Obieta v Australian College of Professionals Pty Ltd - [2014] NSWCATAD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAD 8
Hearing dates: 6, 7 and 8 March 2013, 23 and 24 May 2013, 31 July 2013
Decision date: 04 February 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: R J Perrignon Senior Member
J McClellan General Member
N Hiffernan General Member
Decision:
1.The complaints of discrimination on the grounds of race are dismissed.
2.The complaints of victimisation are dismissed.
3.The applicant is to pay the respondent's costs of the proceedings as agreed or assessed

Catchwords: Direct discrimination on the grounds of race; whether comparators available; whether differential treatment occurred on the grounds of race;
Victimisation; whether detriment suffered; whether on the grounds of race
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Obieta v Australian College of Professionals Pty Ltd [2012] NSWADT 2008
Category: Principal judgment
Parties: Lina Socorro Obieta (Applicant)
Australian College of Professionals (Respondent)
Representation: Counsel: C O'Neill (Respondent)
Solicitors:
L Obieta (Applicant in person)
Wotton & Kearney (Respondent)

File Number(s): 121008

REASONS FOR DECISION

On 13 July 2011, Ms Obieta complained to the Anti Discrimination Board that the respondent, which owns and runs a private educational institution called The Australian College of Professionals ("the College"), had discriminated against her on the grounds of her sex and race (Filipino), while she was enrolled in two Certificate IV courses at the College. They were Property Services (Real Estate) and Property Services (Business Broking). Successful completion of each course was necessary, though not sufficient, to obtain a real estate agent's licence and a business broking agent's licence from the relevant licensing authority respectively.

Those complaints were referred to this Tribunal.

On 12 October 2012, Deputy President Hennessy determined an application for summary dismissal of the complaints: Obieta v Australian College of Professionals Pty Ltd [2012] NSWADT 2008. The Deputy President dismissed summarily the complaint of sex discrimination, because it did not disclose a contravention of the Anti-Discrimination Act 1977. She dismissed the complaint of victimisation in part, in respect of allegations that two speakers from the real estate and business broking industries, who were scheduled to speak on 16 December 2010, were cancelled, and, secondly, that the graduation proposed for 17 December 2010 was also cancelled.

However, the Deputy President declined to dismiss the complaints of race discrimination in respect of eight allegations. She also declined to dismiss the complaint of victimisation, so far as it constituted an allegation that, after making a complaint of discrimination to Mr Sullivan on 9 December 2010 (Incident 8 above), she suffered detriment in three ways, which were summarised by the Deputy President as follows.

After the course was finished, Ms Obieta received the Student Assessment Outcomes and Acknowledgement of the course modules for her signature. Ms Obieta alleges that the Directors, Mr and Mrs Sullivan, intentionally did not assess her final examination questions in the Property Management module and excluded the Property Management module from the list of modules assessed in the final examination.

The College intentionally did not assess Ms Obieta's Business Broking Module Assessment on two occasions and excluded it from the Business Broker Module Student Assessment Outcomes document.

The College failed to award the two qualifications which she successfully completed when Ms Obieta refused to sign the Student Assessment Outcomes document.

On 13 November 2012, the Applicant filed Amended Points of Claim, seeking damages of over $600,000, well in excess of the jurisdiction of the Tribunal. The Amended Points of Claim contained the following allegations of race discrimination. They are in substance the same events as were dealt with by the learned Deputy President, save that comments alleged to have been made in relation to the applicant's handwriting are alleged to have occurred on two occasions, rather than one.

Incident 1: When taking the class on 29 November 2010, Mr Compton first asked students to introduce themselves. Ms Obieta told the class about her background. Mr Compton then conducted an 'in class' assessment. Mr Compton asked the entire class to stand up. He then asked questions and whoever gave the correct answer first could sit down. Ms Obieta says that regardless of whether the answers were right or wrong, Mr Compton allowed male and female students who answered a question to sit down. Although Ms Obieta gave correct answers, Mr Compton did not acknowledge that they were correct. Ms Obieta was left standing with the "bully male students". All male students except the leader of the "bully males" were told to sit down and Ms Obieta was left standing with the leader of the male bullies. Ms Obieta felt that something was not right and that Mr Compton had intentionally left her standing. Ms Obieta then sat down without being told she could do so.

Incident 2: On 3 December 2010, Ms Obieta asked Mr Sullivan about the balance in the trust ledger, saying, "The balance is debit?" Mr Sullivan responded by saying, "Why don't you stand up here and you teach?"

Incident 3: On 3 December 2010, Ms Obieta asked Mr Sullivan for the type of account for the chart of accounts of the clients. Mr Sullivan said, "Sales" and then asked Ms Obieta if that was right. Ms Obieta said, "No". Mr Sullivan then went to the front of the class and said, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head."

Incident 4: On 3 December 2010, Mr Sullivan criticised Ms Obieta's work without checking it and would not teach her the procedures for Trust Accounting.

Incident 5: On 3 December 2010, Mr Sullivan came over to where Ms Obieta was sitting, looked at her figures and said, "Are you a Filipino? Are you a Filipino? When Ms Obieta said she was, Mr Sullivan said, "That is why your handwriting is like that, because you are Filipino. That is the handwriting of the Filipinos. Can you understand your handwriting? She replied, "Yes I can understand my handwriting."

Incident 6: On 6 December 2010, Mr Sullivan came over to Ms Obieta's table to check her ledge and trial balance. He said, "Are you a Filipino are you a Filipino?" When she answered yes, Mr Sullivan said, "That is why you write like that, because you are Filipino. Do you understand your handwriting? Do Filipinos write like that?"

Incident 7: On 9 December 2010 Ms Obieta asked whether the final exam was 'open book'. Mr Sullivan replied, "For you, no, but for the others, yes." Ms Obieta then said, "That is discrimination, that is discrimination." Mr Sullivan replied, "Well, that is not discrimination if I do not like you and I like the others. So for you it is not an open book, but for the others, yes."

Incident 8: After class on 9 December 2010, Ms Obieta and Mr Sullivan had a 'confrontation'. Ms Obieta complained of discrimination and Mr Sullivan told Ms Obieta that he was only joking. Ms Obieta said, "If you have problems with Filipinos, you cannot use it and discriminate against me." Mr Sullivan said, "You are the first Filipino I have encountered."

Incident 9: Mr Sullivan then said, "I have noticed that you are a more advanced student than the others and that you know a lot of things." Ms Obieta replied, "What is wrong with that if I am advanced and I know a lot of things? That is why you are trying to put me down in the course and affect my performance activity in class." Mr Sullivan said, "I have noticed that you are a straight person, you do not mess round." According to Ms Obieta, Mr Sullivan also said to her three times, "Do not come back here any more in this course." Ms Obieta replied, "I have to come back, this is funded by DEEWR (Department of Education, Employment and Workplace Relations) under the Productivity Places Program." Mr Sullivan then said, "OK, just finish the course then don't come back any more."

In her Amended Points of Claim, the applicant pleaded the detriments which the Deputy President had not dismissed as constituting victimisation. To those, she added allegations that she was told by Mr Sullivan not to return to class in the manner summarised above, and unconscionably compelled to sign defective Student Assessment Outcome ('SAO') Acknowledgment forms by the College principal, Mrs Sullivan.

Attempts to widen the scope of the complaint at hearing were unsuccessful. The reasons are recorded in the transcript.

In respect of the allegations of racial discrimination, the respondent said as follows.

(1) Incident 1: On 29 November 2010, Mr Compton did conduct an in-class assessment of the kind alleged. However, in the absence of evidence corroborating her account, the Tribunal would not be satisfied that Ms Obieta was left standing as she alleged. In the alternative, Mr Compton has been blind since childhood. Even if Ms Obieta was not invited to sit, whether by acknowledgement of a correct answer or otherwise, Mr Compton was unaware that she was standing. If he did not acknowledge her, it was inadvertent, and had nothing to do with her race or any other characteristic. There is no evidence that he would have treated persons not of Filipino race any differently. There is no evidence that Ms Obieta suffered a relevant detriment as a result of the way the assessment was conducted.

(2) Incidents 2 to 9 inclusive: The Tribunal would accept Mr Sullivan's evidence denying each of the allegations, noting that his evidence is corroborated in material respects by his file note of 9 December 2010 and the evidence Ms Doueihi, who attended the courses as a student. As Mr Obieta passed the trust accounting modules, she did not suffer a relevant detriment. Though Mr Sullivan conceded that on one occasion he made a general comment to the class about handwriting, and compared his own with the applicant's handwriting - his being judged the worse - this did not amount to discriminatory conduct.

In relation to the complaint of victimisation, the respondent submits that the Tribunal would accept the evidence of the College principal, Ms Sullivan, to the effect that the same Student Assessment Outcome sheets, which Ms Obieta complains were deficient, were sent to all students, that all students were required to sign and return them as a condition of passing the courses, and that all students who did so were awarded their qualification. There is no evidence that any of these activities, or any deficiency in the Student Assessment Outcome sheets - which is denied - was motivated by Ms Obieta's complaint of discrimination.

