Petrak v Griffith University & Ors - [2020] QCAT 351

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Petrak v Griffith University & Ors [2020] QCAT 351

PARTIES: MELISSA JANE PETRAK

(applicant)

v

GRIFFITH UNIVERSITY

CAROL-JOY PATRICK

KIERAN TRANTER

(respondents)

APPLICATION NO/S:

ADL092-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

11 September 2020

HEARING DATES:

7 and 8 May 2019, 31 July 2019, and 11 May 2020.

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The complaint is dismissed.

CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that she had been treated badly by the university – whether the construction of a hypothetical comparator can be informed by factual findings, including the ‘reason why’ – whether direct discrimination

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that the university had not made reasonable adjustments in the timing and manner of her assessments – where her indirect discrimination claim had been struck out by the tribunal – the extent to which a failure to make reasonable adjustments can be direct discrimination

Anti-Discrimination Act 1991 (Qld), s 5, s 8, s 10, s 11,
s 178, s 208
Human Rights Act 2019 (Qld), s 13, s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 95

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

Kalu v Brighton and Sussex University Hospitals NHS Trust (2014) UKEAT/0609/12
Lyons v State of Queensland [2015] QCA 159
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
Petrak v Griffith University and Ors [2018] QCAT 356
Purvis v New South Wales (2003) 217 CLR 92
Shamoon v Chief Constable of the RUC [2003] UKHL 11
Vuga v Persal & Co Trading Pty Ltd [2017] QCAT 368
Waters v Public Transport Corporation (1991) 173 CLR 349
Woodforth v State of Queensland [2017] QCA 100

Yu Ping Xi v WorkCover Queensland [2016] QCATA 134

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

A C Freeman counsel, instructed by Minter Ellison

REASONS FOR DECISION

Melissa Jane Petrak made a complaint to the Anti-Discrimination Commission Queensland, now the Queensland Human Rights Commission, about how she had been treated as a student, by Griffith University and by two of its employees.
Ms Petrak claimed that she had attributes recognised by the Anti-Discrimination Act 1991 (Qld) and that she had been discriminated against on the basis of those attributes in various ways, and she had also suffered actionable victimisation.
The tribunal required Ms Petrak to file her ‘contentions’. She relied on direct discrimination, indirect discrimination, and victimisation.

The issues

Since the factual and legal issues in the complaint were unclear, and in response to an application from the respondents to strike out the complaint, a member of the tribunal held an oral hearing on 29 March 2018. What happened at the hearing is reported at Petrak v Griffith University and Ors [2018] QCAT 356, a decision of 9 October 2018.
The issues in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 351
Decision Date: 11 September 2020

CaseChat Overview and Summary

Petrak, a student with a disability, brought a complaint against Griffith University and others, alleging direct discrimination in the way they handled her academic assessments. The university argued that it had provided reasonable adjustments, while Petrak claimed these were inadequate. The dispute reached the court, which was tasked with determining whether Petrak's treatment constituted direct discrimination under the relevant legislation. Specifically, the court needed to consider whether the construction of a hypothetical comparator could be informed by factual findings, including the 'reason why' the university acted as it did, and whether Petrak's complaint about the failure to make reasonable adjustments constituted direct discrimination.

The court examined the statutory framework governing discrimination and the concept of direct discrimination. It considered whether the hypothetical comparator approach could be informed by factual findings, including the reasons for the university's actions. The court also scrutinised the nature of the reasonable adjustments provided and whether their absence could constitute direct discrimination. The tribunal's decision to strike out the indirect discrimination claim was reviewed to assess its impact on the direct discrimination claim.

In its reasoning, the court concluded that the hypothetical comparator approach could indeed be informed by factual findings, including the reasons for the university's actions. However, it found that the university had made reasonable adjustments, albeit perhaps not perfectly executed. The court determined that the failure to make perfect adjustments did not amount to direct discrimination. Consequently, Petrak's complaint was dismissed. The court upheld the tribunal's decision to strike out the indirect discrimination claim, as it was considered to have no bearing on the direct discrimination claim.

Orders

Orders of the court

The complaint is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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