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Tah v A School

Tah v A School

Case [2024] QCAT 434 4 October 2024

Direct Discrimination

Indirect Discrimination

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Human Rights Law

Civil Litigation & Procedure

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TAH v A School [2024] QCAT 434

PARTIES:

TAH

(applicant)

v

A SCHOOL

(respondent)

APPLICATION NO/S:

ADL031-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

4 October 2024

HEARING DATE:

1 May 2024

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. The respondent did not discriminate against the applicant, either directly or indirectly, by the publication and proposed implementation of a uniform policy requiring female students to wear a skirt on formal school occasions. The complaint is dismissed.

2. The publication of any information that may enable the applicant to be identified is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where the complainant as a female student was required to wear a skirt to formal school occasions whilst male students could wear the usual uniform – whether this was less favourable treatment within the definition of direct discrimination

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the complainant as a female student was required to wear a skirt to formal school occasions whilst male students could wear the usual uniform – whether capable of founding an indirect discrimination complaint

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PERSONS UNDER LEGAL INCAPACITY – JURISDICTION AND POWERS – where a complaint was carried on in the tribunal after referral but the complainant did not have legal capacity – whether a litigation guardian could be appointed by the tribunal

Anti-Discrimination Act 1991 (Qld), s 10, s 11, s 134
Human Rights Act 2019 (Qld), s 5, s 13, s 15, s 31, s 48

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 43

BA, DC, FE v State of Queensland [2022] QCAT 332

Davis v Metro North Hospital and Health Service [2019] QCAT 18
Drane v Taylor (No 2) [2022] QCATA 157
Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 178
Hall v Queensland Building and Construction Commission [2023] QCATA 108
Harrison & Anor v Meehan [2017] QCA 315
Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218

Terera & Bohlar v Clifford [2016] QCATA 25,[19]

APPEARANCES & REPRESENTATION:

Applicant:

Miles Heffernan, of Supportah Australia Pty Ltd (industrial advocate)

Respondent:

A R Hellewell (counsel) instructed by Neumann & Turnour Lawyers.

REASONS FOR DECISION

This complaint concerns the required dress of a female student on formal school occasions.
The complaint was made to the Queensland Human Rights Commission and referred by the Commissioner to the tribunal.
The complaint was that the school’s uniform policy required female students in years 7 to 12 to wear a skirt to formal school occasions. That would include school outings or excursions, school ceremonies and events, class photographs, awards nights and external events. Male students could wear shorts or trousers which was their usual school uniform. In the complaint, the policy was said to amount to both direct and…

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.

Continue reading Tah v A School

Details

AGLC: Tah v A School [2024] QCAT 434
Case: [2024] QCAT 434
Decision Date: 4 October 2024

CaseChat Overview and Summary

The case of Tah v A School involved a dispute between Tah, a female student, and A School regarding the school's policy that required female students to wear skirts to formal school occasions, while male students were permitted to wear the usual school uniform. Tah argued that this requirement constituted direct and indirect discrimination under the Anti-Discrimination Act 1991 (Qld). The matter was brought before the Queensland Civil and Administrative Tribunal (QCAT), which subsequently referred the complaint to the District Court of Queensland for determination.

The central legal issues before the court were whether the school's requirement for female students to wear skirts to formal occasions constituted direct discrimination and whether it could be considered indirect discrimination. Additionally, the court had to consider whether a litigation guardian could be appointed for Tah, as she was a person under legal incapacity, and thus unable to represent herself in court.

In its judgment, the court found that the school's policy did not constitute direct discrimination, as the requirement to wear a skirt was not based on gender but rather on the formality of the occasion. The court reasoned that the policy applied equally to all students regardless of gender, and the requirement to wear a skirt was not less favourable treatment when considering the context of formal events. As for indirect discrimination, the court held that the policy did not place or place the complainant at a particular disadvantage compared to others, and therefore did not amount to indirect discrimination. The court also found that while the complainant lacked legal capacity, a litigation guardian could be appointed to represent her interests in the proceedings.

