Pazios v Pulteney Grammar School (NO. 2) - [2008] SAEOT 14

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL (NO. 2)
[2008] SAEOT 14
Judgment of Her Honour Judge Trenorden, Member Ms H Jasinski and Member Mr D Shetliffe
26 November 2008
ADMINISTRATIVE LAW
Application to amend Particulars of Complaint to join parents of complainants to the proceedings - Whether parents have a legitimate interest in the proceedings - Whether parents fall within the definition of "persons aggrieved".
HELD: Application to amend allowed.
Equal Opportunity Act 1984; Human Rights and Equal Opportunity Commission Act 1986 (Cth), referred to.
Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 at 313, considered.

PAZIOS & ANOR v PULTENEY GRAMMAR SCHOOL (NO. 2)
[2008] SAEOT 14
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

The complainants Peter Pazios and Kristofer Pazios, by their litigation guardian Mary Pazios, have sought to amend their Particulars of Complaint in a number of respects. The proposed amendments are opposed in one respect only.
It is sought to add, as parties to the proceedings, the parents of Peter and Kristofer Pazios, namely Mary Pazios and Spiro Pazios. It is proposed that the Particulars of Claim would, if the amendments are allowed, read as follows:
TAKE NOTICE that pursuant to Section 95(8)(b) of the Equal Opportunity Act, 1984 (“the Act”), the Commissioner for Equal Opportunity has referred a complaint made by Mary Pazios, Spiro Pazios, and on behalf of Peter and Kristofer Pazios by their litigation guardian Mary Pazios alleging that the Respondent has acted in contravention of the Act to the Equal Opportunity Tribunal for a determination of the complaint and for consequential relief.
The particulars of claim would follow together with the particulars of discrimination, the particulars of statutory breach of the respondent and the orders sought.
Argument proceeded before the Tribunal solely in relation to whether the parents Mary and Spiro Pazios could be joined as parties to the complaint before this Tribunal.
The Equal Opportunity Act 1984
The long title of the Equal Opportunity Act 1984 includes “an Act to promote equality of opportunity between the citizens of this State” and to prevent certain kinds of discrimination.
Certain kinds of discrimination are declared to be unlawful. It is unlawful for an educational authority to discriminate against a student as set out in s 37(2) of the Equal Opportunity Act. The Complaint alleges discrimination contrary to s 37(2) and s 29(2)(a), that is, discrimination by an educational authority against a student on the ground of sex.
Part 8 deals with enforcement of the Equal Opportunity Act and enables the making of a complaint to the Commissioner for Equal Opportunity alleging that a person has acted in contravention of the Equal Opportunity Act. Section 93(1) sets out those persons who may make a complaint. It appears that a complaint may only be made by a person aggrieved by the act alleged to be in contravention of the Equal Opportunity Act except where the person aggrieved by the act has an intellectual impairment. A complaint may be made on behalf of another, but only by a person who is also aggrieved by the same alleged act of contravention of the Equal Opportunity Act. “Person aggrieved” is not defined by the Equal Opportunity Act.
Where the Commissioner has attempted to resolve the matter of the complaint by a conciliation but has not been successful in that attempt, the Commissioner must refer the matter to the Tribunal for hearing and determination: s 95(8)(b).
This Tribunal is established by Division 2 of Part 2 of the Equal Opportunity Act. The Tribunal has certain powers and duties given to it by Division 2 of Part 2 of the Equal Opportunity Act, and in addition, has the power set out in s 96, in Division 1 of Part 8 of the Equal Opportunity Act, being that part of the Equal Opportunity Act that addresses enforcement. In this Part, the Tribunal is given the power to direct that a person be joined as a party to the proceedings before it, where, in the Tribunal’s opinion, “a person ought to be bound by, or have the benefit of, its determination, or is otherwise legitimately interested” in the proceedings: s 24(3).
The Complainant’s Arguments
Mr Evans QC, for the complainants, submitted that the Tribunal should allow the amendment to join the parents of the complainants to the proceeding, because as parents of the complainants, they have a legitimate interest in the proceedings before the Tribunal. This legitimate interest included that they paid the school fees of the complainants.
In addition, it was submitted that the Tribunal had the power, once it had determined that a respondent in proceedings had acted in contravention of the Equal Opportunity Act, to order that the said respondent pay compensation to any person for loss or damage arising from the contravention.
In this case, should the allegation of contravention against the respondent be successful, it is submitted that it would be open to the Tribunal, and logical for it to make, an order for payment of compensation to the parents of the present complainants, on the basis that they have paid the school fees of the complainants.
The Respondent’s Arguments
The respondent says that there is no reasonable cause of action on the face of the proposed amended Particulars of Complaint, sufficient to join the parents as parties to the proceedings. Mr Stanley QC, for the respondent, submitted that, read in the context of other provisions of Part 8 of the Equal Opportunity Act, s 96(1)(a) does not enable the Tribunal to make an order requiring compensation to be paid to any person who is not a person aggrieved by a contravention of the Equal Opportunity Act, and further that the parents are not persons aggrieved.
In the alternative, Mr Stanley submitted that if the complainant’s argument in respect to s 96(1)(a) is correct, namely that once a respondent has been found to have acted in contravention of the Equal Opportunity Act, the Tribunal has power to make an order requiring the respondent to pay compensation to any person for loss of damage arising from the contravention, then it would not be necessary to join the parents as parties. The Tribunal would have confirmed its power to make an order notwithstanding that the beneficiary of the order was not a party to the proceedings.
