Price v Det (NSW)
[2008] FMCA 1018
•28 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRICE v DET (NSW) | [2008] FMCA 1018 |
| HUMAN RIGHTS – Disability discrimination – “complaint” – complainant does not need to identify those sections of the relevant Act on which the success of the complaint depends – it is sufficient to allege than an act of unlawful discrimination has occurred – the way a complaint is expressed should not be construed unduly strictly – Court has no jurisdiction to entertain complaints not subject to the HREOC Notice of Termination. PRACTICE & PROCEDURE – No reasonable prospects of success – summary dismissal application – appropriate test. PRACTICE & PROCEDURE – Complaints of disability discrimination – complaint first brought to NSW Anti-Discrimination Board under NSW legislation cannot be brought again to HREOC under Commonwealth legislation – s.13(4) Disability Discrimination Act 1992 – no cause of action – application dismissed. |
| Anti-Discrimination Act 1977 (NSW), ss.49A, 49B, 49L, 49M, 89B Human Rights & Equal Opportunity Commission Act 1986, ss.3, 46P, 46PH, 46PO Disability Discrimination Act 1992, ss.13, 22, 32 Federal Court of Australia Act 1976, s.31A Federal Magistrates Court Rules 2001, r.13.10 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Hocking v Bell (1947) 75 CLR 125 Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 Rana v University of South Australia [2004] FCA 559 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 Jefferson Ford Pty Limited v Ford Motor Company of Australia Ltd [2008] FCAFC 60 Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 Travers v State of New South Wales [2000] FCA 1565 Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721 Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 Jandruwanda v Regency Park College of TAFE [2003] FCA 1455 Yee v North Coast Area Health Service [2007] FMCA 1788 Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 |
| Applicant: | TYLER PRICE BY HIS TUTOR, KATHERINE COURT |
| Respondent: | DIRECTOR GENERAL, DEPARTMENT OF EDUCATION & TRAINING (STATE OF NEW SOUTH WALES) |
| File Number: | SYG 659 OF 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 4 June 2008 |
| Date of Last Submission: | 4 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Gormly |
| Solicitors for the Applicant: | Louise Butt Lawyers |
| Counsel for the Respondents: | Ms J. Oakley |
| Solicitors for the Respondents: | I.V Knight, Crown Solicitor |
ORDERS
Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001, the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 659 of 2008
| TYLER PRICE BY HIS TUTOR, KATHERINE COURT |
Applicant
And
| DIRECTOR GENERAL, DEPARTMENT OF EDUCATION & TRAINING (STATE OF NEW SOUTH WALES) |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 19 March 2008 the applicant seeks relief on the basis that the respondent (“Department”) has discriminated against him in the provision of educational services.
The applicant’s parents, now divorced, had made an application to the NSW Anti-Discrimination Board (“ADB”) on 19 August 2003 under ss.49A, 49B, 49L and 49M of the Anti-Discrimination Act 1977 (NSW) which was resolved by an agreement entered into between the applicant’s parents and the Department on 17 December 2003.
The agreement provided, amongst other things, for the applicant to be accepted as a student of the Department’s Distant Education Support Unit (“DESU”) commencing in term one of 2004.
At the end of 2006, the Department decided that the applicant should no longer be a DESU student. The local departmental regional office thereafter contacted the applicant’s mother to make arrangements for his future education.
Following the Department’s decision of late 2006, the applicant’s mother sent a letter of complaint to the ADB. In its reply of
13 February 2007the ADB summarised the complaint in the following terms:
Having read all of the above the [sic] material, I understand that you have a large number of grievances concerning the educational services provided by the DESU… in relation to your son, Tyler. One of these grievances relates to the Department’s decision to discontinue Tyler’s enrolment in the DESU.
In its letter of 13 February 2007 the ADB rejected the complaint on the basis that it did not disclose any contraventions of a provision of the NSW Anti-Discrimination Act.
On 30 March 2007 the applicant’s mother lodged a complaint on his behalf with the Human Rights and Equal Opportunity Commission (“Commission”) alleging disability discrimination and a breach of the applicant’s human rights by “a federal government agency”. In support of that application, the applicant’s mother submitted a letter dated
12 March 2007in which she made the following allegations:
a)the applicant suffered from a serious condition which she identified;
b)in 2003 the Department and the applicant’s parents had signed a memorandum of agreement placing the applicant with the DESU;
c)on 29 October 2006 the Department advised the applicant’s mother that they would be withdrawing him from the DESU;
d)on 27 November 2006 a Departmental meeting was held at which such a decision was made;
e)on 15 December 2006 the Department’s regional office wrote outlining options for the applicant’s future education.