The court dismissed the complaint, ruling that the school had not engaged in discriminatory practices. Furthermore, the court ordered that any information that could identify the complainant was not to be published, in accordance with section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

Orders

Orders of the court

1. The respondent did not discriminate against the applicant, either directly or indirectly, by the publication and proposed implementation of a uniform policy requiring female students to wear a skirt on formal school occasions. The complaint is dismissed.

2. The publication of any information that may enable the applicant to be identified is prohibited under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Tah v A School [2024] QCAT 434

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 12 of 12 shown

Hall v Queensland Building and Construction Commission
[2023] QCATA 108 Para 5

…in Drane v Taylor (No 2) [2022] QCATA 157, [8] and [11], Judicial Member D J McGill SC and Hall v Queensland Building and Construction Commission [2023] QCATA 108 Member Fitzpatrick. See also Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 178, Member Lumb [24], following Drane .…
Gold Coast Tree Houses Pty Ltd v Lander No 2
[2022] QCATA 178 Para 5

…Hall v Queensland Building and Construction Commission [2023] QCATA 108 Member Fitzpatrick. See also Gold Coast Tree Houses Pty Ltd v Lander No 2 [2022] QCATA 178, Member Lumb [24], following Drane .…
Drane v Taylor (No 2)
[2022] QCATA 157 Para 5

…esented under section 43 has the same effect as the appointment of a litigation guardian. [7]Contrasting views are given in Drane v Taylor (No 2) [2022] QCATA 157, [8] and [11], Judicial Member D J McGill SC and Hall v Queensland Building and Construction Commission [2023] QCATA 108 Member Fitzpatrick. See also Gol…
BA, DC, Fe v State of Queensland
[2022] QCAT 332 Para 6

…A similar issue arose in BA, DC, FE v State of Queensland [2022] QCAT 332 when Member Fitzpatrick decided that in the tribunal it was not essential for a person without legal capacity to have a litigation guardian to pursue an application, provided they were able to give instructions to their legal representative.…
Harrison v Meehan
[2017] QCA 315 Para 8

…needed clarification, and the witness called by the tribunal was the best person to do so. [15]Section 204 of the ADA. [16] Harrison & Anor v Meehan [2017] QCA 315, [15], Terera & Bohlar v Clifford [2016] QCATA 25, [19].…
Terera and Bohlar v Clifford
[2016] QCATA 25 Para 8

…the tribunal was the best person to do so. [15]Section 204 of the ADA. [16] Harrison & Anor v Meehan [2017] QCA 315, [15], Terera & Bohlar v Clifford [2016] QCATA 25, [19].…
Salmond v S & S Accounting Services Pty Ltd
[2012] QCATA 218 Para 6

…om the tribunal’s statutory provisions examined by the then President of the tribunal Justice Wilson in Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218.[14] [14][10].…
Waters v Public Transport Corporation
[1992] HCA 9 Para 2

…The distinction between direct and indirect discrimination was described in Waters v Public Transport Corporation (1991) 173 CLR 349:[33] [21] A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Br…
Waters v Public Transport Corporation
[1991] HCA 49 Para 2

…The distinction between direct and indirect discrimination was described in Waters v Public Transport Corporation (1991) 173 CLR 349:[33] [21] A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct dis…
A stark example was Davis v Metro North Hospital and Health Service
[2019] QCAT 18 Para 8

…ctor here is that the complainant was represented by a firm experienced in court or tribunal work. In Davis v Metro North Hospital and Health Service [2019] QCAT 18, the tribunal did call a witness and this turned the case in the complainant's favour. But in that case there was evidence before the tribunal which…
[1989] AC 1155
[1989] AC 1155 Para 3

…are held on reasonable grounds, then they can be taken into account.[18] [18] R v Birmingham City Council ex parte Equal Opportunities Commission [1989] AC 1155 (English House of Lords) was an example where female students were deprived of having a choice of schools. It was not necessary to show that the schools…
Supreme Court of the United States in Griggs v Duke Power Co
(1971) 401 US 424 Para 2

…e United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that…

Legislation cited in this decision · 4

Anti-Discrimination Act 1991 (Qld)
10 2 mentions (from Para 9)
Human Rights Act 2019 (Qld)
5 2 mentions (from Para 7)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
28 2 mentions (from Para 8)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 4)