Nicholls and Nicholls v Director General, Department of Education and Training (No 2)

[2009] NSWADTAP 20

Appeal Panel - Internal

CITATION:	Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
PARTIES:	APPELLANTS David Nicholls Donna Nicholls RESPONDENT State of New South Wales (Department of Education and Training)
FILE NUMBER:	089049
HEARING DATES:	18 December 2008
SUBMISSIONS CLOSED:	13 February 2009
DATE OF DECISION:	1 April 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	Victimisation, meaning of ‘on the ground that’
DECISION UNDER APPEAL:	David and Donna Nicholls v State of New South Wales (Department of Education and Training)
FILE NUMBER UNDER APPEAL:	051038 and 051039
DATE OF DECISION UNDER APPEAL:	05/16/2008
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Sex Discrimination Act 1984 (Cth) Disability Discrimination Act 1992 (Cth)
CASES CITED:	Barghouthi v Transfield Pty Ltd [2002] FCA 666 XYZ v State Trustees Limited & Anor [2006] VSC 444 Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 Purvis v State of New South Wales (2003) 217 CLR 92 Haines v Leves (1987) 8 NSWLR 442 IW v City of Perth (1997) 191 CLR 1 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 14 ALR 1 Re Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 27 ALR 321 Penhall-Jones v State of New South Wales [2007] FCA 925 Obieta v NSW Department of Education & Training [2007] FCA 86 Huang v University of NSW [2008] FMCA 11 Waterhouse v Bell (1991) 25 NSWLR 99 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3K v K [2000] NSWSC 1052
REPRESENTATION:	APPELLANTS In person RESPONDENT E Brus, counsel
ORDERS:	1. Leave to appeal against the merits of the Tribunal’s decision is refused 2. The Tribunal’s order that ‘The complaints of victimisation are dismissed’ is set aside 3. In substitution for that order, the following order is made: a) The complaints of victimisation in relation to claims 3, 4, 6, 7, 9 and 12 in the first complaint and the claims relating to the transfer in the second complaint are dismissed b) The complaints of victimisation in relation to claims 1, 2, 5, 8, 10, 11 and 13 in the first complaint and the claims relating to the ‘vexatious allegations’ in the second complaint are remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.

Introduction

1 Mr and Ms Nicholls have appealed against the Tribunal’s decision dismissing their complaints of race discrimination and victimisation under the Anti-Discrimination Act 1977 (NSW) (AD Act). The couple, who are both Aboriginal, were teachers at Dubbo North Public School (DNPS). The Tribunal summarised the circumstances that led to the discrimination and victimisation complaints at [2] of its decision:

The Nicholls claim that throughout 2002 they became increasingly isolated within the school. This isolation culminated in a petition signed by most of the staff, including two deputy principals, accusing them of unprofessionalism and disloyalty. They contend that the Department provided them with no assistance to resolve this impasse and as a consequence their position at the school became untenable. In addition, they point to a number of decisions made by the Principal, Heather Borneman, such as refusing to allow Mr Nicholls to attend the District Sports Carnival and preventing Ms Nicholls from completing a course in the school’s reading recovery program. They claim that these alleged actions constitute unlawful discrimination and victimisation. They also claim that the decision to transfer them out of DNPS was unreasonable and made without their consent.

2 Although the respondent is identified in the Tribunal’s reasons as State of New South Wales (Department of Education and Training), as Mr and Ms Nicholls were employees of the Department, the correct respondent is the Director General of that Department: AD Act, s 4B(1)(a).

Nature of Appeal

3 Appeal accepted out of time. The Tribunal handed down its decision on 16 May 2008, but Mr and Ms Nicholls did not lodge an appeal until 7 July 2008, more than 28 days later. Despite the late lodgement, the Appeal Panel accepted the appeal: Nicholls & Nicholls v State of New South Wales (Department of Education and Training) [2008] NSWADTAP 63.

4 Appeal on question of law and merits. A party may appeal against a decision of the Tribunal on any question of law and, with leave, on the merits of the decision: Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) s 113(2). Mr and Ms Nicholls appealed on a question of law. They did not tick the box on the Notice of Appeal indicating that they wished to seek leave to appeal against the merits of the Tribunal's decision. Despite that, it was apparent from the material filed and from discussions during the hearing that they did wish to seek that leave. After hearing from the Department, we decided to extend the time for the appellants to lodge an appeal against the merits of the Tribunal's decision: ADT Act s 113(3). We gave short reasons for that decision on the day of the hearing.

5 Mr and Ms Nicholls identified numerous alleged factual errors and omissions they said the Tribunal had made. They filed a significant amount of material in support of their appeal. To the extent that this material contained evidence not before the Tribunal, we have not taken it into account. We will consider the question of leave after determining whether the appeal on a question of law should be upheld.

Appeal on question of law

6 After examining the Tribunal's decision and the material filed by the parties, the Aappeal Ppanel expressed a preliminary view that the Tribunal may have made an error of law not identified by the appellants in their Notice of Appeal. The Appeal Panel has a duty to ensure, as far as possible, that self-represented parties are not disadvantaged. That duty includes identifying a legal error in the Tribunal’s decision: Barghouthi v Transfield Pty Ltd [2002] FCA 666; XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. Mr and Ms Nicholls’ complaint of victimisation under s 50 of the AD Act, required them to prove that ‘on the ground that’ they had made complaints and allegations which would amount to a contravention of the AD Act, various teachers at the school victimised them. The possible error concerns the way the Tribunal interpreted and applied the phrase ‘on the ground that’ in s 50 of the AD Act. We made directions for the Department and the Nicholls to file written submissions on that point. The Department filed submissions but Mr and Ms Nicholls chose not to do so.

Tests for causation in victimisation and discrimination complaints

7 Both the provision making victimisation unlawful and the provisions making discrimination unlawful use the words ‘on the ground’ as the test of causation. Section 50, relating to victimisation, states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. [Emphasis added.]

8 Four elements must be satisfied before a complaint of victimisation can be substantiated. Firstly, the complainant must have done one of the things listed in s 50(1)(a) to (d). Secondly, the respondent must have caused the complainant to experience something. Thirdly, the complainant must have suffered some consequential ‘detriment’. Fourthly, that detriment must have occurred ‘on the ground that’ the complainant did one of the things listed in s 50(1)(a) to (d): Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986. The element under consideration in this decision is the fourth element, causation.

9 In relation to complaints of discrimination, the AD Act requires that the treatment by the perpetrator be ‘on the ground of’ the person’s attribute, for example, race: AD Act, s 7. The relevant part of s 7 states that:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) 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 race or who has such a relative or associate of a different race… [Emphasis added.]