In view of the conclusions below, it has been unnecessary to summarise or consider the respondent's submissions on damages.

The respondent was represented by counsel. Ms Obieta chose to represent herself. Despite previous experience in representing herself in the Federal Court in Obieta v NSW Department of Education & Training & ors [2007] FCA 56, it unfortunately became clear that Ms Obieta was not familiar with the law, or with the rules and techniques of advocacy. As a result, the hearing was protracted.

Legislation

Though the Amended Points of Claim allege race discrimination in breach of the Anti-Discrimination Act 1977, they do not specify the provisions alleged to have been breached. It is common ground that the respondent is an educational institution for the purposes of section 17, which prohibits an educational institution from discriminating against a student on the grounds of race by denying or limiting the student's access to any benefit provided by the institution or by expelling her or subjecting her to any other detriment. Ms Obieta does not alleged that she was expelled. She says that, by virtue of each act of discrimination, she was subjected to a detriment.

Section 19 prohibits a provider of services from discriminating against a person by refusing to provide those services, or in the terms of which the services were provided.

Section 7 of the Anti-Discrimination Act 1977 provides relevantly as follows.

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

(a) on the ground of the aggrieved person's race ..., 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, or

(b)...

(c) ...

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."

The effect of the legislation was summarised as follows by Deputy President Hennessy [at paras 19-25 of her reasons]:

"19 While Ms Obieta has not been denied any specific benefit or service, if her allegations are accepted, she has been subjected to a detriment. The detriment, on Ms Obieta's evidence, include being threatened with violence (the baseball bat suggestion), being told not to come back to the course, being the butt of belittling comments and being told she was not liked.

20 Before sexual harassment was included in the AD Act, the Supreme Court decided that conduct which would typically be regarded as harassment can constitute discrimination on the ground of sex if the harassment results in some detriment: O'Callaghan v Loder [1983] 3 NSWLR 89. In that case Mathews DCJ found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment." Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman.

21 Since the decision in O'Callaghan v Loder, the AD Act has been amended to expressly include sexual harassment.

There has been no corresponding amendment to add racial harassment: Metwally v University of Wollongong (1984) EOC 92030. Consequently, for racial harassment to be unlawful, it must come within the test outlined in O'Callaghan v Loder. An educational authority or a service provider could be held to have contravened the AD Act by failing to respond appropriately to a learning environment permeated by racial harassment. The actual discrimination on the ground of race for which a respondent may be liable is its inadequate response to the learning environment, which the student is forced to endure.

22 Consequently, the conduct described by Ms Obieta may breach the AD Act if it produced a hostile learning environment and was directed to Ms Obieta because she is Filipino.

Differential treatment

23 The first component of direct discrimination is that the treatment is less favourable than the way the College treated or would have treated a person not of Ms Obieta's race. Ms Obieta did not nominate a person whose treatment could be compared with the way she was treated. When there is no actual comparator, the two elements of direct discrimination, differential treatment and causation, merge because the Tribunal could only reach the conclusion that the College treated Ms Obieta less favourably than a hypothetical person of a different race by determining that race was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003]

2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. In those circumstances, the question becomes one of causation alone.

Causation

24 To constitute race discrimination, at least one of the reasons for the way Mr Compton and Mr Sullivan treated Ms

Obieta must have been her race: AD Act, s 4A. The incidents involving a direct reference to Ms Obieta's race are ... the exchange about Ms Obieta's handwriting, and Incident 8, where Mr Sullivan said that Ms Obieta was the first Filipino person he had encountered. That comment was prompted by Ms Obieta's allegation that she was being discriminated against.

25 A finding of race discrimination would have to be made on the basis of these comments and, in relation to the other incidents, by way of inference from all the circumstances. To draw an inference, there must be a probable connection between the treatment and Ms Obieta's race and the inference must be logical. An inference cannot be made where more probable and innocent explanations are available."

At hearing, Ms Obieta extracted a concession from Mrs Sullivan, the principal of the College, that Ms Obieta was the only Filipino enrolled in the Certificate IV courses. This made available to her the rest of the class as potential comparators, so that the issues of differential treatment remain distinct. This has not affected the outcome because, in light of the findings we have made on fact and causation, it has not been necessary to consider the issue of differential treatment. To succeed in her complaint of race discrimination, she must prove in respect of each allegation:

that the treatment alleged occurred,

that it constituted differential treatment in the sense that term was used by Deputy President Hennessy,

that it occurred on the ground that she was a Filipino, or that she had a characteristic generally appertaining to, or imputed to, Filipinos, and

that the treatment either subjected her to a detriment (including failure to respond appropriately to a learning environment permeated by racial harassment) or a denial or limitation of her access to any benefit provided by the respondent.

Section 50 of the Act provides relevantly as follows.

"(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:

...

(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 ...

Ms Obieta alleges that the respondent subjected her to the detriments summarised above, because on 9 December 2010 she complained to Mr Sullivan that she had been discriminated against.

Issues for determination

The issues for determination by the Tribunal may be summarised as follows.

In respect of each allegation of race discrimination:

whether the treatment occurred as alleged,

if so, whether it occurred on the ground that Ms Obieta was a Filipino, or that she had a characteristic generally appertaining to, or imputed to, Filipinos, and

if so, whether the treatment either subjected her to a detriment (including failure to respond appropriately to a learning environment permeated by racial harassment) or a denial or limitation of her access to any benefit provided by the respondent.

In respect of each allegation of victimisation:

whether the treatment subjected her to a detriment, and

if so, whether it occurred on the ground that Ms Obieta had complained of discrimination to Mr Sullivan.

Applicant's evidence

Ms Obieta gave evidence in the form of statements, and orally in cross-examination. She was challenged as to credit, particularly in relation to her conduct as a self-represented litigant before the Federal Court in Obieta v NSW Department of Education & Training & ors [2007] FCA 56].

She said the on 24 September 2009, responding to an advertisement in the local newspaper, she attended at n information session concerning the two Certificate IV courses, held at the Bankstown Education and Skills Training Centre ("BEST") at Bankstown. She attended the two courses, which were run at BEST by the respondent from 11 October 2009 to 17 December 2009.

There is no dispute that the applicant is of the Filipino race.

She said that on 29 November 2010, she attended a class in Business Broking taken by Mr Compton (incident 1 above). He acknowledged and accepted answers to his question which were given by other students, inviting each to sit down as they gave their answer. He did not acknowledge her answers, or ask her to sit down. She remained standing with one male student, who she described as 'the leader of the bully boys'. It is common ground that there was a small group of unruly young males in this class. Though she did not describe the context of Ms Compton's activity, it is clear from other evidence considered below that he was conducting a quiz.

She said that on 3 December 2010, she attended a class in Trust Accounting taken by Mr Sullivan. She felt ridiculed and insulted when he said to her, after she asked him a questions about a trust ledger balance, ""Why don't you stand up here and you teach?". (Incident 2 above)

She said that during the same class, she asked Mr Sullivan for the type of account for the chart of accounts of the clients. Mr Sullivan said, "Sales" and then asked Ms Obieta if that was right. Ms Obieta said, "No". Mr Sullivan then went to the front of the class and said, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head." (Incident 3 above).

She said that during the same class, Mr Sullivan criticised her work without checking it and would not teach her the procedures for Trust Accounting. (Incident 4 above).

She said that during the same class, Mr Sullivan came over to her table, looked at her figures and said, "Are you a Filipino? Are you a Filipino? When Ms Obieta said she was, Mr Sullivan said, "That is why your handwriting is like that, because you are Filipino. That is the handwriting of the Filipinos. Can you understand your handwriting? She replied, "I can understand my handwriting." (Incident 5 above).

She that in she attended a further class taken by Mr Sullivan on 6 December 2010. He came over to her table to check her ledger and trial balance. He said, "Are you a Filipino are you a Filipino?" She said she was, and indicated, "I have already told you before that I am a Filipino". Mr Sullivan said, "That is why you write like that, because you are Filipino. Do you understand your handwriting? Do Filipinos write like that?" (Incident 6 above).

Ms Obieta attended a further class held by Mr Sullivan on 9 December 2010. She said that, after the class, she asked whether the final exam was 'open book'. Mr Sullivan replied, "For you, no, but for the others, yes." Ms Obieta then said, "That is discrimination, that is discrimination." Mr Sullivan replied, "Well, that is not discrimination if I do not like you and I like the others. So for you it is not an open book, but for the others, yes." (Incident 7 above).

According to Ms Obieta, Mr Sullivan then said that he was only joking. Ms Obieta said, "If you have problems with Filipinos, you cannot use it and discriminate against me." Mr Sullivan said, "You are the first Filipino I have encountered." (Incident 8 above).

