Tyler v Kesser Torah College
[2006] FMCA 1
•20 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TYLER v KESSER TORAH COLLEGE | [2006] FMCA 1 |
| HUMAN RIGHTS – Disability discrimination in education – alleged suspension and expulsion of disabled child from primary school – issue of fact whether the child had been suspended and expelled by the school or withdrawn by his parents – whether a child can be constructively expelled considered – issue of fact concerning the reason for the alleged suspension or expulsion of the child – issues of behaviour. PRACTICE AND PROCEDURE – The power of the Court to make orders requiring an educational institution to re-admit an excluded child considered. |
| Disability Discrimination Act 1992 (Cth), ss.5, 22 Federal Magistrates Act 1999 (Cth), s.15 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 |
| Applicant: | JOSEPH TYLER by his litigation guardian |
| Respondent: | KESSER TORAH COLLEGE |
| File Number: | SYG3752 of 2004 |
| Judgment of: | Driver FM |
| Hearing dates: | 15-19 November, 21 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2006 |
REPRESENTATION
| Litigation Guardian for the Applicant: | Mrs R Tyler |
| Counsel for the Respondent: | Ms K Eastman |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3752 of 2004
| JOSEPH TYLER |
Applicant
And
| KESSER TORAH COLLEGE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) asserting direct disability discrimination contrary to ss.5 and 22 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). The only applicant is Rosana Tyler, as litigation guardian for Joseph Tyler (a child). The only respondent is the Kesser Torah College (“the College”), formerly known as the Yeshiva College. Mrs Tyler asserts that the College discriminated against Joseph on account of his disability (Down’s Syndrome[1]) in allegedly suspending him from the school on 4 August 2004 and allegedly expelling him the following day. Mrs Tyler seeks a declaration of unlawful discrimination, and as alternative orders, $1,000 compensation or an order that Joseph be reinstated at the College.
[1] also known as Down Syndrome
The College accepts that Joseph suffers from a disability but denies expelling him. The College states that Mr and Mrs Tyler were informed on 4 August 2004 that Joseph must remain away from the College until a meeting could be held between the College and Mr and Mrs Tyler. The College denies subjecting Joseph to any other detriment on account of his disability or treating him less favourably than it would have treated another student without his disability in the same or similar circumstances. The College asserts that Joseph was withdrawn (along with his brothers and sister) as a result of a decision made by Mr and Mrs Tyler.
The legislation
Section 5 of the DDA states:
(1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Section 22 of the DDA states:
(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 46PO of the HREOC Act states:
(1) If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3) 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.
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
The evidence
Mrs Tyler relies upon her own affidavits filed on 23 December 2004 and 28 July 2005 and her husband Edward Tyler’s affidavit filed on 23 December 2004. She also tendered the following documents in support of her claims which I accepted as exhibits:
A1 Joseph Tyler’s homework from 14 November 2005;
A2 Jewish News article from 26 August 2005;
A3 Kesser Torah College newsletter – October 2005;
A4 bundle of documents;
A5 e-mail to Down Syndrome Association;
A6 bundle of e-mails;
A7 bundle of school reports and merit tokens;
A8 Jewish News interview – 26 March 1999;
A9 letter to Yates from Markovics;
A11 minutes from AIS re phone conversation;
A12 Mrs Jankelow’s file note of conversation with AIS;
A13 Debbie Morgenstern’s intended report;
A14 semester 1, 2004 report.
The College relies upon the following affidavits filed on 3 June 2005:
·the affidavit of Linda Burmeister;
·the affidavit of Rabbi Yehuda Speilman;
·the affidavit of Rebecca Gail Elizabeth Stewart;
·the affidavit of William Raymond Conway;
·the affidavit of Aviva Notelovitz;
·the affidavit of Lynne Simone Goldschmidt; and
·the affidavit of Jacqueline Merle Jankelow.
All of the College’s deponents were cross-examined with the exception of Mrs Goldschmidt (who was unavailable). I accepted her affidavit with certain deletions and subject to reduced weight. The College tendered the following documents which I accepted as exhibits:
R1 meeting minute;
R2 screening report;
R3 DET Access request form;
R4 end of year report – 2004;
R5 note by Emma Rajab;
R6 bundle of e-mails;
R7 handwritten file note - Mrs Tyler and Rabbi Spielman;
R8 “Who’s Going to Teach my Child?”