10 Where there is more than one ground for the treatment, s 4A explains that it is sufficient if one of the grounds or ‘reasons’ for the treatment is a discriminatory reason even if it is not the dominant or a substantial reason.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

11 Section 4A is not expressed as applying to complaints of victimisation.

12 First victimisation complaint. The Nicholls lodged two victimisation complaints. In the first they alleged that they had satisfied the terms of s 50(1)(c) because they had ‘alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act.’ The nature of the allegation was said to be that they (either on their own behalf or through the Aboriginal Student Support and Parental Awareness (ASSPA) committee) had alleged that Aboriginal children at the DNPS had been discriminated against. The Tribunal described these allegations by saying that throughout 2001 and 2002, the Nicholls were active members of the ASSPA committee. The committee made numerous allegations including that the school had misused funds and re-deployed teaching resources earmarked for Indigenous students. Many of the allegations related to Ms Jenny Munroe, the Aboriginal Education Assistant (AEA).

13 The Tribunal concluded at [65] that:

65 Some of the matters about which the Nicholls and the ASSPA Committee made allegations could, if proven, amount to a contravention of the Act, or more specifically as ‘pleaded’ in the Amended Points of Claims, ‘unlawful discrimination by the respondent against children at DNPS’. These include:

The allegations that Aboriginal students had been denied access to certain educational programs including services provided by the Aboriginal tutors and the AEA;

Some of the allegations about Ms Munroe. In particular, those allegations that she devoted time to assisting non-Indigenous students at the expense of Indigenous students;

The allegations concerning the eviction of the Aboriginal tutors on the basis that they constituted an allegation that Aboriginal students were taught in sub-standard accommodation.

14 The Tribunal accepted that the allegations in the first complaint, which it referred to as the ‘subject allegations’, were within s 50(1)(c) of the AD Act and went on to find that 11 of the 13 instances of victimisation in the first complaint constituted a ‘detriment’. (Claims 1, 2, 5, 6, 7, 8, 9, 10, 11 and 13.) The Tribunal then considered the fourth element, causation, and found that none of the alleged detriments were ‘on the ground that’ Mr or Ms Nicholls had made the subject allegations.

15 Second victimisation complaint. In the second complaint the Nicholls alleged that they had been victimised on eight further occasions as a result of making the first complaint to the Anti-Discrimination Board. The alleged detriments related to a decision to forcibly transfer the Nicholls to another school and passing on to authorities at that school a ‘vexatious complaint’ from Ms Willcockson relating to an altercation with Mr Nicholls. In relation to these complaints the question is whether the detriment was on the ground that they had lodged the first complaint with the Anti-Discrimination Board.

16 In relation to the second complaint, the Tribunal found that both the allegations relating to transferring the Nicholls to other schools and the so-called vexatious allegations constituted a detriment but concluded that the detriment was not ‘on the ground’ that the Nicholls had lodged the first complaint with the Anti-Discrimination Board.

17 Tribunal’s interpretation of ‘on the ground that’. The Tribunal discussed the meaning of the term ‘on the ground that’ at [69] and [70] of the decision:

The words ‘on the ground of’ are critical to the operation of section 50(1). Guidance as to what is meant by that phrase is to be found in those cases that considered its meaning in the context of discrimination on substantive grounds before the 1994 amendment to the Act that inserted section 4A took effect. (Section 4A of the Act provides that where an offending act is done for more than one reason and one consists of unlawful discrimination, the act is taken to have been done for that reason. It has no application to section 50). The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] notes that before the 1994 amendment, two approaches were generally followed. The first required a determination of whether the unlawful conduct constitutes a ‘significant factor’ in the decision- making process (see O'Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second required a determination of whether one of the ‘real or operative’ grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at page 106.) More recently in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43], the following approach was adopted: ‘it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred’.

Applying the approach taken in Sivananthan , the question to be asked is: did the petitioners prepare and present the petition because the Nicholls had alleged that the Department had unlawfully discriminated against children at DNPS. [Emphasis added.]

What does ‘on the ground that’ mean in discrimination complaints?

18 Same words, same meaning? The test of causation is expressed as ‘on the ground of’ for discrimination complaints and ‘on the ground that’ for victimisation complaints. It is a general rule of statutory construction that where the legislature uses the same words, or essentially the same words, in different provisions, the intention is that those words should have the same meaning: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 per Hodges J. Consequently, contrary to the respondents’ submission, the meaning of ‘on the ground of’ in relation to discrimination complaints is relevant when interpreting the phrase ‘on the ground that’ for complaints of victimisation.

19 Possible meanings. There are at least two ways in which courts and tribunals both here and in the United Kingdom have interpreted the phrase ‘on the ground of’ in relation to complaints of discrimination. The first is the ‘but for’ test and the second is the true basis or real reason test. One of the differences between the two tests is that the ‘but for’ test is an objective or strict liability test where the motives or intentions of the alleged perpetrator are not relevant: Bernardi G, “Direct Discrimination in the Disability Discrimination Act”, The Australian Law Journal, vol 76, p 512 at 514. When applying the ‘true basis’ test, the decision maker may have regard to the perpetrator’s motives and intentions: Purvis v State of New South Wales (2003) 217 CLR 92 at 163.

20 The ‘but for’ test. When applying this test the decision maker asks whether ‘but for’ the particular attribute (sex, race, disability etc) the person would have been subjected to the treatment or conduct. A simple illustration of this test is provided by the case of Haines v Leves (1987) 8 NSWLR 442. In that case the Court of Appeal held that a complaint of sex discrimination by a female student at a single sex school was substantiated because she was not given access to the same subjects as a male student attending a nearby single sex school. The Court said that ‘but for’ the sex of the female student she would not have been treated less favourably than the male student was treated. The lack of any intention or motive to discriminate was held not to be relevant. In the context of the Nicholls’ first victimisation complaint, the question would be whether ‘but for’ the fact that they made the subject allegations they would have been subjected to the various detriments they outlined.

21 In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ saw some utility in the ‘but for’ test where the alleged discriminator is not an individual but a collection of individuals or a corporate body. In that case, the High Court was considering the disability discrimination provisions of the Equal Opportunity Act 1984 (WA) which is in similar terms to the AD Act including a provision equivalent to s 4A. The City of Perth Council rejected an application for planing approval for a drop in centre for people with HIV. Of the 25 members of council who voted, 13 voted against the application and 12 voted in favour, so that a change in one of the negative votes would have changed the outcome. Of the 13 councillors who opposed the drop-in centre, five were found to have voted on the basis of the ‘AIDS factor’. The majority (Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ) rejected IW’s submission that the Council had discriminated against him on the ground of his impairment and dismissed the appeal. Toohey and Kirby JJ dissented. Toohey J said at p 31 that as long as the discriminatory factors were one ground for the decision, even if not the principal ground, the decision would contravene the legislation. His Honour added at p 32 that while the ‘but for’ has been rejected as a definitive test for causation, it may provide some guidance in circumstances where, as in this case, a corporate body is the decision maker:

In the present case each Councillor in the majority determined the outcome by the vote he or she cast. If one or more of these Councillors voted on an impermissible ground, whether or not that was “the dominant or substantial reason” (s 5) that vote determined the outcome because the result would have been different ‘but for’ the vote of that Councillor.