According to Ms Obieta, Mr Sullivan then said, "I have noticed that you are a more advanced student than the others and that you know a lot of things." Ms Obieta replied, "What is wrong with that if I am advanced and I know a lot of things? That is why you are trying to put me down in the course and affect my performance activity in class." Mr Sullivan replied, "I have noticed that you are a straight person, you do not mess round." According to Ms Obieta, Mr Sullivan also said to her three times, "Do not come back here any more in this course." Ms Obieta replied, "I have to come back, this is funded by DEEWR (Department of Education, Employment and Workplace Relations) under the Productivity Places Program." Mr Sullivan then said, "OK, just finish the course then don't come back any more." (Incident 9 above).

She said that after this, Mrs Sullivan sent her the SAO Acknowledgements forms for signature and return. From their content, she inferred that Mrs and Mrs Sullivan had intentionally decided to assess her answers in the final exam relating to Property Management, and that all mention of that subject had been omitted from the SAO concerning the final exam. She considered this to be victimisation in response to her complaint of discrimination.

She also noted that the SAO concerning the subject, Business Broking, did not refer to an assessment task which she had completed in that subject, as evidence of competency. She inferred that the respondent had not assessed it, and considered that also to be victimisation.

She said the SAO Acknowledgment forms were defective, and that being required to sign them was further victimisation.

She said she was also victimised by the failure of the College to provide her with certificates of completion and academic transcripts.

She said that Mr Sullivan's exhortation not to return on 9 December 209 was also a retaliation for her complaint, and therefore victimisation.

Respondent's evidence

Affidavits of Mr Sullivan, Mrs Sullivan, Ms Doueihi, Mr Horton and Ms Fisher were before the Tribunal. Mr Compton gave oral evidence only. The witnesses were cross-examined. Their evidence is summarised below.

Mr Compton

Mr Compton said that he had been a solicitor since 1993, and since 2002 had been classified as a non-practising barrister. He worked as a trainer for the respondent in 2010. He said he had been blind since the age of 11, with two artificial eyes. He did not recall conducting the in-class exercise on 29 November 2010, but did not deny he had done so. He said he generally did conduct such exercises, to energise the class and to provide some 'fun'. It was not an assessment. His practice was to ask students all to stand, and to be the first to answer questions posed to the class generally, in the form of a quiz. As he could not see, he would ask students to call out the answer, rather than put up their hands. When he heard a student answer, he would invite them to sit by pointing to them, whether the answer was right or wrong. He accepted that this is what he would have done on 29 November 2010.

He said his students were from a wide range of ethnic backgrounds. He had not previously met Ms Obieta. On that day, he was unable to distinguish her voice from that of any other student. He did not know whether she had been left standing as alleged.

He said that on about 12 December 2010, he recalled a phone call from his fellow teacher, John Sullivan, to inform him that Ms Obieta had complained that Mr Sullivan had discriminated against her on the grounds of sex. Mr Sullivan seemed upset. Following discussion with Mr and Mrs Sullivan, Mr Compton agreed that the final revision class scheduled for the next day with Mr Sullivan should not proceed. Mr Compton attended the class in Mr Sullivan's place and explained the situation. The class did not proceed.

Mr Compton was cross-examined extensively by Ms Obieta. Cross-examination included the extent or existence of his blindness. No medical or independent evidence was brought to contradict his evidence that he was blind. At one point, his attention was drawn to a report by Mr Horton of his investigation into the allegations of discrimination (considered below), in which he said that he had interviewed Mr Compton, and that Mr Compton had conceded 'that he was aware that one of the last two students standing did sit down before he asked another question, but he ignored it.' However, Ms Obieta elected not to ask any questions on this, and he was not given an opportunity to comment.

Whether or not it would be fair in those circumstances to permit Ms Obieta to rely on the concession, even if accepted, the concession does not compel a conclusion that Mr Compton was able to see. He might equally have been aware by his perception of sounds. That he could not see the students is corroborated by Ms Obieta's own account in her letter of complaint to the College principal, Mrs Sullivan, dated 16 December 2010, referred to below. In that letter, Ms Obieta said:

"Mr Compton acknowledged and accepted all the other female students' answers and told them to sit down except me. I was the only female student in our class whose answers were not acknowledged and accepted and was not told to sit down by Mr Compton. I was the only female student in our class who was left standing together with the group of boys during that time. Mr Compton then said, "So there are only four boys left." I was still standing and Mr Compton told Darren, Hamu, Theo to sit down. I was the only female left standing with Sleimen. So, I decided to sit down because I felt that Mr Compton was intentionally leaving me behind after Sleimen and I felt being ridiculed. So, Sleimen was the only one left standing at the end and was told to sit down the last one."

Mr Compton's comment that 'There are only four boys left' corroborates, in a compelling way, his evidence that he could not see, and that any perception he may have had was derived from his other senses, such as hearing. Even accepting that Ms Obieta was not invited to sit, there is no evidence to support any contention that Mr Compton failure to acknowledge any answer or invite her to sit was intentional, or intended to belittle her. The Tribunal finds that highly unlikely.

Mr Compton's apparent concession to Mr Horton that he was aware that eventually two students remained standing, one of whom sat of their own accord, is consistent with the account of Ms Obieta in her letter, but does not cause the Tribunal to doubt that he was, and remains, blind.

His account generally was internally consistent, and given in a straightforward manner. Where he did not directly recall an event, he readily conceded that fact. The Tribunal accepts his evidence. In particular, it accepts that he was blind, that he had not met Ms Obieta before 29 November 2010, that he could not identify her voice, and was unaware as to whether she remained standing, even if he was aware that two students remained standing, one of whom sat of their own accord. His evidence as to his usual practice is largely consistent with Ms Obieta's recollection of the class exercise, and it is likely that such an exercise was conducted in class on 29 November 2010. It is also consistent with Ms Doueihi's recollection, except in certain respects considered below

From the evidence of Ms Doueihi (considered below) it does seem that Ms Obieta was not invited to sit, and therefore that she was left standing until she decided to sit of her own accord. However, we are not persuaded that any failure to invite Ms Obieta to sit was intentional on the part of Mr Compton. For the reasons given, it is likely that he was unaware she left standing. There is no evidence to support a finding that her race formed any part of the reason for his apparent failure to invite her to sit or acknowledge her answer. For those reasons, the allegation of race discrimination on 29 November 2010 is not made out.

Mr Horton

Mr Horton swore an affidavit, and was cross-examined. He said that he is a solicitor, and also worked as a senior trainer and assessor at the Australian College of Professionals, run by the respondent. On 17 December 2010, Mrs Sullivan asked him to investigate certain complaints of discrimination made by Mr Obieta in a letter to Mrs Sullivan dated 16 December 2010. Those complaints included all the allegations of discrimination described above as incidents 1 to 9 inclusive, and others not here relevant. He conducted interviews with Mr Compton, Mr Sullivan, other staff of the College, and three students including Ms Doueihi. He issued a report dated 8 February 2011, finding that there was no evidence to support the allegations made by Ms Obieta in respect of Mr Sullivan and Mr Compton.

Those findings, though logical and based on the evidence, do not bind the Tribunal. His record of the responses of Mr Compton, Mr Sullivan and other witnesses to his questions is of assistance. The accuracy of his record of these responses was not challenged. Mr Compton's response has been considered above in the context of his evidence. Where relevant, the responses of other witnesses are considered below, in the context of each of the allegations of discrimination to which they relate.

Mr Horton also said that between 13 and 20 December 2010, Mrs Sullivan asked him to mark Ms Obieta's trust accounting assignment, as it was inappropriate for Mr Sullivan to do so. Mr Horton thought it was a very good assignment, and assessed the applicant as competent in trust accounting. His evidence on that was also unchallenged, and the tribunal accepts it as accurate.

Ms Fisher

Ms Fisher said that she had been a trainer and assessor with the respondent since 1 July 2009. She helped to design the structure of the two Certificate IV courses in Real Estate and Business. She said they were training programs, funded by the NSW government under its Productivity Places Program ('PPP'), for disadvantaged students who were registered as job seekers and in receipt of Centrelink benefits. The courses were first offered in July 2010, and again in October 2010. In September 2010, Ms Obieta enrolled in both courses, which were scheduled to run three days per week from 11 October 2010 to 17 December 2010.

On 24 September 2010, Ms Fisher attended the offices of BEST at Bankstown, and gave a presentation on the two Certificate IV courses. BEST had a contractual relationship with the respondent, under which it advertised the courses and managed student enrolments for a fee. Classes were delivered at the offices of BEST.

Ms Fisher explained that the NSW Office of Fair Trading required that an applicant for a real estate agents licence or Business Agent's licence complete the relevant Certificate IV course, and undergo checks on their a criminal background, a bankruptcy search, and be considered a fit and proper person to hold a licence. She said the Office of Fair Trading required that the Real Estate course should facilitate the obtaining of 24 units of competency, and the Business Broking course should facilitate obtaining 12 units of competency.

Because the courses were designed to ensure competency only, neither marks nor grades were issued in respect of any subject forming part of either course. Students were merely assessed as being competent, if that was the assessment.