The applicant’s mother’s letter dated 12 March 2007 to the Commission said:
Whilst the Department of Education has violated the Anti-Discrimination Board Agreement, legal advise [sic] has been given to us to file our complaint with HREOC as it is our intent to obtain a reinstatement of Tyler’s enrollment [sic] with DESU under Current DESU guidelines.
Tyler Price has now been denied an education for TWO YEARS. We are requesting an investigation from HREOC so that any lack of compliance by DESU can be brought to your attention. We are requesting that HREOC intervene immediately so that Tyler’s education can be continued by DESU under DESU guidelines.
As part of HREOC’s parameters we are requesting that Tyler’s right to an education be reinstated as per his legal right.
An attempt to conciliate the parties’ dispute was unsuccessful and the Commission terminated the complaint pursuant to s.46PH(1)(i) of the Human Rights & Equal Opportunity Commission Act 1986 (“HREOC Act”) on the ground that it was satisfied that there was no reasonable prospect of the matter being settled by conciliation.
These proceedings were then commenced by an application filed on
19 March 2008alleging that the Department had directly discriminated against the applicant on the grounds of his disabilities:
a)by failing to provide adequate supervision by a fully trained teacher;
b)by removing the applicant from the DESU;
c)by proposing that the applicant be enrolled in home-schooling; and
d)by failing to provide the applicant with resources such as a computer, printer and software.
The applicant further alleged that the Department had indirectly discriminated against him by requiring him:
a)to attend an identified public school;
b)to enrol in home schooling or distance education; and
c)to complete modules of work which were not adapted to his particular disability.
Interlocutory application
By an application in a case dated 16 May 2008 the Department seeks the dismissal or a stay of the proceedings pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (“Rules”) which provides:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
The Department submits that:
a)the Commission had no power to terminate the complaint which had been brought to it because that purported complaint did not identify any alleged unlawful discrimination;
b)the application to the Court is incompetent because it relies on the termination of a purported complaint which was, in fact, not a complaint at all, and thus the criterion for the bringing of proceedings under s.46PO(3)(a) is not met;
c)it was not permissible for the applicant to raise allegations in this Court which had not been part of the HREOC complaint; and
d)s.13(4) of the Disability Discrimination Act 1992 prevented the bringing of these proceedings as the applicant had made a complaint in respect of the same matters to the ADB.
Reasonable prospects of success
The grant of power supporting r.13.10 is s.17A of the Federal Magistrates Act 1999. Relevantly, s.17A provides:
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Section 17A was inserted into the Court’s statute by the Migration Litigation Reform Act 2005 and commenced on 1 December 2005.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Rares J considered s.31A of the Federal Court of Australia Act 1976 which is equivalent to s.17A of the Federal Magistrates Act. His Honour concluded that where there is a real issue of fact to be decided, it was appropriate that the matter went to trial. His Honour described the situation of there being a real issue of fact as being where the evidence is not all one way so that only one conclusion can be said to be reasonable, as considered in Hocking v Bell (1947) 75 CLR 125 at 130 – 131. His Honour also suggested that the matter ought to go to trial where there is a real issue of law of a similar kind. In his Honour’s view:
… in assessing what reasonable prospects of success are for the purposes of s.31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s.31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s.31A envisages. [at 45]
Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms:
• In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
• There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
• Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
• Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.
In the context of this Court, what Jacobson J said in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd should be considered in the light of Lander J’s comments in Rana v University of South Australia [2004] FCA 559, notwithstanding that Lander J was speaking prior to the introduction of s.17A:
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim. (at [75])
In this Court in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157, Driver FM agreed with and applied the summary of principles set out by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd. His Honour also commented that in considering when an apparently hopeless case can be saved by amendment or further evidence, the conduct of the party requiring such indulgence and the circumstances of the proceedings could be considered when determining whether that indulgence would be given. Consequently, Driver FM added another point to Jacobson J’s summary:
• The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant. (at [30])
Recently, the Full Court of the Federal Court has considered s.31A of the Federal Court of Australia Act, in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60. Their Honours’ decision was discussed by Edmonds J in Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905. As his Honour observed, in the Jefferson Ford case Finkelstein and Gordon JJ expressed views which differed from each other and from the views expressed by Rares J in Boston Commercial Services, while Rares J noted that the parties to the appeal had accepted that the test to be applied was the test which he had stated in Boston Commercial Services and, as they had not argued the point, concluded that it was neither necessary nor appropriate to examine the issue in that appeal.