22 Gummow J came to the same conclusion at p 47:

Where, as in this case, the Council, as the executive organ of the City, exercised its powers as responsible authority to refuse the application in circumstances where, but for the ground relevantly animating five of the thirteen majority councillors, the decision would not have been made, s 66K applies. [Emphasis added.]

23 Kirby J went further saying at p 64, that the ‘but for’ test was the ‘correct test’. In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, the Tribunal when considering a complaint of victimisation, adopted the ‘but for’ test for causation set out by Kirby J. At [43], the Tribunal made the following observation:

Kirby J considered this broad issue of causation in IW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the West Australian Equal Opportunity Act 1984. We adopt his language: it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of race discrimination, “had a real causative effect in the sense that but for its presence the act complained of would not have occurred” [Emphasis added.]

24 The Tribunal in the present case adopted this test at [69] of its reasons.

25 The ‘true basis’ test. Two years after the Tribunal handed down its decision in Sivananthan, the High Court had another opportunity to consider the test of causation in relation to complaints of discrimination. In Purvis v State of New South Wales (2003) 217 CLR 92 (Purvis), a student with brain damage was excluded from a high school because of aggressive behaviour including hitting and kicking. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ) decided the appeal in favour of the State of New South Wales on the basis of the differential treatment or comparator element of discrimination (less favourable treatment than the treatment the perpetrator gave or would have given to a person without that attribute). Although interpreting the words ‘because of’ rather than ‘on the ground of’ the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the ‘true basis’ (per Gleeson CJ at 102), ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for that treatment.

26 In a joint judgement with McHugh J, Kirby J re-visited passages in IW v City of Perth (1997) 191 CLR 1 referring to the ‘but for’ test at p 143.

It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a "but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this Court in Banovic and Waters was "the correct test". In IW v City of Perth , however, the references to the "but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes.

The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.

27 The majority in Purvis (Gummow, Hayne and Heydon JJ) did not refer to the ‘but for’ test. Their Honours adopted the ‘true basis’ test and emphasised that the motive or intention of the alleged perpetrator may be relevant.

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” (at p 163).

28 Conclusion. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.

What does ‘on the ground that’ mean in victimisation complaints?

29 Express reference to one matter. There is a general rule of statutory construction that an express reference to one matter indicates that other matters are excluded: Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 14 ALR 1. This assumption may be rebutted where it is not in accordance with the intention of the legislature. For example, in Re Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 27 ALR 321, the High Court rejected a submission that a reference in a provision to the public interest when exercising a discretion meant that the public interest was not relevant when exercising another discretion where the public interest was not mentioned. We consider that the same approach should be adopted when interpreting s 50. The fact that s 4A is not expressed to apply to complaints of victimisation does not necessarily mean that ‘on the ground of’ should be given a different meaning in s 50.

30 However, Buchanan J in Penhall-Jones v State of New South Wales [2007] FCA 925, gave those words a different meaning. His Honour held at [69] that s 10 of the Disability Discrimination Act 1992 (Cth) (DDA) (the equivalent to s 4A of the AD Act) does not affect the meaning of s 42 (the equivalent of s 50 of the AD Act):

However, that provision does not . . . bear upon the meaning to be attributed to the phrase ‘on the ground’ in s 42. Section 10 does not address the assessment of grounds or reasons which form part of an act of victimization, but only acts of discrimination in an earlier part of the Act in which s 10 appears. Section 10, therefore, does not establish, in favour of Ms Penhall-Jones’ case, any proposition that existence of one of the conditions for the engagement of s 42 might be an insubstantial reason. [Emphasis added.]

31 Buchanan J went on to set out the test of causation in victimisation complaints under the DDA:

. . the ground or reason relied upon to establish a breach of the relevant legal obligations need not be the sole factor but it must be a substantial and operative factor . . . It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. [Emphasis added.]

32 The Federal Court has applied the same test in relation to the victimisation provision in the Sex Discrimination Act 1984 (Cth): Obieta v NSW Department of Education & Training [2007] FCA 86 at [240]; Huang v University of NSW [2008] FMCA 11 at [120].

33 In our view, Buchanan J’s observation that the ground or reason ‘must afford a rational explanation, at least in part, “why” an action was taken’ is correct. The formulation of the test in that way is consistent with the High Court’s formulation of the test for causation in discrimination complaints in Purvis. However, by requiring that the reason must be ‘substantial’ Buchanan J formulated a different test from that in discrimination complaints. The point of difference is that even if a reason was one of the grounds for imposing the detriment, a victimisation complaint will not be substantiated unless that reason is a ‘substantial’ reason.

34 The decision of the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 made it clear, even before the enactment of s 4A, that any reason which contributed, even in part, to the ultimate treatment or conduct, should be regarded as a reason for the purposes of determining whether there has been a contravention of the legislation. Clarke JA (with whom Kirby J and Hope JA agreed) expressed that view in the following way at p 106:

In the event, however, that the Tribunal decides that there are two

grounds for the action or decision one which does and one which does not fall within s 39(1) then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example marital status. The fact that there was another ground for the discriminatory action is, in this context, of no importance. Once there is a finding that marital status was a ground of the discriminatory action then it follows that “on the ground of marital status” A treated B less favourably.

35 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 (Shaikh), at 78,986, the Tribunal said that:

We note that s 4A does not impact on the victimisation provision, so that the cases dealing with the phrase before this amendment which took effect in 1994 still have relevance to s 50(1). We adopt the phrase “an operative ground” referred to by Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at 105 as a practical test for the application of this element of the statutory provision. We keep in mind the exhortation of the judge to the Tribunal in that case to focus on the search for the “real ground”, not forgetting the possibility that there may be more than one ground in the decision under scrutiny.

36 The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words ‘on the ground of’ an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.

37 Conclusion. Throughout its reasons, the Tribunal applied the ‘but for’ test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. It remains for us to consider whether the Tribunal’s formulation and application of the test led it to make findings it would not or might not have made had it applied the correct test: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ.

Tribunal’s application of the ‘on the ground that’ test

38 In relation to the first complaint, the Tribunal determined 13 allegations of victimisation. Only in claims 1, 2, 5, 6, 7, 8, 9, 10, 11 and 13 was causation an issue.

39 Claim 1 – the Petition. Twenty members of staff signed a petition against the Nicholls and gave it to Mr Nicholls on 18 September 2002. It said, in part:

We are writing to you as united members of Dubbo North Public School Staff, who take pride in working in a professional and loyal manner.

We acknowledge that you have felt hurt about some past events. However, we are disappointed and upset about the disloyalty you have shown to both the staff with whom you work and to the school, which your children attend. In particular we refer to your conversations with the parents and the general community about your perceptions of the staff and their actions.

This is unprofessional.

We request that you cease this behaviour, which is demoralising to the staff unity and is damaging the reputation of this school with the local community.