Ms Fisher also said that one of the requirements imposed on education providers under the PPP was that they obtain signed acknowledgments of assessment outcomes from students prior to the release to them of certificates of completion and course transcripts. Ms Fisher did not specify the precise form of acknowledgment required.

She produced copies of ten Student Assessment Outcome ('SAO') Acknowledgment forms which she said were sent to the applicant on 20 December 2010. Each had been signed by the relevant assessor, indicating that Ms Obieta had been assessed as competent in each case. Each bore the following acknowledgement at its base, for signature by the relevant student:

"I, _____________________, acknowledge that I have received notification and feedback in relation to the assessment for the above Unit/s of Competency and agree with the outcome ....."

The 'outcome' with which the recipient of these forms was being asked to agree was that they had been assessed as 'competent' in the specified subjects or modules.

Eight of the forms bore a sub-heading indicating the particular subject being assessed. Each related to a different subject. The eight subjects were:

Sales for Real Estate,

Property Law,

Staff Management,

Customer Service,

Cashflow Management,

Property Management,

Sales for Business Brokers, and

Trust Accounting.

Each form specified the units of competency which had been assessed in the relevant subject. Each unit of competency was identified by a code number.

The remaining two forms were sub-headed 'Mid-Way Examination' and 'Final Examination' respectively. The former had been signed by Ms Fisher on 29 November 2010. It did not list units of competency, but rather 'modules being assessed'. That is, subjects being assessed. It listed five modules, namely:

Sales for Real Estate,

Property Law,

Staff Management,

Customer Service and

Cashflow Management.

As can be seen, these were all subjects to which five of the other SAO's related. The clear intent of this form was to acknowledge that Ms Obieta had passed the mid-way exam in all five subjects. The units of competency to which each related had already been specified in the outcome SAO Acknowledgment forms relating to each.

The form sub-headed "Final Examination" had been signed by Mrs and Mrs Sullivan on 14 December 2010. Likewise, it did not list units of competency, but rather modules being assessed. They included the five modules listed in the form headed "Mid-Way Examination", plus two further modules:

Business Broking, and

Trust Accounting.

These two subjects were also among the subjects to which the first eight SAO Acknowledgement forms had related. The clear intent of this form was to indicate that Ms Obieta had passed her final examination in all seven subjects. The units of competency to which each related had been specified in the SAO Acknowledgment forms relating to each.

Ms Fisher said that these forms were in the standard form sent to all students enrolled in the two courses. They did not differ materially from the forms sent to all other students. She said that, on signing and returning the forms, it was the College's practice to issue the student with certificates and transcripts evidencing successful completion of both courses. We are satisfied that this would have occurred, had the applicant signed and returned the forms.

In response to Ms Obieta's suggestion that her Mid-Way Examination had not been marked, Ms Fisher said that she and Mrs Sullivan had marked all the mid-way exams, and that Ms Obieta's had been marked and assessed as competent. In cross-examination, Ms Fisher confirmed that she herself marked Ms Obieta's paper. That is consistent with the presence of her signature (rather than Mrs Sullivan's) on the form dated 29 November 2010. We are satisfied that the paper was marked by her and that Ms Obieta was assessed as competent in all subjects examined.

In cross-examination, Ms Fisher conceded that the module, 'Property Management', had been omitted in error from the Final Examination SAO Acknowledgment form dated 14 December 2010. It is common ground that some of the questions in the final exam related to the Property Management module.

However, as indicated above, one of the eight SAO Acknowledgment forms had related to that subject (or module) specifically, and contained a list of the units of competency assessed within the subject, in all of which the applicant had been assessed as competent. Its absence from the form dated 14 December 2010, whether by administrative oversight or choice (as Mrs Sullivan suggested in her evidence, considered below), was of no practical significance.

The accuracy of Ms Fisher's evidence was not challenged, save for a suggestion that the form dated 14 December 2010, as it was sent on 20 December 2010, included a mark of 89.5 per cent. As Ms Fisher indicated that she obtained the copies which she produced from the files of the respondent, rather than from copies kept by her personally, and Ms Obieta mentioned the mark in her letter of reply to Mrs Sullivan dated 22 December 2010 (considered below), it seems likely that the mark was included in the SAO. In the way the cross-examination was conducted, Ms Fisher did not ultimately have an opportunity to comment on whether it did or not.

In all other respects, we accept Ms Fisher's evidence as being correct.

Ms Doueihi

Ms Doueihi said that she was enrolled in and attended the two Certificate IV courses - Real Estate and Business Broking - from 11 October 2010 to 17 December 2010. She successfully completed both courses, was issued with her certificates and transcripts, and obtained her licences as a real estate agent and business agent. That demonstrates that the issue of certificates and transcripts by the College, as was offered to Ms Obieta on receipt of her SAO acknowledgments, was sufficient to satisfy the licensing authority of competence in all relevant units of competency, and we so find.

Ms Doueihi was present in the same class as Ms Obieta on 29 November 2010, 3 December 2010, 6 December 2010 and 9 December 2010 - that is, on each occasion on which Ms Obieta alleges discriminatory treatment at the hands of Mr Compton or Mr Sullivan.

She agreed that there were some young males in the classes who were disruptive. She said that Mr Compton and Mr Sullivan made jokes from time to time to "refocus the males students' attention and to get matters back on track so that the rest of the students could get through the course content."

She also said that on 13 December 2010, at the final examination, she and a number of other students discussed their concern over Ms Obieta's complaint of discrimination at the hands of Mr Sullivan, and decided to pen a letter denying the truth of the complaint. It was drawn up by another student. Ms Doueihi passed it on to other students for their signature.

Her evidence otherwise went to the allegations contained in incidents 1 to 8 listed above.

In relation to incident 1, she recalled that on 29 November 2010, Mr Compton conducted an in-class quiz during the Business Broking module, in which all students were asked to stand, and then to sit on giving a correct answer. She said she had no recollection of his failing to acknowledge Ms Obieta's answers, of failing to ask her to sit down, or of her being left standing with a male student. She did, however, concede to Mr Horton:

'that Mr Compton did not accept some answers from Ms Obieta but he did that to others as well. She says he did not single out her or anyone else.'

This appears to mean that he did not invite Ms Obieta to sit down, despite her having answered some questions. That gives support to that aspect of Ms Obieta's account.

Ms Doueihi's understanding that students were asked to sit on giving a 'correct' answer is not entirely consistent with Mr Compton's recollection. His practice, he said, was to ask students to sit regardless of the correctness of their answer. On that issue Mr Compton's account is the more likely to be correct for a number of reasons: he would be expected to know his usual practice; it is consistent with his aim of engaging and energising the class rather than conducting an assessment; there is no evidence that he intended to depart from his practice; it seems likely he would remember if he did on a particular occasion; Ms Doueihi does not specifically deny that students were asked to sit even when giving a wrong answer; and on the first day of the course she was probably not in a position to assess the correctness of all answers. Ms Doueihi's evidence does not support Ms Obieta's account that she was deliberately ignored.

In relation to incident 2 (the allegation that Mr Sullivan said, "Why don't you stand up here and you teach" on 3 December 2010), Ms Doueihi recalled that throughout the courses Ms Obieta asked 'a lot of questions, the answers to which had already been given by the trainer/assessor while the Applicant had been chatting to other students'. However, Ms Doueihi did not recall her asking about the trust ledger on that occasion. She had no recollection of any response to the effect, "Why don't you stand up here and you teach".

As such a response is apt to offend, it is reasonable to expect that a fellow student who overheard it would recall it. Ms Doueihi said there were only four rows of desks in the room, which she clarified in her oral evidence as meaning two rows of four desks each, facing the front, with an aisle between the middle two desks in each row. It seems likely the words would have been overheard by other students in the room, unless they were uttered in hushed tones, or obscured by loud noise. There is no evidence to that effect. Ms Doueihi told Mr Horton that she did hear Mr Sullivan saying words to that effect to the disruptive males in the class, though not to Ms Obieta. In the circumstances, it seems that Ms Doueihi would have heard and remembered the words if they had been said to Ms Obieta. She did not.

Her evidence contradicts the account of Ms Obieta on this issue. It is consistent with what she told Mr Horton, and also with the evidence given by to Mr Horton by her fellow students, Ms Lam and Ms Abu-Zalef, the first of whom said she did not hear the words alleged, and the second of whom denied they were uttered. The account of Ms Doueihi and her fellow students corroborates the denial of Mr Sullivan, considered below. Neither Ms Doueihi nor the other two students have any apparent motive to support the respondent, or to contradict the applicant. Their independence causes their evidence to attract considerable weight. In addition, it is clear from other uncontradicted evidence that Ms Lam sat next to Ms Obieta in classes. For that reason, her evidence is particularly persuasive. For all those reasons, we are not persuaded that this incident occurred.