R9 e-mails between Mrs Tyler and Dr Zeilic;
R10 e-mail to Robyn Yates
R11 correspondence to Board of Studies;
R12 bundle of homework documents;
Rosana Tyler
In her first affidavit, Mrs Tyler deposes as to Joseph’s educational history and the facts giving rise to her complaint of discrimination. She deposes that Joseph was suspended from school on Wednesday, 4 August 2004 by Rabbi Spielman and that, during a lengthy conversation the following day, it was made clear by Rabbi Spielman that he was concerned that the College was not meeting Joseph’s needs. She deposes that she then began making arrangements for alternative schooling for Joseph and attended a meeting at the College on Tuesday, 10 August. She deposes that she did could not obtain satisfactory details of the incident or incidents leading to Joseph’s suspension although she was informed of incidents of Joseph running away from the classroom and allegedly throwing an object from a balcony which hit a teacher. She deposes as to the effect of the alleged discriminatory conduct upon Joseph and earlier conduct by the College in relation to Joseph and his needs.
In her second affidavit Mrs Tyler responds to the affidavits of Rabbi Spielman, Rebecca Stewart, Aviva Notelovitz, William Conway, Lynne Goldschmidt and Jacqueline Jankelow.
In cross-examination Mrs Tyler stated that Joseph is now aged 10 and attending Athelstane Public School, a public school in the New South Wales education system. Joseph attends a composite class for children with special needs. Joseph is one of nine students in his class and a programme has been developed for him.
Mrs Tyler stated that Joseph’s last day at Kesser Torah College was 4 August 2004 and her husband subsequently enrolled him at Tempe Public School in the general programme. She stated that it was her and her husband’s intention that Joseph would move from Tempe Public School into a school that would be better able to meet his needs as soon as possible. They took the first offer of alternative schooling that was made to them.
Ms Eastman showed Mrs Tyler assessments made by the Athlestane Public School about Joseph’s capacities (or incapacities). Mrs Tyler thought that Joseph’s disabilities were exaggerated for the purpose of obtaining additional funding. She said that Joseph has only a moderate disability. Mrs Tyler admitted that she and her husband did not enquire about alternative schooling for Joseph at private Jewish schools as they already knew that a place was not available at the time Joseph ceased at the College.
Mrs Tyler was asked about her conversation with her husband on the evening of 4 August 2004. She said that her husband had told her he had received three calls from Mrs Burmeister on that day. Mr Tyler had said that the College had asked for a meeting and that he had suggested 13 August. The College had requested a sooner meeting and Mrs Burmeister had told Mr Tyler that Joseph would not be permitted to return to school until after the meeting. Mrs Tyler said that she had this conversation with her husband between 6.00pm and 6.30pm that day and that they talked about the issue extensively later that night. Mrs Tyler said that her husband had not been informed of the reason for Joseph’s exclusion and that he had left a message for Rabbi Spielman to call but he had not called that day. Mrs Tyler said that she and her husband had assumed something terrible had happened and that Joseph’s disability was the reason for his exclusion. She was aware that the College had a policy requiring a meeting with parents if a student’s behaviour was inappropriate.
Mrs Tyler denied deciding to remove Joseph and his brother Daniel from the College on 4 August 2004. She was shown an e-mail[2] written on that day to the Association of Independent Schools (“the AIS”) and recalled it. She stated that at the time she wrote that e-mail she believed that Joseph had been excluded. She agreed that she had not spoken to anyone at the College before writing her e-mail at 6.48pm. She agreed that in the e-mail she had requested the AIS to cease providing funding for Joseph and said that this was because he had been permanently excluded.
[2] exhibit R6
Ms Eastman asked Mrs Tyler why all of the Tyler children had been withdrawn from the College. She responded that it was “one out, all out”. She suggested the College was “playing games”.
Mrs Tyler confirmed that she spoke to Rabbi Spielman for about 50-60 minutes on 5 August 2004 commencing at about 12.00pm. Mrs Tyler said that she did not tell Rabbi Spielman of her e-mail to the AIS the previous evening. Initially she said that she assumed he knew of it because it had been sent to the school. Later she said that exhibit R6 was a collation of separate e-mails and that it did not show that the AIS e-mail had been forwarded to the school. Mrs Tyler had sent an e-mail to the College on the evening of 4 August 2004 expressing her outrage at the treatment of Joseph. Mrs Tyler also confirmed that she had e‑mailed another parent on the evening of 4 August and that she had not referred to Joseph being “expelled” in that e-mail. Mrs Tyler said that as a result of her conversation with Rabbi Spielman it was clear to her that Joseph could not return to the College. She denied that Rabbi Spielman was merely stressing the need for a meeting to discuss problems concerning Joseph. She said that Rabbi Spielman repeatedly suggested that Joseph should go to a different school.