In the Spiteri case Edmonds J did not reach an express conclusion regarding which of their Honours’ judgments was to be preferred and I am of the view that in the absence of a clear expression by the Full Court of the Federal Court to the contrary, I should apply the test which was expressed by Rares J in Boston Commercial Services, as approved in subsequent decisions in the Federal Court and as elaborated on by Driver FM in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd.
Complaint to Commission identified no alleged unlawful discrimination
The Department submitted that the complaint to the Commission did not identify an act or an omission which amounted to unlawful discrimination. The Department submitted that this was significant because s.46P of the HREOC Act only permits complaints to be lodged with the Commission if they allege “unlawful discrimination” which is defined in s.3(1) of the HREOC Act in the following terms:
unlawful discrimination means any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a)Part 2 of the Disability Discrimination Act 1992; or
(b)Part II or IIA of the Racial Discrimination Act 1975; or
(c)Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca)Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or
(d)Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e)subsection 27(2) of the Racial Discrimination Act 1975; or
(f)section 94 of the Sex Discrimination Act 1984.
It was submitted that the applicant’s claim did not, in reality, extend beyond the matters raised in the letter of 12 March 2007 which, far from alleging discriminatory conduct, complained that the Department had breached the 2003 agreement. It was submitted that this was so notwithstanding that boxes had been ticked on the complaint form lodged with the Commission which suggested that a discrimination claim was being made. The Department submitted that that document was, to all intents and purposes, dissociated from the real claim which was to be found in the letter of 12 March 2007. The Department submitted that the applicant’s mother had simply ticked a box in the standard form but, in reality, relied upon the accompanying letter which did not raise a claim of discrimination.
Section 46P(1) of the HREOC Act provides:
A written complaint may be lodged with the Commission, alleging unlawful discrimination.
Section 46PO of the HREOC Act provides for the commencement of proceedings by making application to this Court or to the Federal Court if a complaint to the Commission is terminated. Section 46PO(3) provides:
The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b)must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
It is apparent that these two sections dealing with complaints of discriminatory conduct deal with the meanings of “complaint” and “unlawful discrimination” in the same way. Consequently, cases considering how a complaint should be characterised and identified for the purposes of s.46PO(3) have relevance to the understanding of those terms in s.46P(1). As Lehane J said in Travers v State of New South Wales [2000] FCA 1565 at [8]:
… the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries … It may well be that the ambit of a complaint is to be ascertained, for the purpose of s.46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination.
In Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721, Driver FM said at [10]:
The task for the Court is to determine what are the parameters of the complaint that has been terminated. The documents on which that determination may properly be based include, but are not necessarily limited to, the notice of termination and accompanying letter from the President, and the terms of the document or documents setting out the complaint or complaints to HREOC.
A predecessor of s.46P, s.50 of the Sex Discrimination Act 1984 as it stood before amendments made by the Human Rights Legislation Amendment Act (No. 1)1999, was considered in Simplot Australia Pty Ltd v Human Rights & Equal Opportunity Commission (1996) 69 FCR 90 and Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179. In both of those cases it was stated that an initiating complaint of discrimination was not to be treated as a formal document or a pleading although it must at least adequately identify a person whose conduct is said to be unlawful and the nature of a complaint attracting the jurisdiction of the Commission.
Although the letter of 12 March 2007 does not, in terms, raise s.22 of the Disability Discrimination Act, which deals with discrimination in education, or s.32, which deals with contravention of disability standards, the Commission nevertheless approached the complaint as if it had been made, in part, with those sections in mind. The fact that a lay person making a complaint to the Commission does not identify those sections of the relevant Act upon which the success of his or her complaint depends does not mean that the Commission is not empowered to consider the complaint.
As Branson J said in Commonwealth v Sex Discrimination Commissioner at 187, applying the reasoning of Merkel J in the Simplot case, the jurisdiction of the Commission to enquire into an alleged unlawful act in respect of which a complaint is made under s.46P is not subject to a pre-condition that the complaint relates to an act which is in fact unlawful. Merkel J said in the Simplot case:
The section merely provides for a complaint in writing which alleges that a person has done an act that unlawful under Pt II of the Act. If such an allegation is made in the complaint it will comply with the section. (at 93)
In this case it is apparent that the complaint sufficiently identified the Department as its object and the Department’s conduct in terminating the applicant’s enrolment as a student of the DESU as its subject, potentially giving rise to a proper complaint under the Disability Discrimination Act. In light of these considerations I conclude that the respondent’s submission that the applicant’s complaint to the Commission did not amount to a complaint, as that term is understood in the context of the HREOC Act, is not made out.