In relation to incident 3 above (allegation that on 3 December 2010 Mr Sullivan said to and in relation to Ms Obieta, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head"), Ms Doueihi did hear Mr Sullivan reply 'Sales' to a question asked in class by Ms Obieta on 3 December 2010. However, she did not hear him utter the other words alleged by Ms Obieta. She did concede to Mr Horton, "There could have been some banter about a baseball bat with the boys up the back."

The words alleged were particularly likely to offend, if uttered to Ms Obieta. For that reason, it is highly likely that any student hearing them would remember them. There is no evidence they were uttered in hushed tones or obscured by noise. As Ms Doueihi did hear the first part of the alleged conversation, concerning a question regarding sales, she is likely to have heard the offending words if they were uttered. Ms Doueihi's evidence on this issue is consistent with what she told Mr Horton, and also with the evidence given to him by her fellow students, Ms Lam and Ms Abu-Zalef, neither of whom recalled the words being spoken to Ms Obieta.

For the reasons given, the evidence of Ms Doueihi and her two fellow students attracts weight. It is consistent with that of Mr Sullivan, and inconsistent with that of the applicant. On this issue, we are satisfied that Mr Sullivan did not utter the words alleged to Ms Obieta, even if he did say something about a baseball bat to one of the male students, which he appears to concede (below).

In relation to incident 4 above (that Ms Sullivan criticised the applicant's work without checking it and refused to teach her trust accounting procedures), Ms Doueihi said that Mr Sullivan 'went through the trust accounting procedures step by step with the entire class.' She also said that students including the applicant would often ask questions about the exercises and course content, and that Mr Sullivan answered all the questions asked.

This evidence contradicts Ms Obieta's evidence that he refused to teach her trust accounting procedures. It is consistent with what she told Mr Horton, namely, "He was always at desks, helping people, he would always pause past Irene [Lam] and [the applicant] seeing if they needed help." Her account is corroborated by the fact that Ms Obieta was able to pass all course work, including trust accounting, and by Ms Lam's comment to Mr Horton that "John came up to everyone who needed help."

For the reasons expressed, the evidence of Ms Doueihi and Ms Lam attracts particular weight. It does not support the applicant's allegations, and we are not satisfied that Mr Sullivan refused to teach her the relevant procedures. We are satisfied of the contrary.

Though Ms Doueihi does not comment on the allegation that Mr Sullivan would criticise her work without checking it, she did make the following observation of his conduct toward the class generally to Mr Horton:

"He used to say, 'you've got that wrong' followed by 'OK let's go back and check'. He did not treat [Ms Obieta] any different".

The fact that Ms Obieta's evidence has been rejected above is adverse to her credit. It is proper to approach her evidence with caution, particularly where it is not corroborated. There is no evidence to corroborate the assertion that Mr Sullivan criticised her work without checking it. He denied it. He said that when he did see her work, he indicated it was correct, and that otherwise he could not check her work because she would not let him. For the reasons set forth below, we accept that evidence. It is highly unlikely that he criticised her work. We are satisfied that he did not.

In relation to incidents 5 and 6 (allegations that Mr Sullivan commented on her handwriting as being characteristic of Filipinos), Ms Doueihi recalled that he made observations politely about the nationality of students in Trust Accounting, including that of the applicant. This is consistent with Ms Doueihi's remark to Mr Horton that, "I might have heard something about Filipinos". She recalled that on one occasion Mr Sullivan made observations about the handwriting of students. However, she did not recall him having the conversations which Ms Obieta alleges, or conversations to that effect.

There is no evidence that the words were uttered hushed tones, or obscured by loud noise. As they would, if uttered, have had the effect of singling Mr Obieta out, it is likely that Ms Doueihi would recall them if they occurred. She does not.

Her evidence is consistent with the responses made to Mr Horton by Ms Lam and Ms Abu-Zalef, neither of whom recalled the comments being made. The evidence of these witnesses corroborates the denials made by Mr Sullivan (below). We are satisfied that he did not utter the words alleged.

In relation to incident 7 (the allegation that Mr Sullivan said the exam was open book for everyone except Ms Obieta), Ms Doueihi agreed that Mr Sullivan told the class on 9 December 2010 that the exam would be open book. The applicant nevertheless asked him whether it would be open book. He replied:

"I've already covered this issue. It is an open-book exam".

This evidence directly contradicts the applicant's account. It is not inconsistent with the remark made by Ms Doueihi to Mr Horton that "He may have said that as a joke." She did not concede to Mr Horton that Mr Sullivan had in fact said the words alleged by Ms Obieta. Her response suggests that she did not hear any such words. Similarly, Ms Lam and Ms Abu-Zalef told Mr Horton said they did not hear the words alleged. Ms Lam, accordingly to Mr Sullivan, was standing behind Ms Obieta at the time. That evidence is uncontradicted, and we accept it. Doueihi's account corroborates the denial by Mr Sullivan below. The weight of the evidence supports a finding that the words were not uttered as alleged, and we make that finding.

Mr Sullivan

Mr Sullivan is the husband of the College principal, Mrs Sullivan. Since July 2009, he had been a senior trainer at the College, and its financial controller. He taught the modules, Trust Accounting and Cashflow Management. On 8 November 2010, he commenced the first of three classes in Cashflow Management. He introduced himself to the class, and asked (among things) their nationalities. From their responses, he considered that around 85% were born overseas, or were children of parents who had been born overseas. In his experience as a trainer at the College, this was usual. He recalled that Ms Obieta said she was a Filipino.

He commenced the Trust Accounting module on 2 December 2010. It was a five day course. The second day of the course was held on 3 December 2010.

In relation to incident 2 on 3 December 2010, he said he did not recall Ms Obieta asking about a trust ledger, but denied having invited her to stand up and teach as alleged. That is consistent with the response he gave to Mr Horton, and with the evidence of Ms Doueihi, Ms Lam and Ms Abu-Zalef. We are satisfied that he did not utter the words complained of.

In relation to incident 3 on the same day, he said he did not recall being asked a question about a chart of accounts, or responding 'Sales'. However, he denied having said to Ms Obieta, "You want to fight today? On Monday I will bring a baseball bat and hit her on the head."

He had conceded to Mr Horton as follows:

"... I did make a comment to X [name deleted] (one of the male students in the group sitting up the back) about a small baseball bat I had, not as long as a ruler, and that I would bring it on Monday."

This bat was described in his affidavit as a 'mini baseball bat' given him by a student years ago, which sat in a drawer at the Respondent's former premises at Castle Hill, not in the class room.

His concession to Mr Horton is consistent with Ms Doueihi's recollection that "There could have been some banter about a baseball bat with the boys up the back." It does not support the allegation that he uttered the words complained of to Ms Obieta, or in relation to her. We are satisfied that he did not.

In relation to incident 4 (that he criticised the applicant's work without checking it and refused to teach her trust accounting procedures), Mr Sullivan said that he conducted two cashbook exercises on 3 December 2010 with the entire class. A third exercise was to be completed by students individually - apparently at another time - in preparation for the final exam. As the two in-class exercises were conducted with the class as a whole, he says there is no reason why he would have had occasion to criticise the applicant's work individually. He recalled that on occasions when he did ask to see the detail, she declined to show it to him. In his file note of the conversation with her on 9 December 2010 (extracted below), he recalled that on the few occasions she had shown him her work, he indicated it was correct.

He denied criticising her work or failing to teach her trust accounting procedures. On the contrary, he considered her 'a very competent student who generally produced high quality work'.

As indicated, his denials are consistent with the evidence of Ms Doueihi and Ms Lam. They are consistent with Mr Sullivan's responses to Mr Horton. We find that he neither criticised the applicant's work without checking it (or at all), nor failed to teach her trust accounting procedures.

In relation to incidents 5 and 6 (allegations that Mr Sullivan commented on her handwriting as being characteristic of Filipinos on 3 and 6 December 2010), Mr Sullivan denied making the comments complained of. He noted that there would be no reason for him to have asked 'Are you a Filipino? Are you a Filipino?' as alleged, as Ms Obieta had informed him of her nationality on the first day of class.

He conceded that on one occasion, he told her, "My handwriting is worse than yours'. He also said that, when completing cash book exercises with students, he would typically hand out typed versions of the exercises complete with answers, and explain, "I'll give you a copy with the answers in case you can't read your own handwriting". It was his experience that students would often cross out their workings and recomplete answers a number of times, because of the maths involved. He would also tell entire classes, not individual students, that their handwriting must be legible so that their assignments and exams can be assessed.

There is nothing inherently unlikely about this evidence. It is consistent with the responses given to Mr Horton. Mr Sullivan's denial that he uttered the words alleged is consistent with the evidence of Ms Doueihi, Ms Lam and Ms Abu-Zalef, none of whom heard the words alleged. It is quite unlikely that he would have asked Ms Obieta repeatedly, 'Are you a Filipino?' in circumstances where she had already informed him that she was. We are satisfied that he did not utter the words alleged.