40 Eight of the signatories gave evidence to the Tribunal. It appears that there were some 18-20 signatories. After discussing the evidence, the Tribunal concluded at [86] to [89] that:

86 There is some evidence to indicate that some signatories saw the Nicholls’ part in championing the constellation of allegations that loosely could be described as the ‘ASSPA allegations’ as the cause of the disharmony within the school. Given the serious imputations carried by these allegations, it is implausible that they played no role in the division among staff.

87 That said, the evidence does not in our view support a finding that most staff saw those allegations as the main cause of the division within the school. Rather it seems to us that the petitioners were motivated to act for a diversity of reasons, some of which had no connection with the subject allegations. To the extent that it is possible to identify a dominant reason, it seems to us that it was the perceived mistreatment of Ms Munroe and, to a lesser extent, other staff. Many of the petitioners believed that Mr Nicholls had relentlessly attacked a colleague, and in doing so had overstepped the mark. To a person they sided with Ms Munroe. It may be that Ms Munroe was unduly sensitive to criticism, or staff concern was coloured by concern for her health or, that some or all of the complaints about her were justified but whatever the truth, the consensus of opinion was that Mr Nicholls’ treatment of Ms Munroe was unacceptable and a major source of friction within the school.

88 We accept as argued for the Nicholls that some staff saw the funding allegations as a ‘major event’ within the school. However, the evidence does not in our view support a finding that this was a uniformly held view. The evidence indicates that some staff had only, at best, a peripheral knowledge of the allegations. It is to be recalled that the complaint to ICAC was not made until some 18 months after the issue of the petition.

89 It is notoriously difficult to identify the main or dominant reason a large number of people decided to take a particular course of action. This case is no exception. The evidentiary burden of establishing that it was because they had made allegations that the Department, its officers or staff, had ‘discriminated against children at DNPS’ lies with the Nicholls. Having carefully considered the evidence, we are not satisfied that on the material before us that that was the case.

41 The Tribunal found that the ‘ASSPA allegations’ caused ‘disharmony’ or ‘division’ among the staff, but not that those allegations were a reason for signing the petition. The Tribunal was not satisfied that the subject allegations were the main or dominant reason for signing the petition. In our view, that was not the correct question.

42 Claim 2: Failure to take steps to resolve dispute/propose mediation. The Nicholls alleged that the failure of those in authority to offer mediation following the presentation of the petition constituted victimisation. The Nicholls wrote to all the signatories of the petition recommending mediation. The Tribunal found that:

131 We agree with the proposition put for the Nicholls that the failure of the Department to intervene meant that their departure from DNPS was inevitable. We accept that the subject allegation was one of the reasons Mr Cavanagh and Ms Borneman failed to act. However we could not be comfortably satisfied that this was ‘real or operative’ reason for the inaction or that, put another way, ‘but for’ these allegations the Department would have at least attempted to resolve the dispute.

132 Accordingly, this part of the complaint is dismissed.

43 Having made a finding of fact that the subject allegation was one of the reasons Mr Cavanagh and Ms Borneman failed to act, the Tribunal erred by applying the ‘but for’ test.

44 Claim 5: Intimidation by staff. The Tribunal records at [145] that:

On 14 February 2003, a notice was placed on a staff notice board inviting staff to attend a dinner at a local restaurant and to indicate their interest by placing their name on a list. Within 24 hours of the Nicholls putting their names on the list, five names were removed.

45 The Tribunal went on, at [151]:

151 It might be that one of the reasons staff withdrew from the dinner was because the Nicholls had made the subject allegations. However, for essentially the same reasons we gave at paragraphs [67] – [89] of these reasons we are not satisfied that, but for those allegations, the names would not have been removed.

152 Accordingly, this part of the complaint is dismissed.

46 When deciding that it was not satisfied as to the claim made by the Nicholls, the Tribunal erred by applying the ‘but for’ test.

47 Claim 6: Nicholls prevented from raising issues concerning their children’s education with school. The Nicholls alleged that Ms Borneman had failed to investigate in a timely manner a complaint that the school had not provided an adequate education for their son. The Tribunal found that:

156 From the evidence before us, it is not possible to say whether, as claimed, Ms Borneman did not properly investigate the complaint. But even if we were to accept that she dealt with the complaint in a perfunctory manner, we could not be satisfied that the reason for doing so was because the Nicholls had made the subject allegations.

48 There is no error in the Tribunal’s reasoning or conclusion in relation to this claim. Although the Tribunal expressed a view on the issue of causation, it did not need to do so because the Tribunal was not satisfied that Ms Borneman failed to properly investigate the complaint. That amounts to a finding that there was no detriment and justifies that part of the complaint being dismissed.

49 Claim 7: Removal of Ms Nicholls as reading recovery teacher. The background to this claim is at [158] – [160]:

158 In 2002, Ms Nicholls commenced a two-year reading recovery course sponsored by the School. She claimed that mid-way through the course Ms Borneman terminated her enrolment without consultation. On Ms Nicholls’ account, she first learnt of that decision in August 2002 when asked by the reading recovery tutor why she would not be continuing. Ms Nicholls claimed that she promptly raised the issue with Ms Borneman who confirmed that she had decided to enrol Ms Munroe in the course in 2003. Ms Nicholls conceded that she did not ask Ms Borneman directly if she was to be replaced and left the conversation having decided that, to avoid further confrontation, it was best that she relinquish her position.

159 According to Ms Borneman, she had never intended to replace Ms Nicholls. On her account, she put in a bid for training a second teacher after hearing that additional funding might become available and nominated Ms Munroe who had expressed interest in moving into a teaching role.

160 Under cross-examination, Ms Borneman said she could not recall how she came to learn that Ms Nicholls might not be continuing in the course. On her account, she recalled that Ms Nicholls had told her at various times that she found the course ‘a bit much’ because of family and teaching responsibilities, a claim Ms Nicholls strenuously denied.

50 The Tribunal set out its conclusions at [161] to [162]:

161 Findings and conclusions The best evidence is that on learning that Ms Munroe was to be enrolled in the reading recovery course, Ms Nicholls concluded that she had been replaced and rather than confront Ms Borneman decided not to continue with the course. Ms Borneman did not attempt to persuade her to change her mind.

162 While this incident provides one of a number of examples of the poor relationship that had developed between Ms Borneman and Ms Nicholls in the later part of 2002, we cannot be satisfied on balance that Ms Nicholls’ enrolment was terminated by Ms Borneman or that the reason for failing to encourage Ms Nicholls to remain in the course was because she had made the subject allegations.

51 Conclusion. There is no error in the Tribunal’s reasoning or conclusion in relation to this claim. Again, although the Tribunal anticipated what its view would have been on causation, the issue did not arise because the Tribunal was not satisfied that Ms Borneman terminated Ms Nicholls’ enrolment. This amounts to a finding that there was no detriment and justifies that part of the complaint being dismissed.