Section 46PO(3)
For the reasons given in relation to the first issue raised by the respondent, I do not find that the application made to this Court fails to meet the criteria of s.46PO(3) on the basis that there was no underlying claim of discrimination made to the Commission.
However, the respondent’s submissions are not limited to this point. The Department also submits that the grounds of the application to this Court raise issues which were not raised in the complaint made to the Commission. That this is not permissible is made clear by the terms of s.46PO(3) as well as by the cases which have considered it such as Jandruwanda v Regency Park College of TAFE [2003] FCA 1455, Yee v North Coast Area Health Service [2007] FMCA 1788 and Hollingdale v Northern Rivers Area Health Service.
Grounds pleaded in paragraph 1 of the application
Paragraphs 1(i), (iii) and (iv) of the application, as referred to above at [10], do not raise issues which were the subject of the complaint made to the Commission, nor do they arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint. The complaint to the Commission related to the termination of the DESU enrolment. It did not relate to the manner in which DESU services had been provided, whether the applicant was to be enrolled in home schooling or whether he should be provided with resources such as a computer, printer and software. As a result, the Court does not have jurisdiction to deal with those complaints in these proceedings.
As to ground 1(ii), the termination of the applicant’s enrolment with DESU was the essence of the complaint made to the Commission. Although the complaint to the Commission was couched in terms of a breach of an agreement which had been reached in 2003, as already stated, the way the complaint is expressed should not be construed unduly strictly. The essence of the applicant’s complaint was that the DESU enrolment was terminated.
Grounds pleaded in paragraph 2 of the application
None of the matters raised in the second paragraph of the application were included in the complaint made to the Commission and thus in these proceedings the Court has no jurisdiction in relation to them. The allegation that the applicant was required to complete modules of work relates to the implementation of the DESU enrolment, not its termination. The alleged requirements on the applicant to attend a particular public school or to enrol in home schooling may be factually consequential upon the termination of the DESU enrolment but do not arise out of it.
It was put on behalf of the applicant that the proper characterisation of the complaint was not that the applicant’s DESU enrolment had been terminated but that he is expected to go to a particular school or undertake home schooling. While that might be the claim which the applicant wishes to make now, that was not the complaint made to the Commission. That complaint was limited to the termination of the program, expressed in terms of the Department breaching the 2003 agreement.
Proceedings duplicitous – s.13(4) Disability Discrimination Act
As already noted, the applicant complained to the ADB in relation to the termination of the DESU enrolment. The ADB’s letter of
13 February 2007addressed to the applicant’s mother summarised the complaint made to it and expressed its conclusion as set out above at [5] and [6]. It appears from the ADB’s letter of 13 February 2007 to the applicant’s mother that she had discussed with the ADB its decision not to accept her complaint for investigation. In that letter the ADB expressed its formal decision in the following terms:
Section 89B(2) of the Act states that the President may decline a complaint in certain instances.
I wish to advise that, pursuant to section 89B(2)(a) of the Act, I have decided not to accept your complaint for investigation. The reason for this decision is that no part of the conduct complained of could amount to a contravention of a provision of the Act.
In its letter of 14 February 2007, apparently responding to contact made by the applicant’s mother, the ADB said:
If you maintain your view that the Department’s conduct breaches anti-discrimination law, then you [may] wish to make enquire [sic] of the federal Human Rights and Equal Opportunity Commission as to the possibility of your lodging a complaint under the Disability Discrimination Act 1992.
I infer that this suggestion led to the complaint subsequently made to the Commission. It is therefore unsurprising that the complaint made to the Commission was, in essence, the same as a complaint which had been made to the ADB. On both occasions the applicant complained that the Department’s decision to discontinue his enrolment in the DESU amounted to unlawful discrimination.
Section 13(4) of the Disability Discrimination Act provides:
(4) If:
(a)a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act; and
(b)a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act;
the person is not entitled to make a complaint or institute a proceeding under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.
Section 22 of the Disability Discrimination Act provides:
(1)It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:
(a)by refusing or failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
(2A)It is unlawful for an education provider to discriminate against a person on the ground of the person’s disability or a disability of any of the person’s associates:
(a)by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
(b)by accrediting curricula or training courses having such a content.