Mrs Tyler said that although she attended a meeting on 10 August 2004 at the school, she regarded this as an “exit meeting”. She confirmed that at the meeting Mrs Jankelow had stated that Joseph had thrown an object from the balcony on to the kindergarten area of the College which had hit a teacher. She stated that people at the College had “ganged up” upon her and her husband and that the College “only gave us bad news”.
Ms Eastman asked Mrs Tyler about her request for an order compelling the College to take Joseph back. Mrs Tyler stated that Joseph did not really need a special class and would progress better if he was in the general stream at the College. She acknowledged that the College could not provide the special education provided at Athelstane but stated that the special class at Athelstane is comprised only of disabled children. Mrs Tyler stated that Joseph would be better off in a general class with children who are not disabled.
Ms Eastman showed Mrs Tyler a further e-mail she wrote on 5 August 2004 to Mrs Susie Zelic[3]. She was asked about references to her other son, Daniel. She said that in 2000 Daniel had had problems at the College because of his behaviour. Daniel was violent. Mrs Tyler had obtained assistance from the New South Wales Department of Community Services. She said that this had been productive, although she had nearly suffered a nervous breakdown in resolving the issue with the College. She admitted that several times in 2000 she had threatened to remove Daniel from the College. She had not then done so.
[3] exhibit R9
Mrs Tyler gave evidence that she had concerns about the attitude of staff at the College towards Joseph. However, she denied that she simply used the meeting at the College on 10 August 2004 to validate a prior decision to remove her children. She admitted that there had been incidents where Joseph had soiled his clothes and required changing and this had been discussed with the College. She stated that she had provided a change of clothes every day for Joseph in a plastic bag. Mrs Tyler was also aware that Joseph had at times left the classroom and gone to other parts of the school and that he had also, at times, had to be coaxed back to class from the playground. She said that these problems had reduced during 2004.
Edward Tyler
Mr Tyler deposes that he received a telephone call at work from Mrs Burmeister on 4 August 2004. He deposes that Mrs Burmeister said that there was nothing wrong with any of the children but that the College wanted a meeting with him and his wife in relation to Joseph. He suggested that the meeting take place on Friday, 13 August. Mrs Burmeister said that she would check and get back to him. He deposes that Mrs Burmeister telephoned later and requested an earlier meeting. He had said that he doubted an earlier meeting was possible but asked what time was available the following week.
Mr Tyler deposes as to a third conversation that day with Mrs Burmeister where Mrs Burmeister reported that the College said that 13 August was too long to wait and asked for a meeting that week. Mrs Burmeister had then said that Joseph was not to return to school until there had been a meeting. He had asked what the problem was and Mrs Burmeister said that she did not know but that it was serious. Mr Tyler deposes that he asked to speak to Rabbi Spielman but that Mrs Burmeister said that he was not available. He left a message for Rabbi Spielman to call him.
Mr Tyler also deposes as to his previous dealings with the school.
Under cross-examination Mr Tyler confirmed that he had three conversations with Mrs Burmeister on 4 August 2004. He thought that they were in the afternoon. He thought that the conversations occurred within a relatively short time, about half an hour or so. He could not recall whether Mrs Burmeister had referred to Joseph’s behaviour. He said that he was unwilling to agree to an earlier meeting than he had offered until he had checked with his wife. He recalled Mrs Burmeister saying in the third conversation that the matter was urgent. He then said that he could not agree to an earlier meeting than he had offered because of pressure at work.
Mr Tyler said that there had been earlier problems concerning Joseph’s brother Daniel who had also been excluded from school on short notice at times. He was concerned about the College’s attitude on this occasion but did not go into these concerns with Mrs Burmeister because she was “only the messenger”. He agreed that there was no reference to Joseph’s disability in these telephone calls.
Mr Tyler said that he spoke to his wife when he returned home from work, possibly between 5.30pm and 6.00pm. He recited to his wife the three telephone calls he had had with Mrs Burmeister and told her that Joseph was not to return to school until the meeting had occurred with the College. Mr Tyler did not say to his wife that Joseph had been expelled. Mr Tyler agreed that he understood the matter was urgent and that was why he had left a message for Rabbi Spielman to telephone him. He agreed that as at 4 August 2004 he felt that he was working with the College to deal with the issue. He agreed that after that date he left it to his wife to deal with the College because he had commitments that he could not break. He could not recall the specifics of what his wife reported to him of her conversation with Rabbi Spielman on 5 August. He recalled that his wife thought Rabbi Spielman had been negative about Joseph and had suggested that Joseph go to a special school. His wife had indicated to him that the College had presented a “fait accompli”. He admitted that his wife had not reported to him that Joseph was “no longer welcome” at the College.