52 Claim 8: Principal ignored Ms Nicholls’ teaching preferences and Claim 9: Ms Nicholls not provided with teaching support. The background to these claims is at [164] to [170]:

164 As was usual practice in late 2002, all teachers at DNPS were invited to nominate three preferred classes for the following year. Ms Nicholls was allocated a composite Year 1/2 class, which was not one of her choices. She was the sole teacher not to be allocated one of their preferred classes in 2003.

165 Ms Nicholls claimed that this was the first time in her teaching career that she had not been allocated one of her class choices. No evidence was led to contradict that claim.

166 According to Ms Borneman, Ms Nicholls was appointed to teach the 1/2 class because in her opinion she was best placed to do so because of her skill and experience. She stated that, in her opinion, the other available teachers, Ms Ann Long and the causal teacher who would be replacing her if she continued as relieving Principal, were better placed to teach what she believed to be the less challenging straight Year 1 and 2 classes. This arrangement, Ms Borneman argued, enabled Ms Nicholls to mentor Ms Long and support the casual teacher.

. . .

Claim 9: Ms Nicholls not provided with teaching support

169 In 2003, Ms Nicholls was not allocated any ‘class support’ that is, support from teaching aides, Aboriginal tutors or the Learning Support Teacher. As a consequence, she enlisted support from parents. While the help was welcome, in Ms Nicholls’ opinion it was not ideal. Ms Nicholls claimed that she could not recall any instance of class support not being allocated to an infant class at DNPS.

170 Ms Borneman claimed the reason support was not provided was because resources were limited and priority had to be given to classes with the greatest need. She argued that Ms Nicholls’ class did not have the same need for support as it was made up of the more academically able students and that this had been explained to Ms Nicholls.

53 The Tribunal’s conclusion is at [172]:

172 On the grounds of Ms Borneman’s explanation for not giving Ms Nicholls at least one of her class preferences or any teaching support are plausible. The allocation of classes required various factors to be taken into account including the skills, experience and interests of individual teachers and the needs of students. However, as the evidence reveals, the management of DNPS was generally able to balance those factors and at the same time accommodate staff preferences. In regard to teaching support, like any state primary school, the teaching resources in DNPS were finite.

173 We note that, on the evidence, both of these decisions ran contrary to established practice.

174 Ms Borneman’s hands were not tied in respect of either decision. She had discretion and chose to exercise it in a way that was unfavourable to Ms Nicholls. It is possible that in the mix of factors taken into account in making those decisions, Ms Borneman’s exasperation with the Nicholls came into play. Even if that were the case, for the reasons given at paragraphs [119]-[132] of these reasons, we could not be satisfied that had it not been for the subject allegations the offending decisions would not have been made.

54 The Tribunal made no finding as to whether the subject allegations contributed to these decisions, saying only that it was ‘possible’ and concluding that they were not satisfied that ‘but for’ those allegations the offending decisions would not have been made. In our view, the Tribunal erred by not making a finding and by applying the ‘but for’ test.

55 Claim 10: Mr Nicholls prevented from attending School Sport Carnival. Ms Borneman refused Mr Nicholls’ request to attend the 2002 annual Dubbo District School Sports Carnival as the teacher representative. The Tribunal said at [187]:

187 As noted we believe by late 2002, Ms Borneman was not well disposed to Mr Nicholls for a number of reasons. We could not be satisfied however that had it not been for Mr Nicholls’s part in the subject allegations, that he would have been included in the DNPS delegation to the Carnival.

188 Accordingly, this part of the complaint is dismissed.

56 By framing the question to be determined in the ‘but for’ style, the Tribunal asked itself the wrong question.

57 Claim 11: Mr Nicholls allocated to teach a class where Aboriginal students had been ‘clustered’. The background to this claim is set out at [189]:

189 Mr Nicholls claims that the decision to cluster a large number of Aboriginal students and students with learning difficulties in his class constitutes unlawful discrimination and victimisation.

. . .

58 The Tribunal’s findings about ‘detriment’ appear at [194] to [195]:

194 Detriment We understand that Mr Nicholls identifies the detriment as first, the segregation of Aboriginal and non-Aboriginal students and second, the difficulties of teaching a class with a large number of students with learning difficulties.

195 As a first step to establishing a claim under section 50, Mr Nicholls must establish that he was subjected to a detriment. While he might be correct that Indigenous students were disadvantaged by being clustered together, it is unclear how this subjected him to a detriment. On the other hand, teaching a large number of students with learning difficulties self evidently makes teaching difficult, and in our view constitutes a detriment.

59 The Tribunal’s conclusion as to causation appear at [196]:

196 On the grounds of For the reasons as given, we could not be satisfied that the reason Mr Nicholls was given some of the less academically capable students was because of the subject allegations. Ms Borneman provided a cogent and plausible explanation for her decision. There is no evidence to contradict her claim that it was common practice for the ‘better’ students to be placed ‘up’ in the composite class. While Mr Nicholls might have suffered a detriment, it could also be said that Ms Haylock had her own difficulties managing a composite class.

197 We could not be satisfied that had it not been for the subject allegations Mr Nicholls would not have been allocated the students placed in his class. Accordingly, this part of the claim is dismissed.

60 In relation to this claim the Tribunal erred by applying the ‘but for’ test and suggesting that ‘the reason’ needs to be the subject allegations, rather than making it clear that the subject allegations need only be one of the reasons for the detriment.

61 Claim 13: Mr Nicholls intimidated by teachers observing his class. The background to this complaint is set out at [202] to [210]:

202 Mr Nicholls claims that the decision of two teachers, Ms Lloyd and Ms Hetterick, to sit in on his class without invitation on 19 March 2003, constitutes victimisation. The teachers claim that the sole reason they did so was to assist a student who was in the process of being integrated into a mainstream class.

203 Headed by Ms Lloyd, the Unit for Emotionally Disturbed Children was referred students identified as having problems with school. In 2002, a student who we refer to by the pseudonym, Student A, was a member of a small class established by the Unit designed to assist students unable to participate in a mainstream class develop strategies to manage their behaviours.

204 In late 2002, the Unit decided that Student A was ready for an integration trial. It was planned that he would attend Mr Nicholls’ class, initially for one hour a week. On the first day of the trial he was disruptive and poked another student with a pencil.

205 Following this incident, Mr Nicholls contacted the Teachers Federation and received advice to the effect that he was not obliged to accept the student if he believed he posed a risk to other students. When Ms Hetterick accompanied Student A to Mr Nicholls’ class the following week, Mr Nicholls told her that he believed the child was not ready for integration and passed on the advice given by the Federation. On his account the conversation was courteous and professional. Ms Hetterick gave a very different account and claimed that when she arrived she was confronted by Mr Nicholls who criticised her management of Student A in strong terms. She reported this incident to her supervisor, Ms Lloyd, in tears. Ms Lloyd lodged a formal complaint with Ms Borneman.

