Pazios & Anor v Pulteney Grammar School
[2008] SAEOT 7
•7 May 2008
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL
[2008] SAEOT 7
Decision of Her Honour Judge Trenorden, Member Ms H Jasinski and Member Mr D Shetliffe
7 May 2008
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - SEXUAL HARASSMENT
Application to dismiss proceedings - Nature of test - Whether no reasonable prospect of success.
HELD: Application dismissed.
Equal Opportunity Act 1984; Equal Opportunity Tribunal Rules 1988, referred to.
Duke Group Ltd v Arthur Young (No. 4) (1991) 55 SASR 24; JT Nominees Pty Ltd v Macks [2007] SASC 151; McGlade v Human Rights and Equal Opportunity Commission and Another (2000) 180 ALR 507; Purvis v State of New South Wales and Another (2003) 217 CLR 92; Travers v State of New South Wales [2000] FCA 1565; Ellson v PB Taxi Co. Pty Ltd [2008] SAEOT 6; General Steel Industries Inc v Commissioner for Railways (NSW) & Others (1964) 112 CLR 125, considered.
PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL
[2008] SAEOT 7THE TRIBUNAL DELIVERED THE FOLLOWING DECISION:
Peter Pazios and Kristofer Pazios (the complainants, by their litigation guardian, Mary Pazios), lodged with the Commissioner for Equal Opportunity a complaint of discrimination on the ground of sex against the respondent Pulteney Grammar School (Pulteney). The complaint was lodged on 1 August 2006.
On 7 September 2007 the complaint was referred to this Tribunal by the Commissioner for Equal Opportunity.
This decision is in relation to the application by Pulteney of 23 January 2008 for an order “that the Complainants' actions be dismissed”. The complainants have also sought to amend the particulars of complaint.
By its long title, the Equal Opportunity Act 1984, is an Act to promote equality of opportunity between the citizens of South Australia, and to prevent certain kinds of discrimination including that based on sex, as well as for other purposes. By s 93, a person aggrieved by an act alleged to be in contravention of the Equal Opportunity Act, may make a complaint to the Commissioner and in certain circumstances the Commissioner must refer the matter to this Tribunal for hearing and determination: s 95(8).
This Tribunal’s powers to make orders in respect of the complaint are set out in s 96. They include a discretionary power to make an order dismissing the proceedings, at any stage of the proceedings: s 96(2). It is pursuant to that power that Pulteney seeks an order dismissing the complaint.
The Appropriate Test
The Equal Opportunity Act and the Equal Opportunity Rules 1988 are silent as to the appropriate test to be applied, upon an application by a party to dismiss the proceedings.
In Ellson v PB Taxi Co. Pty Ltd & Anor [2008] SAERDC 6, a recent decision of this Tribunal on an application by the first respondent to have the complainant’s claim against it dismissed, the Tribunal said that the test in the Tribunal should not be different from that applicable in a Court, and held that it was necessary for the applicant (for an order to dismiss of the proceedings) to show that the claim or complaint was really lacking in merit. The Tribunal in its reasons equated “really lacking in merit” with there being no likelihood of success of the complaint against the applicant.
In argument, Pulteney contended that the particulars of the complaint “failed to disclose a complaint that enjoys any reasonable prospect of success” and referred the Tribunal to judgments of the Federal Court with respect to equal opportunity matters, namely McGlade v Human Rights and Equal Opportunity Commission & Another (2000) 180 ALR 507 and Travers v State of New South Wales [2000] FCA 1565.
Counsel for the complainants submitted that the discretion of the Tribunal with respect to an application to dismiss the proceedings is unfettered and further, that the Tribunal is not bound to rely upon any provision of the Supreme Court Rules where the Equal Opportunity Tribunal Rules are silent. Counsel further submitted that at an early stage of the proceedings, the appropriate test is not the test under the Supreme Court Rules in particular SCR 232(2)(b) as to whether there is a reasonable basis for the claim, but the more stringent test identified in General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125.
We agree that the test is unfettered. The decision in Ellson did not suggest otherwise, but merely expressed a view that the test in the Tribunal should not be different from that applicable in a Court (in South Australia).
In effect, neither party submitted that the test to be applied upon an application to the Tribunal to dismiss proceedings is that prescribed for matters in the Supreme Court by Rule 232 (2)(b).
The test arrived at in General Steel was an interpretation by the High Court of Order 26 rule 18 of the former High Court Rules; namely that the Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer. The Court held that the test was very high, and cautioned that “great care must be exercised to ensure that ... a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed Tribunal”: General Steel at page 130.
The stringency of the test is not surprising, having regard to the decision being sought on the basis only, of the pleadings: JT Nominees Pty Ltd v Macks [2007] SASC 151 at paragraph 53.
In Ellson, the Tribunal quoted passages from Dey v Victorian Railways Commissioners (1949) 78 CLR 62, an appeal from the dismissal of an action on the grounds that it was frivolous, vexatious and an abuse of process of the Court. In General Steel, which referred to Dey with approval, the need for exceptional caution in exercising the power to summarily terminate an action was emphasised, regardless of whether the application had been made pursuant to a statutory rule or the inherent jurisdiction of the Court. The application in General Steel sought the exercise by the Court of its inherent jurisdiction to stay actions that are frivolous, vexatious and an abuse of process of the Court, and also orders under Order 26 rule 18, for which the latter purpose consideration was confined to the Statement of Claim. The Court, having held that the Statement of Claim failed to disclose a reasonable cause of action, struck out the Statement of Claim and dismissed the plaintiff’s action, pursuant to its power under Order 26 rule 18.