Mr Tyler admitted that Joseph had occasionally soiled his clothes and that spare clothes had been provided in order to deal with this. Joseph’s siblings had also assisted in cleaning him after Joseph had soiled himself.
Mr Tyler resisted suggestions that he had had very little contact with the College in 2004. He was aware that Mrs Goldschmidt had been employed as a teacher’s aide to work with Joseph in 2004. He had spoken to her soon after her commencement. Mr Tyler said that he had attended frequent meetings with the school to discuss his children, on average about once a week. He said that Mrs Tyler had probably been more involved in issues concerning Daniel in 2004 and that not so many issues had needed to be dealt with concerning Joseph.
Linda Burmeister
Mrs Burmeister was, at the relevant time, the receptionist-secretary at the College. She provided secretarial support to Rabbi Spielman, the principal. She also assisted teachers and co-ordinators in a secretarial capacity. Further, she liaised with teachers regarding students leaving classrooms without permission. Mrs Burmeister deposes as to her knowledge of Joseph Tyler leaving class without permission and soiling himself.
Mrs Burmeister also deposes as to the events of 4 August 2004. She deposes that on the morning of that day, Mrs Jankelow asked her to arrange a meeting with Mr and Mrs Tyler. She attempted to contact Mr Tyler but was not successful. Later on that day Rabbi Spielman asked her to call Mr and Mrs Tyler to arrange a meeting about Joseph’s behaviour. She tried to call Mrs Tyler but did not receive an answer. She then successfully contacted Mr Tyler. She explained that the purpose of the call was to arrange a meeting to discuss Joseph’s behaviour. She deposes that Mr Tyler advised that he would be available on Friday, 13 August 2004 when he had a day off. She mentioned that the College would also like Mrs Tyler to be involved and Mr Tyler said that he would discuss it with her. Mrs Burmeister deposes that at the end of that call she reported back to Rabbi Spielman that Mr Tyler would not be able to attend until Friday, 13 August 2004. She deposes that Rabbi Spielman replied:
This is urgent. They need to make the meeting sooner.
Mrs Burmeister deposes that she then called Mr Tyler back and told him that the meeting was urgent and needed to be earlier. Mr Tyler said he would need to discuss the meeting with his wife to see when she would be available. Mrs Burmeister deposes that she reported this conversation to Rabbi Spielman who then said:
We need to see them immediately. Joseph’s behaviour is too disruptive and he will not take instruction. He won’t be able to come back to school until that meeting has taken place.
Mrs Burmeister deposes that she then made a third successful call to Mr Tyler and told him that the meeting was “really urgent”. She informed Mr Tyler that the College had decided that Joseph was to be excluded from school until the meeting took place. Mr Tyler responded that it was unfair of the College to do so since he and his wife both worked. He also referred to his daughter Alicia undertaking her HSC trials and hence she was unavailable to stay home to look after Joseph. Mr Tyler enquired why the College had not reported the problem earlier. Mrs Burmeister deposes that she said she thought that Joseph’s disruptive behaviour had been reported to him. Mrs Burmeister deposes that Mr Tyler asked that the principal call him back. She responded that Rabbi Spielman had a tight schedule that day and a meeting in the evening. Mr Tyler left his home phone number and his mobile phone number and asked for Rabbi Spielman to call him later at home. Mrs Burmeister undertook to pass this message on to Rabbi Spielman and did so shortly after the end of the phone call.
Under cross-examination Mrs Burmeister said that she could recall making some calls to Mr and Mrs Tyler concerning earlier suspensions of Joseph’s brother Daniel. She accepted also that where she was not calling to advise of a serious problem concerning a child she used words of reassurance to the effect that there was no problem with the children. She accepted that she may have used such words of reassurance at the commencement of her first successful call to Mr Tyler. Mrs Burmeister said that she did not leave any message for Mrs Tyler when she first attempted to contact her as no message service was available on her phone. Mrs Burmeister could not recall precisely what time it was when she made her various telephone calls.
I asked Mrs Burmeister why she thought that Joseph’s disruptive behaviour had already been reported to Mr and Mrs Tyler. She said that this was because it was the usual practice of the College to have teachers or co-ordinators contact a parent to advise of behavioural problems with a child. She assumed that that had occurred in this instance.