206 The following week, Ms Lloyd accompanied Ms Hetterick and Student A to Mr Nicholl’s class. On his account, after entering the class without knocking, Ms Lloyd announced, ‘we are here to observe your teaching’. He claimed that when he asked them to leave, Ms Lloyd said again in front of the class, ‘you feel threatened by me don’t you?’ He said he asked Ms Lloyd to step outside and when she proceeded to speak to him in a loud and threatening voice he asked a student runner to find Ms Borneman and request that she to attend ASAP.

207 Ms Lloyd and Ms Hetterick gave a very different account. They claim they knocked before entering and after seating Student A went quietly to the back of the classroom. On their account, Ms Lloyd explained they were there to support Student A and, when questioned, reassured Mr Nicholls they were not there to observe his teaching. They claim as the exchange continued outside Mr Nicholls became increasingly agitated. Mr Nicholls claimed it was Ms Lloyd who became agitated.

62 The Tribunal’s conclusion in relation to causation are set out at [213] to [215]:

213 On the grounds of Ms Lloyd, as noted, was a signatory to the petition and by attending as proxy for Mr Rawson at ASSPA meetings had first hand knowledge of many of the allegations made by the Committee and Mr Nicholls’ involvement in the Committee. Ms Hetterick, who identifies as Aboriginal, had not signed the petition and had only a passing knowledge of it.

214 Ms Lloyd’s decision to attend the class was in part motivated by her poor opinion of Mr Nicholls and her belief that he might once again confront Ms Hetterick. Her explanation that she was there to support Student A is only partially accurate - she was also there to ‘protect’ her junior colleague from a repeat of the earlier week. Ms Lloyd knew or should have been aware that Mr Nicholls felt under siege following the events of the previous year. Through Ms Hetterick, she knew that he had concerns about the integration trial and not unreasonably concluded that he might raise those issues again during Student’s A next visit. In that context, the decision to accompany Ms Hetterick without notice was in our view a serious error of judgement.

215 It may be that Ms Lloyd’s concern about how Mr Nicholls might react on a return visit from Ms Hetterick was in part influenced by the subject allegations. Likewise, her concern might have been influenced by her view of the treatment meted out to Ms Munroe. We could not be satisfied that had it not been for the subject allegations she would not have accompanied Ms Hetterick and Student A to Mr Nicholls’ class.

63 The Tribunal failed to make a finding as to whether Ms Lloyd’s decision to accompany Ms Hetterick to Mr Nicholls’ class was on the ground of the subject allegations. The Tribunal also erred by applying the ‘but for’ test.

64 Second complaint. In a second complaint to the Anti-Discrimination Board, the Nicholls alleged that they had been victimised on eight further occasions as a result of making the first complaint to the Board. In relation to these complaints the question is not whether the detriment was on the ground that they made the subject allegations, rather it was whether the detriment was on the ground that they had lodged a complaint with the Anti-Discrimination Board.

65 Claims relating to transfer. There were four alleged ‘detriments’ relating to a decision to transfer Mr and Ms Nicholls to positions in a different school. They were:

The decision to transfer them without consent or negotiation;

The dismissal of their transfer;

The refusal to grant Ms Nicholls a compassionate transfer to the same school as her husband; and

The decision not to allow Ms Nicholls apply to transfer to a school where there was a vacancy.

66 The Tribunal’s reasoning in relation to the causation issue is at [231] to [235]:

231 Reason for the conduct To succeed in their complaint of victimisation the Nicholls must establish that they were subjected to a detriment because they had lodged a complaint with the Anti-Discrimination Board.

232 Mr Cavanagh had been named in that complaint and when the offending decisions were made he knew that it had been lodged. As stated, we believe by 2002 Mr Cavanagh was not well disposed to the Nicholls. While the 2003 complaint is unlikely to have improved his view of them, it does not necessarily follow that he decided not to return them to DNPS because of it. He had before him the opinion of Mr Urry and the Nicholls’ rehabilitation provider both of whom recommended that they not return to DNPS. Mr Urry made it clear that, in his opinion, the breakdown in relationships at the school was irretrievable. By 2004, for all practical purposes, three options were available to Mr Cavanagh - transfer the Nicholls to another school; transfer the 20 petitioners out of DNPS or return the Nicholls to the school and risk a return to the events of 2002/2003. In those circumstances it was not surprising that Mr Cavanagh made the decision he did. We are not satisfied that the reason he did so was because the Nicholls had lodged a complaint with the Board.

233 There is no evidence that Ms McDiarmid, the officer who reviewed Mr Cavanagh’s decision, was aware of the complaint lodged with the Board. Even if she was, there is no direct evidence or evidence to support the inference that she made the decision she did because the complaint had been lodged.

234 In respect of the decision not to grant Ms Nicholls a transfer on compassionate grounds there is no evidence to contradict that given by the respondent witnesses that throughout the relevant period the only two vacancies that arose in the Dubbo area were at the schools to which the Nicholls were transferred.

235 For these reasons, we are not satisfied that the offending decisions were made on the grounds that the Nicholls lodged a complaint with the Board in August 2003.

67 These passages disclose no error in the Tribunal’s interpretation or application of the test for causation in victimisation complaints.

68 Claims relating to ‘vexatious allegations’. The background to these complaints appears at [236] to [239]:

236 In August 2004, an altercation occurred on the main street of Dubbo involving Mr Nicholls, Ms Munroe and Ms Willcockson. Ms Willcockson and Ms Munroe reported to police they had been verbally abused by Mr Nicholls. Ms Willcockson also reported the matter to Ms Borneman. Mr Nicholls strenuously denied those allegations. No charges were laid.

237 A month later Mr Nicholls claimed that Ms Willcockson made a fist at his wife and when he asked her to desist, abused him. This is denied. Ms Willcockson claimed that it was Mr Nicholls who had been abusive. Ms Willcockson made a further report to Ms Borneman.

238 Mr Nicholls claims that Mr Cavanagh and Ms Borneman passed on Ms Willcockson’s ‘vexatious complaint’ to Greg Shortis, the Principal of Dubbo Central, the school to which he had been transferred. Mr Cavanagh and Ms Borneman both deny speaking to Mr Shortis. Their respective claims are inconsistent with Mr Shortis’ evidence and the complaint evidence given by Mr Nicholls and are not accepted by us.

239 After these incidents, Mr Cavanagh wrote to Mr Nicholls and drew his attention to the Department’s Code of Conduct. He claims he wrote to Ms Willcockson in similar terms.

69 The Tribunal’s findings in relation to causation are set out at [240] to [242]:

240 Findings and conclusions While the evidence does not support a finding that Mr Shortis acted on the allegations, it is plain, given their serious nature, that they had the potential to be damaging to Mr Nicholls especially given he was then new to Dubbo Central. Neither Mr Cavanagh nor Ms Borneman attempted to investigate the truth or otherwise of the allegations. As their subsequent conduct indicates, both tacitly accepted that Mr Nicholls was the offending party. In our view, the passing on of an unsubstantiated report in these circumstances constitutes a detriment.