The Rules of the Tribunal appear to be designed to formalise pleadings in respect of a complaint by providing that particulars of the complaint are to be filed, followed by an answer from the respondent and a reply to the answer by the complainant.
The power of the Tribunal under s 96(2)(b) is not limited in its exercise to a consideration of the pleadings or any particular stage of the proceedings.
It follows in our view that, upon an application by a respondent for the Tribunal to exercise its power under s 96(2)(b), the Tribunal must be satisfied, on what is before it at that time, that there is no reasonable prospect of success of the complaint. Accordingly, it is open to the Tribunal to reach that conclusion on the basis of the pleadings alone or the pleadings together with any affidavit that has been filed at any stage of the proceedings.
Whether There Is No Reasonable Prospect of Success
In this matter the pleadings are in some disarray. Particulars of complaint were filed on 10 September 2007. The complaint is that the respondent unlawfully discriminated against the complainants in contravention of s 37(2)(b) of the Equal Opportunity Act. On 19 September 2007 an answer was filed on behalf of the respondent and on 14 November 2007 the complainants filed a reply thereto.
In addition, although no amended reply has been filed, there is on the Tribunal file as part of exhibit RMB2 to the affidavit of Rosalind Marion Burke sworn on 27 November 2007, a “proposed amended reply”. Further, proposed amended particulars of complaint were filed as part of an application seeking an order permitting amended particulars of complaint to be filed, which application was lodged in the Court on 12 December 2007.
Section 37(2)(b) of the Equal Opportunity Act provides as follows:
(2) It is unlawful for an educational authority to discriminate against a student –
…
(b) by denying or limiting access to any benefit provided by the authority; or
…
The respondent admits that it is an educational authority within the meaning of the Act. Section 37 is in Part 3 of the Equal Opportunity Act, which addresses the prohibition of discrimination on the ground of sex, sexuality, marital status and pregnancy. Section 29(2)(a) in Part 3 of the Act provides that for the purposes of the Equal Opportunity Act a person discriminates on the ground of sex if, inter alia, he or she treats another person unfavourably because of the other’s sex.
A person (the discriminator) treats another person unfavourably on the basis of the sex of that person if the discriminator treats that other person less favourably than in identical or similar circumstances the discriminator treats or would treat a person of the other sex: s 6(3) of Equal Opportunity Act.
It is alleged in the Particulars of Claim that the respondent unlawfully discriminated against the complainants on the ground of sex by denying them or limiting their access to a benefit, namely a scholarship or scholarships, because they were not female.
It is asserted on behalf of the respondent that the benefit was not a benefit to the complainants because the benefit of any scholarship was a financial benefit that would have accrued to the complainants’ parents as the persons who paid the respondent for the complainant’s education. The benefit would not have accrued to the complainants themselves, it is submitted, and therefore the complainants cannot claim to have been treated unfavourably.
It seems to us that it is open to the complainants to show discrimination at the hands of the respondent, having regard to s 29(2) and s 6(3) of the Act. The respondent submits that the benefit was not a benefit that would have directly benefited the complainants themselves. However, it is a matter for argument as to whether the benefit has to directly benefit the complainants themselves or whether it is sufficient for the benefit to be something which only indirectly benefits them.
In any event, we are concerned that the emphasis on “benefit” is misplaced. It is the denial or limitation of access to a benefit on the ground of sex that is proscribed by the Equal Opportunity Act. It seems to us open to the complainants to show that they were denied access to a benefit, namely the benefit of any scholarship provided for female students or intending female students by the respondent, on the ground of their sex.
We acknowledge that there may be an argument as to the appropriateness of the orders sought. They are as follows:
18.1Damages.
18.2That the unlawful conduct referred to above cease.
18.3That the Respondent provide the Complainants with written acknowledgement that in engaging in the conduct referred to above it unlawfully discriminated against the Complainants.
18.4That the Respondent provide the Complainants with a written apology.
It is conceivable that the complainants were discriminated against but are not entitled to any award of damages as claimed, or even compensation, because that remedy is not available to the complainants by reason of the nature of the discrimination. However, that is an argument for the hearing, and a matter that can be addressed by amendment of the complaint.
We are unable to find that there is no reasonable prospect of success of the complaint by the complainants. Contrary to the submission on behalf of the respondent, we do not accept that as a matter of statutory interpretation of the Equal Opportunity Act, there is no reasonable prospect of success. While it clearly is the case that much depends on statutory interpretation, that might not be the sole determinant of the case, as presently viewed by us. The complainants should have an opportunity to present their case fully.
Amendments
We note that there is an application on behalf of the complainants to amend the particulars of the complaint. Counsel for the respondent indicated that the amendments proposed were not opposed, with one exception. The amendment whereby it is proposed to add the parents of the present complainants as additional complainants is opposed by the respondent.
We are yet to hear full argument in relation to the proposed amendments that are opposed. That will be the next step in these proceedings.
Conclusion
For the reasons herein, the application to dismiss the proceedings has not succeeded. There will be an order that the application is dismissed.
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