourable treatment did not occur because of Mr Morris’ marital status. Put another way, the marital status was not the reason for the respondent’s treatment of Mr Morris. We accept on the material before the Tribunal that the reason why the respondent declined Mr Morris’ application to train the horses was because Mr Morris was considered to be an “immediate family” member. The specific nature of the relationship between Mrs Morris and Mr Morris was immaterial as to why the respondent acted, as the respondent acted because Mr Morris was an “immediate family” member and not because he was Mrs Morris’ spouse.

80. The applicant has not established that he was treated less favourably or that the less favourable treatment if established was on the ground of his marital status.

81. We make the following order:

1. Application is dismissed.

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

Registrar

Decision last updated: 16 May 2024