The Tribunal’s Reasoning
A Complaint has been lodged by Peter and Kristofer Pazios. They assert that they are persons aggrieved by an act by the respondent in contravention of the Equal Opportunity Act. As a result of a referral by the Commissioner for Equal Opportunity, the Complaint has become proceedings in this Tribunal.
It is clear from the power in s 24(3)(a), that if the Tribunal forms the opinion that a person is legitimately interested in proceedings before it, whether because that person ought to be bound by or have the benefit of its determination or otherwise, it may direct that the person be joined as a party to the proceedings.
We are satisfied that Mary Pazios and Spiro Pazios have a legitimate interest in the proceedings before the Tribunal originally commenced as a complaint by or on behalf of their sons Peter and Kristofer Pazios. We have reached that decision for the following reasons:
·       The complainants are students at the respondent’s school where it is alleged they were discriminated against on the ground of their sex, in respect of the fees paid for their education during the relevant period at this school.
·       The parents have paid the school fees for the relevant period for the education of the complainants at the respondent’s school.
·       Any financial loss suffered in consequence of the alleged contravention by the respondents was suffered by the parents.
·       The parents, as parents of the complainants, have an interest in the treatment of their children by the school (and whether they have suffered discrimination) they have chosen for the education of their children.
Upon the application of, or on behalf of the parents, we would direct that they be joined as a party to the proceedings.
In addition, we have concluded that the parents have a legitimate interest in being joined to the proceedings because it is open to the Tribunal to make an order, in the event that the complainants’ case is successful, requiring the respondent to pay compensation to the parents, pursuant to s 96(1)(a) of the Equal Opportunity Act.
Mr Stanley QC argued that the power in s 96(1) is limited to a “person aggrieved by an act in contravention of the Equal Opportunity Act as contemplated by s 93(1), rather than literally, any person.” Assuming Mr Stanley’s argument is correct, the parents would, in any event, fall within the class of persons being “persons aggrieved” contemplated by s 93(1).
A recent decision of the Federal Court of Australia is persuasive in this regard. I refer to Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 at 313 per Collier J. In that judgment, His Honour Justice Collier canvassed the meaning of “person aggrieved” in the context of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). At issue was whether the applicant, being an incorporated association, could be an aggrieved person for the purposes of the HREOC Act.
Similarly to the Equal Opportunity Act and the Equal Opportunity Commission, the HREOC Act, at the relevant time, enabled a person aggrieved by alleged unlawful discrimination to lodge a complaint with the Human Rights and Equal Opportunity Commission and for a complainant to ultimately proceed to the Court from the Commission; in that case the Federal Court. As with the Equal Opportunity Act, the term “person aggrieved” was not defined in the HREOC Act.
Collier J formed the view that there were a number of principles relevant to the determination of whether a person was a person aggrieved, including the following:
·       The question is a mixed question of fact and law.
·       The test is objective – a person does not qualify as a person aggrieved merely because he or she feels aggrieved by the conduct but must in the judgment of the Court, be aggrieved by the said conduct.
·       The words “person aggrieved” have been explained by the courts in terms of special interest in the public law sense, in the context of the legislation in which they are expressed.
·       The term “person aggrieved” should not be interpreted narrowly.
·       In interpreting “person aggrieved” it is appropriate to accord a construction that would promote the purpose or object underlying the relevant legislation rather than a construction that would not promote that purpose or object (in reliance upon statutory interpretation legislation).
It seems to us that the term “person aggrieved” in s 93 of the Equal Opportunity Act is broad enough to encompass the parents of the complainants. In the context of s 93, a person aggrieved has to be aggrieved by the contravention of the Equal Opportunity Act that it is alleged the respondent engaged in.
In these proceedings, it is alleged that the complainants were discriminated against by the respondent in that they were not offered either foundation scholarships or increased sibling rebates by the respondent, as were prospective female students. Given that the complainant’s fees are alleged to have been paid by the parents, it follows that there is an argument that the parents were aggrieved by the act of contravention alleged, at least in addition to the complainants.
Thus, in our view, it is open to the parents to argue that, considered objectively, they were also persons aggrieved by the act of contravention alleged to have been committed by the respondent.
It follows that we are satisfied that even if the respondent’s argument to the effect that s 96(1)(a) only permits the Tribunal to make an order requiring the payment of compensation to a person aggrieved by the act of contravention, we are satisfied that the parents fall within that class of persons.
Decision
There are a number of amendments to the Particulars of Complaint. None were opposed except that which would result in the parents being made parties to the proceedings. We have decided that it is appropriate to allow the amendment to join the parents as parties to the proceedings. We propose an order allowing the Particulars of Complaint to be amended in accordance with the document attached to the Application for Directions which was undated but filed in this Court on 12 December 2007.