241 This incident provides yet another example that despite their claims to the contrary, both Ms Borneman and Mr Cavanagh had a very poor opinion of Mr Nicholls. Their actions, in this instance, showed a lack of professional detachment.

242 It is not enough for Mr Nicholls to prove that by this time Mr Cavanagh and Ms Borneman had a set against him. It falls to him to establish that one or both subjected him to the detriment of informing his supervisor and in Mr Cavanagh’s case, sending him a letter of caution, because he had complained to the Board. As previously stated, we believe that there were many reasons why Mr Cavanagh and Ms Borneman were not well disposed toward Mr Nicholls. However, we are not satisfied that the substantive reason they gratuitously passed on the allegations to Mr Shortis was because Mr Nicholls had lodged a complaint with the Board.

70 The Tribunal erred in formulating the test as requiring the reason to be the substantive reason.

Findings

71 We have found that the Tribunal made an error of law in relation to Claims 1, 2, 5, 8, 10, 11 and 13 and the so-called vexatious allegations. In our view, the Tribunal should have asked the question as formulated in [37] of these reasons. If the Tribunal has asked itself that question it may have lead to a different conclusion in relation to one or more of these Claims. The appropriate order is to remit these matters to the Tribunal to be determined again by making the necessary findings and applying the ‘true basis’ or ‘real reason’ test. We consider that course preferable to extending the appeal to the merits of the Tribunal’s decision and determining the matter ourselves because we would have to hear the evidence again or base our findings on the documentary evidence and the transcript. The Tribunal at first instance is in a better position than us to determine the issues having heard the oral evidence. There is no need for the parties to adduce any further evidence before the Tribunal unless the Tribunal considers it to be in the interests of justice to do so.

Leave to extend appeal to merits?

Principles. Mr and Ms Nicholls also applied for leave for the appeal to be extended to the merits of the Tribunal’s entire decision because of alleged factual errors and omissions they said the Tribunal had made. In making this application, there is no need for the Nicholls to first identify an error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The ADT Act provides no guidance as to the circumstances in which the Appeal Panel should grant leave. In Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3 the Appeal Panel gave some examples of where it may be appropriate to do so. At [151] the Tribunal said that where ‘an appellant could point to some blatant and important error of fact which called for remedy by an Appeal Panel in the interests of justice’, or where the appeal ‘could be shortly and conveniently disposed of by turning directly to the merits of the decision under appeal, without having to address the frustrating technical distinction between error of fact and error of law’ it may be appropriate to give leave. Further guidance can be found in the decision of K v K [2000] NSWSC 1052 where Young J at [15] said that where a tribunal has gone about the fact-finding process in ‘such an unorthodox manner or in a way which is likely to produce an unfair result’ it may be in the interests of justice for the appellate body to review those findings.

72 We asked Mr and Ms Nicholls, when making submissions on whether we should grant leave, to focus on the most significant factual errors that the Tribunal had, in their submission, made. In particular, we asked them to focus on alleged errors that they say could have made a difference to the Tribunal's final conclusions. They identified over 20 such errors. We have reviewed those alleged errors and concluded that none of the matters raised by the Nicholls justify extending the appeal to the merits of the Tribunal’s decision.

73 Alleged omissions and errors. The first alleged omission or error can be easily explained. The Nicholls said that they did not know where the claim that they had alleged that Aboriginal children had been discriminated against came from. Mr and Ms Nicholls were represented by a lawyer at the Tribunal hearing but represented themselves on appeal. They may not have realised that the claim was made in the Amended Points of Claim document at paragraphs 2A, 3A, 4A, 4D, 6A, 7B, 8A, 8C, 10A, 11A, 12A, 14B, 15B, 16B and 17B. It was one of the ‘subject allegations’ referred to in [65] and [66] of the Tribunal’s decision.

74 A second alleged error, which requires some explanation, relates to Claim 4 in the first complaint of victimisation. The Nicholls said that throughout Term 4 of 2002, they received an unusually large number of unsolicited advertisements for teaching positions outside DNPS. They provided copies of four such advertisements. They said in their statements that only they received these advertisements as they had checked other teachers’ pigeonholes and noted that no –one else was receiving them. Mr Nicholls said that Mr Cavanagh told him that all schools in the Dubbo region had been provided with these advertisements. The Nicholls checked with Ms McNaboe, an Aboriginal teacher at another school in Dubbo, who said that she did not receive any of the four advertisements that Mr and Ms Nicholls said that they had received. The Tribunal records that when Ms McNaboe gave evidence she advised that she had not received the same volume of advertisements as the Nicholls. Ms McNaboe also said that she had been teaching for two years. Ms Borneman’s statement records, at paragraph 71, that “Some positions require that the applicants be of Aboriginal or Torres Strait Islander background.” The Tribunal recorded Ms Borneman’s evidence in the following terms:

Ms Borneman does not dispute that unsolicited advertisements were provided to the Nicholls but denies any sinister motives. She claimed it was her practice to alert staff to any Departmental vacancy they might be eligible to apply for. She claimed that it was not unusual for the number of advertised positions to be higher at the end of the school year than at other times. On her account, some positions specified Aboriginality as a mandatory selection criterion and this would explain why the advertisements provided to the Nicholls were not distributed to all staff.

75 In cross-examination, Ms Borneman said that she distributed advertisements to all eligible staff as she had been instructed that that was the procedure to be followed. She said it was likely that more advertisements would be distributed towards the end of the year when jobs become available for the next year. She agreed that she had not specifically denied Mr and Ms Nicholls allegations in her statement. (Transcript 21/3/07 at p 13 – 15.)

76 The Tribunal concluded that:

141 A detriment ? No doubt by the end of 2002, Ms Borneman would have been relieved if the Nicholls had accepted positions outside the school. It does not follow however that providing unsolicited advertisements constitutes a detriment.

142 There is no evidence to contradict the claim that it was common practice for internal vacancies to be brought to the attention of eligible staff. That the advertisements were not widely distributed is not surprising given that as agreed Aboriginality was a mandatory or desirable criterion for many of the advertised positions. That Ms McNaboe did not receive the same volume of advertisements as the Nicholls is inconclusive given that many of the positions called for greater experience than she possessed at the time.

143 There is no evidence that the vacancies were invented to entice the Nicholls out of DNPS. Nor is there any evidence that the Nicholls were penalised or subject to any adverse treatment because they did not apply.

144 That the Nicholls viewed the advertisements as yet another example that they were unwelcome in DNPS is not surprising given the events, which had transpired, in the latter part of the school year. However, we are not satisfied that the provision to the Nicholls of unsolicited advertisement constitutes a detriment.