Rabbi Yahuda Spielman
Rabbi Spielman is the principal of the College. He deposes as to his personal background and employment at the College as well as the structure of the College, the disciplinary procedure at the College, the curriculum at the College and contact with Mr and Mrs Tyler. He further deposes as to his involvement with Joseph Tyler’s teachers in 2004.
Rabbi Spielman then deposes as to the events of 4 August 2004. He deposes that Mrs Jankelow reported to him on that day that Joseph had thrown something over a balcony and that it had almost hit a child in the pre-school area. Mrs Jankelow reported that Joseph would not accept direction to go back to his classroom. As a result of that report he had asked Mrs Burmeister to schedule a meeting with Mr and Mrs Tyler. When he was told that Mr and Mrs Tyler could not come to a meeting before Friday, 13 August 2004 he told Mrs Burmeister that the matter was urgent and an earlier meeting was required and told her to call back. Rabbi Spielman deposes that Mrs Burmeister then reported back that she had spoken to Mr Tyler again and that he had said:
We are busy people; our diaries are full.
Rabbi Spielman had responded:
Tell Mr Tyler if he can’t come until then, they will have to keep Joseph at home until the meeting occurs.
Rabbi Spielman deposes that his intention was that Joseph would not be allowed to return to the College until his parents attended a meeting to discuss and resolve his behavioural issues.
Rabbi Spielman also deposes as to his conversation with Mrs Tyler on 5 August 2004. He deposes that in that conversation Mrs Tyler complained of not being informed previously about Joseph’s behavioural problems and that he said to Mrs Tyler that she had been difficult to contact and the College felt that the Tylers were not supportive. Mrs Tyler had asserted that she and her husband spoke with Joseph’s teacher Mrs Morgenstern regularly. Rabbi Spielman deposes that he said the following to Mrs Tyler:
I am not sure that the College is meeting Joseph’s needs. Perhaps you should think about sending Joseph to a school like Joseph Varga in Randwick.
Rabbi Spielman denies saying that Joseph would not be allowed to return to the College. He describes Mrs Tyler as being hostile during the conversation. He was concerned as to how Mrs Tyler might treat those who attended the proposed meeting and decided that Joseph’s class teachers (Mrs Morgenstern and Rabbi Aber) should not attend.
Rabbi Spielman deposes as to the meeting which subsequently occurred with Mr and Mrs Tyler, himself, Mrs Jankelow, Mrs Stewart, Mrs Goldschmidt and Mrs Tyler on 10 August 2004. He chaired the meeting and took notes. Mrs Jankelow made a presentation and then Mrs Tyler spoke. Rabbi Spielman deposes that Mrs Tyler indicated that she intended to remove her children from the school. Mrs Tyler stated her opinion that there had been poor communication from the College. Mrs Tyler also sought details about the incident in which Joseph had thrown an item from the balcony. Rabbi Spielman deposes that he said to Mrs Tyler that there was no reason to remove the children from the College but that it might be worthwhile for Joseph to try another school.
Finally, Rabbi Spielman deposes as to the complaint Mrs Tyler made to HREOC and the College’s opposition to the re-enrolment of Joseph at the College. He deposes that the College does not have adequate resources to support Joseph’s education for an extended period. He deposes that, based on the College’s experience with Joseph in 2004, in his opinion it would not be fair to either Joseph or his classmates to attempt to integrate him into a general classroom. In particular, he deposes that Joseph would be far behind his peers in Jewish studies which involve reading and writing Hebrew.
Under cross-examination Rabbi Spielman agreed that during the week of 4 August 2004 Joseph’s normal teacher at the time (Mrs Morgenstern) was away. A relief teacher was used for that week. Rabbi Spielman stated that while the incidents on 4 August 2004 concerning Joseph may have involved his relief teacher there were numerous issues over time which involved several teachers. Rabbi Spielman confirmed that on 4 August 2004 he relied upon what Mrs Jankelow had told him. Her report was oral, not written. His particular concern was that Joseph would not accept instruction from Mrs Jankelow. This was not the first such incident.
Rabbi Spielman was asked by Mrs Tyler about the College’s disciplinary procedure annexed to his affidavit. He said that Joseph had his own programme because of his special needs and that the procedure did not necessarily apply to him.
