State of New South Wales (Department of Education and Training) v Chinchen (EOD)

[2006] NSWADTAP 63

Appeal Panel - Internal

CITATION:	State of New South Wales (Department of Education and Training) v Chinchen (EOD) [2006] NSWADTAP 63
PARTIES:	APPELLANT State of New South Wales (Department of Education and Training) RESPONDENT Christine Chinchen and Noel Chinchen on behalf of Rhys Chinchen
FILE NUMBER:	069040
HEARING DATES:	20/11/06
SUBMISSIONS CLOSED:	11/20/2006
EXTEMPORE DECISION DATE:	11/20/2006
DATE OF DECISION:	12/01/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - (Deputy President); Bolt M - Non Judicial Member
CATCHWORDS:
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	021065
DATE OF DECISION UNDER APPEAL:	06/15/2006
LEGISLATION CITED:	Anti-Discrimination Act 1977
REPRESENTATION:	APPELLANT T Anderson, counsel RESPONDENT K Eastman, counsel
ORDERS:	1. The Tribunal’s decision is set aside; 2. In substitution for remitting the matter to the Tribunal at first instance, the complaint is dismissed pursuant to section 107(1)(a) of the Anti-Discrimination Act 1977; 3. Each party pay their own costs.

REASONS FOR DECISION

1 This appeal was not argued before the Appeal Panel. On the morning of the hearing the parties, who were each represented by experienced counsel, presented to the Appeal Panel orders that they requested the Appeal Panel to make by consent.

2 Section 86 of the Administrative Decisions Tribunal Act 1997 allows the Tribunal, which the includes the Appeal Panel, to make orders to give effect to any agreed settlement, on certain conditions. Section 86 provides that:

(1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:
(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement, and

(c) the Tribunal is satisfied that the agreed settlement is in the best interests of the person whose interests are considered by the Tribunal to be paramount.

(2) The Tribunal may dismiss the application that is the subject of the proceedings if it is not satisfied that:
(a) it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement, or

(b) the agreed settlement is in the best interests of the person whose interests it considers paramount.

(3) Nothing in this section affects:
(a) the power of the Tribunal, a member or an assessor to make a determination under section 74 to which the parties to the proceedings concerned agree, or

(b) the power of the Tribunal to make any order under section 105 giving effect to any agreement or arrangement arising out of a mediation session under Part 4.

3 The terms of the settlement were reduced to writing, signed on behalf of the parties and lodged with the Tribunal. We are satisfied that we would have the power to make a decision in terms that are consistent with the terms of the agreed settlement. Given that the parties are represented by experienced counsel, we are also satisfied that the agreed settlement is in the best interests of both parties.

4 Having regard to that agreement, we make the following orders by consent:

1. The Tribunal’s decision is set aside.

2. In substitution for remitting the matter to the Tribunal at first instance, the complaint is dismissed pursuant to section 107(1)(a) of the Anti-Discrimination Act 1977.

3. Each party pay their own costs.

5 We note that the parties have reached agreement that the appeal should be upheld on the following grounds:
1. with respect to Allegation One, having found that “the school’s failure to seek assistance from Ms Ravens [the School Counsellor] remains a mystery”, the Tribunal erred in then finding that Rhys Chinchen’s disability or a characteristic that appertained generally to a person with motor dyspraxia was a reason for the school’s failure to seek assistance from the school counsellor for the purpose of section 49B(1)(a) of the Anti-Discrimination Act;

2. with respect to Allegations One, Three and Ten the Tribunal failed to determine the proper circumstances in which to compare the treatment accorded to Rhys and the treatment accorded to a hypothetical student without motor dyspraxia and thereby failed to determine that Rhys Chinchen was treated less favourably than another student without motor dyspraxia in the same or similar circumstances for the purpose of section 49B(1)(a) of the Act;

3. with respect to Allegation Nine, the reasons given by the Tribunal are inadequate.

6 The Appeal Panel notes that, having regard to the agreement by the parties and these consent orders, it is unnecessary for us to consider the other grounds of appeal set out in the Amended Notice of Appeal.