In relation to incident 7 (the allegation that Mr Sullivan said the exam was open book for everyone except Ms Obieta), Mr Sullivan conceded that he told the students that the exam was open-book, and observed that this was typically more difficult than closed book exams. He denied, however, saying to Ms Obieta the words alleged by her. His evidence is consistent with what he told Mr Horton, and with the recollections of Ms Doueihi, Ms Lam and Ms Abu-Zalef. We are satisfied that it is true. We find that he did not utter the words complained of.

In relation to incidents 8 and 9 (the allegations that Mr Sullivan said he had only been joking, that this was the first time he had encountered a Filipino, and that he told Ms Obieta not to come back), Mr Sullivan said that the applicant did approach him after class on 9 December 2010, as he was packing his bags to leave. Ms Lam stood behind the applicant, shaking her head. He conceded that the applicant used the word 'discrimination', but could not recall precisely what she said about it.

He denied that he said "I was only joking". He recalled asking, "Are you joking?", as he did not believe the applicant was being serious.

He denied saying that she was the first Filipino he had encountered. He observed that he had taught an entire class of Filipinos in 2008 or 2009. That evidence is uncontradicted, and we accept it. It is highly unlikely that he would have said Ms Obieta was the first Filipino he had encountered. He did not recall the applicant referring to her nationality on 9 December 2010 at all.

He said that he complimented her in the following way, when she expressed concern about passing Trust Accounting:

"From the work I have seen you produce in this class, you should have no problems passing the final examination."

He denied telling Ms Obieta not to return. He recalled saying instead: "If you do not want to finish the course, you do not have to come back." There is nothing inherently improbable about such an answer where, as here, a student is complaining about her treatment. Its utterance could not amount, in our view, to a detriment.

He denied the remainder of the conversations alleged.

He said that Ms Obieta complained that Mr Compton had ignored her during an in-class oral assessment in Business Broking, by failing to accept her answers and telling her to sit down. He replied that Mr Compton was blind. When she said he drove a car, Mr Sullivan denied it. She asked how Mr Compton could read legal documents. He replied that he used special computer software.

After he left, he rang Mrs Sullivan and told her that he was uncomfortable about returning to class the next day in light of what had happened. As indicated, Mr Compton took his place.

Mr Sullivan made a file note of the conversation that evening, which was before the Tribunal. Though less detailed than his affidavit, it was consistent with his evidence. It also revealed that Ms Obieta had complained first about the disruptive male students up the back, saying that Mr Sullivan paid them too much attention and too little to her. It recorded that she complained of discrimination on the grounds of her race, but that she declined to give details when asked. It also recorded:

"Ms Obieta was extremely concerned about passing her trust accounting assessment. I informed her that if she completed her assessment at the same standard that her classroom work was done, that she would not have a problem with passing the assessment. On the few occasions that Ms Obieta had shown me her classroom work, I had told her that her answers were correct. I had been unable to look at the detail of her classroom work, as each time I asked to see her work, she covered her book with her hands and said she didn't want me to look at it. It appeared that Ms Obieta had completed the classroom assessments at home prior to the classroom activities, as from what I could see, her pages were already complete when we started each exercise."

His evidence before the Tribunal was consistent with his file note, so far as it went. His evidence was also consistent his answers to Mr Horton.

Importantly, Mr Horton had asked Ms Lam about her recollection of the conversation between Mr Sullivan and Ms Obieta witnessed by her on 9 December 2010. Ms Lam did recall the conversation, and repeated what she could recall. Her recollection gave no support to Ms Obieta's account, save that she agreed that Ms Obieta 'kept going on with complaints', and that Mr Sullivan said, 'You are one of the best students'.

Having regard to the caution with which it appropriate to approach the applicant's evidence, and to fact that is not supported by that of Ms Lam, we are satisfied that the words alleged to have been uttered by Mr Sullivan on that occasion were not uttered, and prefer his evidence on that issue. We accept his evidence generally as being true. Nothing that he admits having said on that occasion appears to have been motivated by the applicant's race, or (notwithstanding the merger of issues) to be capable of amounting to discriminatory conduct, or a detriment.

Mrs Sullivan

Mrs Sullivan said that she was the sole director of the respondent, and had been principal of the College since 1 July 2009, with responsibility for its day-to-day management. She had taught two modules in the Certificate IV courses in late 2010. The first was Introduction to Real Estate, held on 14 October 2010. The second was Property Law, held on 15 October 2010.

She was not present on the occasions that the applicant alleges that she was discriminated against. She recalled making a decision, in consultation with Mr Compton and Mr Sullivan, that the latter should not return to class on 10 December 2010, in light of the complaints made to him by Ms Obieta on 9 December 2010. She also recalled asking Mr Sullivan to prepare a file note.

She said that, after supervising the final examination on 13 December 2010, the invigilator Ms Lee attended her at the respondent's offices in Castle Hill, produced a document, and said, "The students have signed a petition supporting John Sullivan".

She said that document went missing at about the time she asked Mr Horton to investigate. Though a copy was not before the Tribunal, Mrs Sullivan recalled it had been 'signed by most of the students enrolled in the courses', and included the words, "John has not acted inappropriately to any member in the class and has not been discriminatory." In all likelihood, that was the letter referred to by Ms Doueihi.

On 17 December 2010, a lunch was arranged for all students enrolled in the Certificate IV courses. Students who had completed the course requirements were handed SAO Acknowledgement forms at the lunch. As Ms Obieta did not attend the lunch, her forms were not handed to her on that occasion.

On the same day, Mrs Sullivan received Ms Obieta's letter of complaint referred to above. Mrs Sullivan asked Mr Horton to investigate in accordance with the internal policies and procedures of the College. As he was a solicitor, she considered him an appropriate choice. She received his report on about 8 February 2011, and notified the applicant of his findings by letter dated 28 February 2011.

On or about 20 December 2010, the College posted SAO Acknowledgment forms to all students who had not attended the lunch on 17 December 2010, including Ms Obieta. These forms were sent to Ms Obieta under cover of a letter dated 20 December 2010, signed by Mrs Sullivan. She described it as a 'standard letter which was sent to all students who had competed he courses'. It contained the following:

"Congratulations ... You have now reached the final stage of the training program. ...

As one of the students who did not attend last Friday's training, you are now required to complete the attached documents and return them to the College in order for the processing of your academic transcripts to be undertaken. ... Please note that a copy of these documents is enclosed for your records.

The Australian College of Professionals will be issuing the academic transcripts and certificate within (10) business days of the receipt of your documentation."

The reference to 'last Friday's training' appears to be a reference the lunch of 17 December 2010.

The clear intent of the letter was to indicate that, on signing the enclosed SAO Acknowledgements, the College would issue certificates and transcripts to the effect that a student had been assessed as competent in all subjects, including the units of competency to which each subject related. We are satisfied that the units of competency assessed, and which would be certified by the issue of certificates and transcripts, were those required by the licensing authority. Ms Obieta had only to sign the forms to receive her certificates and transcripts, and thereby to be eligible for both licences.

Instead of signing and returning the forms, Ms Obieta replied by letter dated 22 December 2010. In summary, she indicated as follows.

She would not sign the SAO headed "Final Examination" because it failed to acknowledge that she had been assessed as competent in Property Management, which had formed part of the final exam.

She demanded a breakdown as between subjects (or 'modules') of the aggregate mark of 89.5% indicated on the above SAO.

She demanded that the SAO relating to the Mid-Way examination disclose her mark, observing, "I cannot agree or disagree without seeing my grade/mark in the Mid-Way Examination'.

She observed that she could not sign the remaining eight SAO's (each of which indicated that she had been assessed as 'competent' in relation to a particular subject or module) because "I cannot agree or disagree without seeing my grade/mark".

She refused to sign the SAO concerning the subject, Sales for Business Brokers, for the additional reason that the 'evidence provided for assessment' disclosed on the form did not include an agency agreement which she had completed and handed in.

The omission of Property Management from the SAO headed "Final Examination" would not have impeded the issue of the relevant transcripts and certificates, or the grant of a licence. It was clear from the SAO headed 'Property management" that Ms Obieta had been assessed as competent in that subject, and all units of competency to which it related.

There is no evidence that Ms Obieta's complaint formed any part of the reasons for the omission of Property Management from the SAO concerning the final examination. As it was the clear intention of the College to issue certificates and transcripts as to successful completion on signing the forms, it is highly unlikely that the omission was so motivated. For that reason, it cannot constitute victimisation. Mrs Sullivan did explain that it was omitted, not by error, but because she did not consider that the final examination examined that subject in any great detail, despite the presence of two or more questions relating to residential tenancies. From that evidence, we infer that it was her decision not to include the subject on the Final Examination SAO, and not an administrative oversight, as Ms Fisher had assumed. It was sufficient, for the purposes of obtaining a licence, that students be graded as competent in Property Management and its associated units of competency. Whether the College considered it appropriate to indicate that grade in Property Management should be indicated on one SAO or another was a matter for the College. As Mrs Sullivan indicated, the purpose of these acknowledgments was to satisfy an auditing officer that the students had in fact been assessed as competent in each relevant module. The issue of academic transcripts and certificates was sufficient to make them eligible for their licenses. We are not satisfied the forms were deficient, as alleged.