77 The Nicholls disagreed with the Tribunal’s finding at [142] that “as agreed Aboriginality was a mandatory or desirable criterion for many of the advertised positions.” Of the four advertisements attached to Mr Nicholls statement, two required an “understanding of and sensitivity to the needs of Aboriginal and Torres Strait Islander students.” We are not able to determine on the basis of the documentary evidence, whether the other two positions had a similar requirement or some other requirement. Ms Borneman’s evidence was that advertisements where Aboriginality was a mandatory requirement were only distributed to Aboriginal staff. We agree with the Nicholls that, contrary to the Tribunal’s finding, it was not “agreed” that for many of the positions Aboriginality was a mandatory or desirable criteria.

78 The Tribunal has not made an error of law in preferring Ms Borneman’s evidence, that she distributed advertisements to all eligible staff, to the Nicholls’ evidence that they were singled out for special treatment. Nor has the Tribunal gone about its fact finding process in an unorthodox or unfair manner. That is not to say that the Nicholls’ observations about the lack of advertisements in other teachers’ pigeon holes were incorrect. However, the Tribunal was satisfied that the absence of advertisements from other teachers’ pigeon holes was explicable for reasons including Ms Borneman’s views as to the eligibility of other staff to apply for those positions.

79 The Tribunal also found that the fact that “Ms McNaboe did not receive the same volume of advertisements as the Nicholls is inconclusive given that many of the positions called for greater experience than she possessed at the time.” Mr and Ms Nicholls submitted that there was no evidence to support the Tribunal's finding Ms McNaboe did not receive “the same volume” of advertisements. Rather, Ms McNaboe’s statement said that she did not receive any of these advertisements and she is Aboriginal. However, Ms McNaboe agreed in cross examination that having only been a teacher for 2 years she would not have been eligible to apply for positions as Principal or Assistant Principal. Again, we are not satisfied that the Tribunal made an error of law in deciding that the receipt of the advertisements did not constitute a detriment to Mr or Ms Nicholls. Neither does the way the Tribunal went about its fact finding process warrant granting leave to extend the appeal to this aspect of the Tribunal’s decision.

80 The remaining alleged fact-finding errors and omissions can be divided into the following categories (references are to paragraphs of the Tribunal’s decision):

a) instances where the Tribunal was not exhaustive in its recounting of the full factual history of Mr and Ms Nicholls experiences at DNPS ;

Examples include:

(i) the Tribunal’s failure to refer to all the circumstances that prompted Mr and Ms Nicholls to complain to the Independent Commission Against Corruption (ICAC) [22]; and

(ii) that Ms Borneman knew about the petition before it was delivered to the appellants but failed to prevent it from being delivered [54].

The Tribunal noted at [12] that:

:

12 Not surprisingly, given that the complaints encompass numerous incidents alleged to have occurred over an eighteen month period and involve many people, we have had tendered to us a large volume of documentary evidence and heard a large amount of oral evidence. We have taken all evidence and all submissions into account. In the interests of reasonable economy and because we think that not all the material and arguments bear directly on the questions to be determined, we propose to refer only to those matters we regard as salient features of the case.

b) instances where the Tribunal may not have been entirely accurate in relation to factual matters but where the inaccuracy made no difference to the Tribunal’s decision

Examples include:

(i) at [145]-[147] where Tribunal said 5 people had removed their names from a list when Mr and Ms Nicholls say the actual number was 13.

c) instances where the Tribunal allegedly failed to record evidence which contradicted other evidence but where that failure made no difference to the Tribunal’s decision:

Examples include:

(i) at [37] where the Tribunal failed to record that the documentary complaint in evidence (HB4) did not make a complaint about being called a coconut and the Tribunal did not record that Ms Munroe subsequently withdrew that complaint;

(ii) at [112] where the Tribunal referred to Mr Urry’s evidence that the appellants did not mention race discrimination at the 9 April 2003 but failed to refer to the appellants’ evidence about what was said;

(iii) at [80] where the Tribunal failed to mention that none of the signatories to the petition gave examples of disloyalty;

(iv) at [84] where Tribunal failed to say that Mr Cavanagh’s submission to the Minister mentioned that the appellants are of Aboriginal descent; and

(v) at [206] where the Tribunal failed to record that Ms Hetterick agreed with Mr Nicholls’ version of the conversation.

d) where the Tribunal accepted evidence with which the appellants disagreed;

Examples include:

(i) at [37] and [215] where the Tribunal characterised the relationship between Mr Nicholls and Ms Munroe as being conflictual when Mr Nicholls said it was not.

e) instances where the Tribunal refers to ‘some’, ‘most’ or ‘many’ where the evidence did not support that description :

Examples include:

(i) at [87] where the Tribunal says ‘Many of the petitioners believed that Mr Nicholls had relentlessly attacked a colleague . . .’;

(ii) at [72] where the Tribunal said that ‘all believed that the Nicholls, mainly Mr Nicholls, was largely to blame’;

(iii) at [74] where the Tribunal said ‘Most Petitioners nominated the treatment of Ms Munroe as a key concern’ when the reference should only have been to those of the petitioners who gave evidence not to all the petitioners; and

(iv) at [196] where the Tribunal said ‘some of the less academically capable students’ when the appellants say that not ‘some’ but 26 out of the 28 students were in that category.

81 These examples were all matters of degree and detail which were either not relevant to an issue in dispute or, even if relevant, would not have affected the Tribunal’s findings. It was apparent from their submissions the Nicholls are anxious for the Tribunal to record a detailed and accurate history of their activities at the DNPS. Although we can understand their concern, the Tribunal's role is to identify the issues in dispute and to make findings of fact or law in relation to those issues. It is not the Tribunal’s role to comprehensively record every significant event that occurred during the period covered by the complaint.

82 Mr and Ms Nicholls were also understandably concerned about any negative comments about them in the decision. The Tribunal itself did not come to any negative view of them and stated at [15] that, ‘It is not in issue that the management of DNPS and their colleagues considered Mr and Ms Nicholls to be competent, dedicated and hard-working teachers.’ Any negative comments about Mr or Ms Nicholls in the decision are merely a record of the evidence given by witnesses. The Tribunal needs to record that evidence even if it portrays the Nicholls in an unfavourable light. The Tribunal also recorded, for example, Mr Nicholls’ denial that he called Ms Munroe a coconut. All parties were given an opportunity to refute the evidence of others and the recording of negative or unfavourable allegations is unavoidable.

Orders

1. Leave to appeal against the merits of the Tribunal’s decision is refused.

2. The Tribunal’s order that ‘The complaints of victimisation are dismissed’ is set aside.

3. In substitution for that order, the following order is made:

a) The complaints of victimisation in relation to claims 3, 4, 6, 7, 9 and 12 in the first complaint and the claims relating to the transfer in the second complaint are dismissed.

b) The complaints of victimisation in relation to claims 1, 2, 5, 8, 10, 11 and 13 in the first complaint and the claims relating to the ‘vexatious allegations’ in the second complaint are remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.