(3)This section does not render it unlawful to discriminate against a person on the ground of the person’s disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability.
(4)This section does not make it unlawful for an education provider to discriminate against a person or student as described in subsection (1), (2) or (2A) on the ground of the disability of the person or student or a disability of any associate of the person or student if avoidance of that discrimination would impose an unjustifiable hardship on the education provider concerned.
Section 49L of the NSW Anti-Discrimination Act provides:
(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:
(a)by refusing or failing to accept his or her application for admission as a student, or
(b)in the terms on which it is prepared to admit him or her as a student.
(2)It is unlawful for an educational authority to discriminate against a student on the ground of disability:
(a)by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or
(b) by expelling him or her, or
(c) by subjecting him or her to any other detriment.
(3) Nothing in this section applies to or in respect of:
(a) a private educational authority, or
(b)a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.
(4)Nothing in subsection (1)(a) or (2)(b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.
(5)Nothing in subsection (2)(a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.
A comparison of s.22 of the Disability Discrimination Act with s.49L of the NSW Anti-Discrimination Act demonstrates that, relevantly, they both deal with discrimination in education in similar if not identical terms. It is also apparent that, rather than initially make application to the ADB, the applicant could have instead lodged his complaint with the Commission: s.46P HREOC Act. The choice to make his complaint to the ADB having been made, the applicant was not entitled to bring the claim afresh to the Commission. Moreover, s.13(4) makes it clear in such circumstances that the applicant is also not entitled to institute these proceedings alleging that the termination of his enrolment in the DESU was unlawful for being contrary to the Disability Discrimination Act.
The applicant submits that s.13(4) does not apply in this case because his complaint to the ADB was declined on the basis that there was no contravention of the state Act. However, s.13(4) is not dependent on a duplicitous claim having been well-made in the first place; it speaks simply of an applicant being:
… entitled to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 alleging that the act or omission is unlawful under the provision of Part 2 of this Act.
As noted above at [41], the applicant was entitled to have made his complaint to the Commission under the Disability Discrimination Act in preference to making a complaint to the ADB under the state Act but did not do so. The fact that the ADB considered that the complaint to it was not well-made does not alter the fact that it met the criteria laid down by s.46P and thus s.13(4) of the Disability Discrimination Act as well.
Reference was made to the decision of Hill J in Barghouthi v Transfield Pty Ltd (2002) 122 FCR 19 where his Honour held that s.13(4) of the Disability Discrimination Act does not prevent a second complaint if the final complaint fails because the first chosen forum lacked jurisdiction. In that case the applicant had filed an application for relief in the Industrial Relations Commission of NSW which was dismissed because the Commission found that it did not have jurisdiction to determine the matter. The applicant then complained to the Commission. After the complaint was terminated the applicant brought proceedings in this Court which subsequently went on appeal to the Federal Court. One of the issues in the Federal Court was whether the applicant was not entitled to bring the proceedings, or the complaint to the Commission, by reason of the earlier complaint to the Industrial Relations Commission of NSW. In that regard, Hill J held that where there is no jurisdiction it cannot be said that a complaint has been made under the relevant state Act. His Honour concluded at 24 [14] that it would be absurd and could not be accepted that where one forum had no jurisdiction that the second forum ipso facto must be denied jurisdiction.
In this case the ADB did not lack jurisdiction, it simply concluded that the complaint raised no conduct which could amount to contravention of the state Act.
That being so, the applicant was not entitled to institute these proceedings and they must be dismissed.
Conclusion
In these proceedings the applicant has sought relief in respect of various particularised instances of disability discrimination allegedly committed by the Department. Of these allegations, only one was part of the complaint made to the Commission and was the subject of the notice of termination dated 21 February 2008. Consequently, under s.46PO(3) the Court has no jurisdiction to entertain those other allegations.
The one allegation which did form part of the complaint to the Commission met the criteria for a complaint set out in s.46P of the HREOC Act. However, that same compliant had been made not long before to the ADB with the result that s.13(4) of the Disability Discrimination Act disentitles the applicant to bring these proceedings. That is to say, by virtue of s.13(4) the applicant has no cause of action in this Court in respect of the disability discrimination complained of to the Commission.
As a consequence of these conclusions, I find that the proceedings have no reasonable prospects of success. They will be dismissed pursuant to r.13.10 of the Rules.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 July 2008
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