That Final Examination SAO recorded that Ms Obieta had been assessed as competent in all the seven subjects listed in the final exam. The acknowledgment sought at the base of the form from the student has been set forth above in these reasons. It was an acknowledgment that she agreed that she was competent. No acknowledgment was sought to the effect that she agreed with a particular mark. Her request for her mark was perfectly proper, but formed no proper basis for a refusal to sign the acknowledgment, unless she regarded herself as incompetent. There is no evidence to that effect. We are not satisfied that the form was 'defective' due to the absence of a mark.

Ms Obieta's refusal to sign the form has had the result that certificates and transcripts have not been issued. We are satisfied that they have not been issued for the sole reason that she has refused to sign the SAO acknowledgments. The fact that the applicant made a complaint formed no part of the respondent's reasons for declining to issue certificates and transcripts.

Similarly, her demands to know the marks or grades in the mid-way exam, and in relation to each of the subjects addressed by each SAO, are by no means improper, but the absence of marks on each SAO do not render it defective as alleged. Each indicates that she was assessed as being competent in all relevant subjects, and seeks her agreement with that assessment. The only proper basis for disagreement is an opinion held by the student that he or she was incompetent. There is no evidence that Ms Obieta ever held that opinion.

We are satisfied that the remaining SAO's were not deficient in any respect. Even if they were, there is no evidence that Ms Obieta's complaint formed any part of the reason for any alleged deficiency.

On 5 January 2011, Mrs Sullivan responded by sending the SAO's again to Ms Obieta for signature, with a covering letter. In it, she explained that students were assessed as being competent, not yet competent or unsuccessful, and that specific scores for subjects were not required. Nevertheless, she obliged Ms Obieta by adding the mark of 93% to the SAO regarding the Mid-Way Examination.

She also explained that Property Management was not assessed in the final exam, as it had been covered in class assessments. She acknowledged that the agency agreement should have been listed as part of the evidence relied on to establish competency in the SAO concerning Sales Business Broking. She said its absence was an oversight by Ms Neill, who had signed the SAO. She re-enclosed that SAO for signature, amended appropriately. She enclosed also the remaining SAO acknowledgment forms for signature and return.

There was no evidence that anyone except Ms Neill had signed the SAO for Sales Business Broking. There was no evidence that Ms Neill was even aware of any complaint by Ms Obieta. We are satisfied that the complaint formed no part of the reason for the omission to refer to the agency agreement in the SAO regarding Sales for Business Brokers. The fact that it was amended at the request of Ms Obieta is compelling evidence that, contrary to Ms Obieta's complaint, it was indeed assessed by the College, and we so find.

Ms Obieta again declined to sign any of the forms. By letter dated 12 January 2011, she responded that there had been no adequate assessment of Property Management in class, and that it had formed part of the final exam. She alleged that Mrs Sullivan had intentionally refused to mark her answers in the final exam concerning this subject. She said this was 'discrimination, retaliation because of the complaint I have made and filed ...". She reasoned that this failure depressed the mark she would otherwise have obtained in the final exam. She also complained that she had handed her agency agreement to Mr Sullivan, and that he had intentionally failed to provide it to the College in retaliation for her complaint. She complained that Ms Fisher lacked the qualifications to assess the Mid-Way exam. She again insisted on knowing her marks.

With considerable patience, Mrs Sullivan replied by letter dated 24 January 2011. She re-enclosed the SAO forms for signature, and explained that the College was unable to issue transcripts and certificates until Ms Obieta signed the acknowledgements. She undertook to issue those documents on receipt of the signed acknowledgments.

The contents of this letter corroborate Mrs Sullivan's evidence, which we accept, that she stood ready to deliver the certificates and transcripts on receipt of the signed acknowledgments.

The applicant alleges that the College victimised her by refusing to assess her answers concerning the Property Management module in the final exam. All her answers were ticked by the examiner. It is clear they were assessed.

She says she was victimised by the failure to refer to that module in the Final Examination SAO. That was not detrimental to her, because she was assessed as competent in Property Management, and all the units of competency encompassed by it. The omission was not informed by her complaint, because all students received the same SAO, and the exclusion resulted solely from Mrs Sullivan's view that its inclusion was unnecessary.

Ms Obieta says that she was victimised because her Business Broking assessment was not marked, and was not mentioned in the Sales for Business Broking SAO. We are satisfied that is was marked, and that its omission from the SAO was an oversight by Ms O'Neill. There is no evidence that Ms O'Neill even knew of her complaint. It cannot have been motivated by the complaint.

Ms Obieta says she was victimised by the refusal of the College to issue her with certificates and transcripts. The failure to issue transcripts and certificates was due entirely to her failure to sign the requisite forms. It was not informed, directly or indirectly, by Ms Obieta's complaint. We are satisfied that the respondent, through its Principal Mrs Sullivan, was anxious to issue those certificates and transcripts on receipt of the signed SAO acknowledgements. All students were treated the same in that respect.

Ms Obieta said that she was victimised when she was told by Mr Sullivan not to return to class in the manner alleged. We have found that the words alleged were not uttered.

She also said that she was victimised by being unconscionably compelled to sign defective Student Assessment Outcome ('SAO') Acknowledgment forms. Much of the Tribunal's time was consumed by the applicant's attempts to prove that the SAO forms were defective. We are not satisfied that they were. Even if they were, we are not persuaded that Ms Obieta's complaint formed any part of the reason for any alleged deficiency. Still less did it form any part of the reasons for Mrs Sullivan asking Ms Obieta to sign the forms. She asked for her signature in order to satisfy the relevant regulatory requirements, to ensure that the College had evidence that it had taught the relevant subjects in case of audit, and in order to issue certificates and transcripts.

It follows that the complaints of victimisation must be dismissed.

Orders

For the reasons given, we make the following orders.

The complaints of racial discrimination victimisation are dismissed.

The complaints of victimisation are dismissed.

Costs

The respondent applies for an order that the applicant pay its costs of the proceedings, on the following grounds

that the applicant has conducted the proceedings vexatiously,

that she prolonged unreasonably the time taken to complete the proceedings,

that the relative strengths of the parties' claims merit it, and

that she declined to accept an offer made by letter dated 26 November 2012, expressly in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333, to the effect that the respondent would pay her $5,000 inclusive of interest and costs, and supply the Student Assessment Outcome acknowledgment forms, with certificates and transcripts for both courses, if the applicant would sign and return the forms, discontinue the proceedings and enter into a deed of settlement and release.

The respondent applies for costs on the indemnity basis from the date of the letter, though the offer remained open for acceptance until 10 December 2012.

Ms Obieta argues that there is no basis for a costs order, for a number of reasons. Though somewhat compendiously expressed, they may be summarised as follows.

The offer was not made pursuant to the Uniform Civil Procedure Rules. It did not comply with them in various ways, including the fact that it was expressed to be inclusive of costs and interest.

It was not left open for a reasonable time - 15 days being too short.

It was made before the respondent had served its evidence.

It did not explain the consequences of a refusal to accept, or that non-acceptance would be relied on in an application for costs.

It did not represent a real compromise, but just an invitation to discontinue for costs purposes, with no real benefit to the applicant. It was merely a 'walk away' offer.

Its terms were unreasonable. It was 'unfair and unconscionable' for the applicant to be asked to sign the SAO forms.

The applicant was justified in not responding because her case was bone fide and arguable.

The respondent never invited her to mediate.

At a settlement conference during the proceedings, Ms Obieta was asked to sign certain documents, but when she asked respondent's counsel what they were, whether they were the 'defective' student assessment outcomes, why she was being asked to sign them, and why she should sign them, he answered, "I don't know".

The respondent itself has prolonged the proceedings by producing 'adverse documentation', causing the applicant to have to investigate more issues and facts.

As a registered training organisation, the respondent must hold professional indemnity insurance.

The first six of these grounds relate to the offer of compromise. All grounds are considered below.

Legislation

By operation of clause 7 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, the power of this Tribunal to award costs is governed by section 88 of the Administrative Decisions Tribunal Act 1997, notwithstanding the repeal of that section, and the abolition of the Administrative Decisions Tribunal from 1 January 2014.

While it remained in force, section 88 provided relevantly as follows.

"(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

"(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

This gave effect to the long-standing practice of the Administrative Decisions Tribunal that, generally speaking, each party was to bear its own costs. Unlike the situation in some other jurisdictions, costs did not automatically 'follow the event'. The usual practice could only be varied if the Tribunal considered it 'fair to do so': section 88(1A). In determining whether it is fair, the Tribunal must have regard to the matters set forth in section 88(1A).

The respondent's submissions are directed to subsection (1A), in particular to paragraphs (a)(vi) - vexatiously conducting proceedings; (b) - unreasonably prolonging proceedings; (c) - relative strengths of the parties' claims; and (e) - failure to accept a reasonable offer of compromise.

We have found that the different treatment which Ms Obieta alleges she suffered at the hands of Mr Sullivan did not occur. We have found that Mr Compton probably did leave her standing as alleged, but that he did not know she was standing as he could not see, and therefore his actions could not have been on the ground of race. Ms Obieta had been told by Mr Sullivan as early as 9 December 2010 that Mr Compton was blind. Despite vigorous cross-examination as his powers of sight, she brought no evidence to prove that he was not blind. In summary, the facts alleged to have constituted racial discrimination are unlikely to have occurred at all, except for one instance. In that instance, there was no evidence to support a finding that it occurred on the ground of race. There was no evidence that any of the acts of alleged victimisation were informed by Ms Obieta's race, except perhaps the allegation that Mr Sullivan's told her not to return, which we have found did not occur.

For those reasons, we consider that the complaints, and their prosecution in these proceedings, were vexatious.

Ms Obieta chose to represent herself. The questions she asked were for the most part irrelevant, often being the subject of successful objection by the respondent. A great deal of the Tribunal's time was taken up with these objections, and with the Tribunal's attempts to assist Ms Obieta by informing her of the proper manner in which to cross-examine. She was warned repeatedly that, if she was unsuccessful, the respondent might seek an order for costs. She was warned that costs were likely to increase with the length of the hearing. The Tribunal was informed, in her presence, that the respondent would seek such an order. She proceeded nevertheless. At one stage, Ms Obieta cross-examined Mr Compton on his sight, in an apparent attempt to prove that he could see. As we have found, both his eyes have been artificial since childhood. No evidence was produced to the contrary.

In the result, a hearing that might reasonably have taken two days has taken six. We are satisfied that the manner in which the applicant conducted the proceedings has prolonged them unreasonably.

It cannot be said that there was 'no tenable basis in fact or law' for the complaints. Had the allegations of fact with regard to the conduct of Mr Sullivan's conduct been proven, some of them might have amounted to differential treatment, as Ms Obieta was the only Filipino in her class. His alleged exhortation not to return might have amounted to victimisation, if it was informed by her complaint. There was no evidence, however, that the remaining actions relied on as victimisation were so informed, and no evidence that the actions of Mr Compton were so informed.

Though we are not satisfied that all the complaints were without a tenable basis in fact or law, the relative strengths of the parties' claims could not have been more unequal. As indicated, all but one of the allegations of differential treatment were found to have been false, and in respect of that one, there was no evidence to support the allegation of causation. Ms Obieta had been warned from the outset by Mr Sullivan that Mr Compton was blind. Similarly, with the exception of the alleged exhortation to leave, there was no evidence to support the allegation that the alleged acts of victimisation were motivated by Ms Obieta's complaint, and we are not satisfied that any of them amounted to a detriment. The applicant's claims were very weak, and the respondent's commensurately strong.

For all these reasons, the grounds set forth in paragraphs (a)(vi), (b) and (c) of section 88(1A) favour a finding that it would be fair to make a costs order. It remains to consider the remaining matters argued by both parties, including the offer of compromise.

The offer of 26 November 2012 constituted a real offer, and not a mere invitation to capitulate. It provided for a real financial benefit to Ms Obieta, even if nowhere near the amount of $600,000 which she claimed. As that amount was well in excess of the Tribunal's jurisdiction, it was unreasonable to have claimed it.

It does not matter that the offer was not made under the UCPR. Those rules did not apply to the Tribunal. In any event, a Calderbank offer is a common substitute for an offer under the rules. It often informs the discretion to award costs, even if it carries no consequence under the Rules. Such offers can be expressed to include costs and interest, as here.

Fifteen days was, in our view, a reasonable period for acceptance.

There is no requirement that an offer be delayed until a party has served its evidence. Had Ms Obieta made requested time to consider the offer in light of the evidence, we might have been persuaded otherwise. There is no evidence that she even made a counter-offer at any stage. It seems that she simply ignored the respondent's offer.

Contrary to her assertion, the letter of offer did indicate that it would be relied on in an application for costs. It did so by indicating that it was made in accordance with the principles in Calderbank's case. We readily accept that Ms Obieta was self-represented, unskilled in the law, and may have been ignorant of the principles in Calderbank. However, there is no evidence that she sought any advice at all in respect of the offer. Lack of legal knowledge and its potential consequences are among the risks which applicants and plaintiffs knowingly take when they elect to commence and prosecute themselves as self-represented litigants. Though that election is their right, it does not give them an unwarranted advantage over parties who are legally represented, enabling them for instance to escape the ordinary consequences of a reasonable offer of compromise.

We are not convinced that it was unconscionable for the applicant to be asked to sign the SAO acknowledgments. On the contrary, it was a reasonable requirement.

For the reasons already given, we are not persuaded that the applicant's case, on the whole, was bone fide or arguable.

It follows that some weight ought be given to the applicant's failure to accept the offer. Like the grounds set forth in the other paragraphs of section 88(1A), it supports the making of a costs order. Whether it justifies indemnity costs is another matter, considered below.

The applicant complains that the respondent never invited her to mediate. That is not a matter which in our view militates against an order for costs. It might be of some relevance if it declined her invitation to mediate. That is not alleged.

Even if, as alleged, respondent's counsel declined to advise or assist Ms Obieta at a settlement conference, as to which we make no finding, that is not a matter that would militate against a costs order. Proceedings in the Tribunal were typically conducted adversarially, even in the Equal Opportunity Division, as was the case here. It forms no part of the duty of respondent's legal representatives to advise or assist the opposite party, whether legally represented or not.

Ms Obieta did not specify the 'adverse documentation' which she alleges was produced by the respondent, or how it had the effect of prolonging proceedings. All the respondent's documentary evidence was brought in answer to her allegations of discrimination and victimisation. It was entitled to bring that evidence. This does not militate against a costs order.

The fact that a respondent may be insured, and therefore not itself liable to pay the costs of proceedings, is a matter which may be taken into account under paragraph (e) of section 88(1A). In a human rights jurisdiction, it is conceivable that there might be circumstances where the nature and existence of cover would convince the Tribunal either not to impose a costs order, or to vary its nature. However, even if the respondent carries insurance, there is no evidence either that cover has been confirmed, or as to the level of cover, or as to the amount of excess. The Tribunal is unable to draw any conclusions as to the extent to which the respondent has been financially affected by the proceedings. The mere existence of cover, without more, would not persuade the Tribunal that it was not fair to make a costs order where, as here, there are other grounds which amply favour the grant of an order for costs, including a finding that the proceedings were conducted vexatiously.

For all these reasons, notwithstanding the usual rule that parties bear their own costs, the applicant's lack of legal representation, and the general reluctance of the Tribunal to make an order for costs in its human rights jurisdiction, we are persuaded that it would be fair to make an order for costs.

It remains to consider the application that costs be awarded on the indemnity basis. The task of the Equal Opportunity Division was to administer human rights legislation. Because of the 'chilling effect' that costs orders may have had on the exercise of those rights by persons the subject of discrimination, harassment or victimisation, a particular caution was always exercised in that Division in the making of costs orders against an unsuccessful applicant: see ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154 and the cases cited therein. Particular caution ought be exercised when considering an application for costs on the indemnity basis. In this jurisdiction, the Tribunal would not be as quick to award such costs as a court in which costs normally follow the event, merely by reason that an unsuccessful applicant has declined an offer that was more favourable than the result.

We consider that caution is appropriate in this case. The offer, though reasonable, was not particularly generous. The time for acceptance, though reasonable, was in our view the minimum necessary to make it so. It is likely that an award on the indemnity basis would aggravate the 'chilling effect' that the costs order which we propose to make will have. In all the circumstances, we are not persuaded that an award on the indemnity basis is appropriate, notwithstanding the practice of jurisdictions in which costs normally follow the event.

The applicant is to pay the respondent's costs of the proceedings as agreed or assessed.

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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: 04 February 2014

Medium Neutral Citation:	Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAD 8
Hearing dates:	6, 7 and 8 March 2013, 23 and 24 May 2013, 31 July 2013
Decision date:	04 February 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R J Perrignon Senior Member J McClellan General Member N Hiffernan General Member
Decision:	1.The complaints of discrimination on the grounds of race are dismissed. 2.The complaints of victimisation are dismissed. 3.The applicant is to pay the respondent's costs of the proceedings as agreed or assessed
Catchwords:	Direct discrimination on the grounds of race; whether comparators available; whether differential treatment occurred on the grounds of race; Victimisation; whether detriment suffered; whether on the grounds of race
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Obieta v Australian College of Professionals Pty Ltd [2012] NSWADT 2008
Category:	Principal judgment
Parties:	Lina Socorro Obieta (Applicant) Australian College of Professionals (Respondent)
Representation:	Counsel: C O'Neill (Respondent) Solicitors: L Obieta (Applicant in person) Wotton & Kearney (Respondent)
File Number(s):	121008