Mrs Tyler asked Rabbi Spielman why he had not contacted Mr Tyler on 4 August 2004. He said that he had not returned the call because Mrs Tyler had contacted him the following day. Rabbi Spielman agreed that he had not contacted the Tylers before 4 August to discuss his immediate concerns concerning Joseph and said that this was not generally his personal responsibility. He only contacted parents when the matter was urgent. He could not recall precisely when the calls from Mrs Burmeister took place on 4 August 2004. He resisted suggestions that he had decided to suspend Joseph because of his disability. He also resisted suggestions that he had decided to remove Joseph permanently from the College. Rabbi Spielman reiterated that his decision was merely to keep Joseph away from school until he could have a meeting with Mr and Mrs Tyler.
Mrs Tyler asked Rabbi Spielman why there was no written record of the alleged “throwing incident”. Rabbi Spielman said that a search had been conducted but the record could not be found. Mrs Tyler asked Rabbi Spielman whether he would have been available on 4 August 2004 for a meeting. He said that it would have been a priority and he definitely would have been available within 24 hours. His preference would have been for Joseph not to have to stay away from school at all. He was not concerned that Joseph had been violent but he was concerned that Joseph had committed a dangerous act. He was further concerned that Mr and Mrs Tyler were not available for an early meeting.
Mrs Tyler asked Rabbi Spielman about a possible approach he may have made to the AIS on 3 August 2004 about Joseph. Rabbi Spielman agreed that he may have had such a discussion but could not recall any details. He agreed that exhibit A11 appears to document a telephone call from him on that day. He could not recall discussing with Mrs Jankelow or the AIS the DDA. He had read the DDA.
Rabbi Spielman was asked about the meeting that occurred on 10 August 2004. He agreed that, according to her notes, Mrs Jankelow discussed her involvement with Joseph and his problems but did not discuss a forward looking programme to meet his needs. He said that such a programme required consultation with the Tylers and that Mrs Jankelow had had to leave the meeting early in order to return to her class.
In re-examination Rabbi Spielman confirmed that the College policy concerning suspensions, in particular that set out at page 58 of his affidavit, dealt with a different issue from his safety concerns regarding Joseph. He stated that with such an issue as had arisen with Joseph normally the College would work with the child but if that proved impossible the parents would be involved. In addition, the strategy referred to on page 60 of his affidavit only applied when other strategies had failed. The written policies had no application to Joseph in any event, as he had his own programme because of his special needs.
Rabbi Spielman stated that he had not seen exhibit A11 until he had given his evidence in cross-examination and did not know who the author of the document was. He confirmed that he had no specific recollection of a conversation with the AIS on 3 August 2004.
Aviva Notelovitz
Mrs Notelovitz is a teacher at the College. She is the primary co‑ordinator of general studies at the College. She deposes as to her involvement with Joseph and Mr and Mrs Tyler. She deposes as to soiling incidents involving Joseph in February and March 2004 and a discussion she had with Mrs Tyler about the provision of a change of clothes.
Under cross-examination Mrs Notelovitz said that there were more incidents involving Joseph raising behavioural problems than those documented in her affidavit. She denied exaggerating Joseph’s problems. Mrs Tyler suggested that at the time of her conversation with Mrs Notelovitz about the provision of a change of clothes for Joseph, fresh clothes were already being provided. Mrs Notelovitz denied that a change of clothes had been provided. Mrs Tyler also challenged Mrs Notelovitz on her evidence concerning the conversation that occurred between them. Mrs Notelovitz insisted that Mrs Tyler had suggested that one or other of the siblings of Joseph (including Daniel) be called in to change him when necessary.
In response to a question from me, Mrs Notelovitz stated that in raising the soiling issue with Mrs Tyler she was intending to deal with the practical issue of the provision of clothes rather than involve herself in a programme to meet Joseph’s special needs. Mrs Notelovitz thought that she had been asked by Rabbi Spielman to raise the issue with the Tylers because she had seen a problem and because she was perceived to have a good relationship with the Tylers. Mrs Notelovitz stated however that she had not spoken to the Tylers before her conversation with Mrs Tyler about the soiling issue. The Tylers had, nevertheless, given her a gift at the end of the previous school year.
William Raymond Conway
Mr Conway is currently the deputy principal at the Sydney Japanese School and was, from 1997 to 2002, the head of the primary school at the College, then known as Yeshiva College. He left the College in January 2003. He deposes as to his involvement with the Tyler family, Joseph’s enrolment at the College and responds to the affidavit of Mr and Mrs Tyler. He further deposes as to a complaint made by Mrs Tyler about Mrs Jankelow relating to the child Daniel Tyler in 2000.
Under cross-examination Mr Conway agreed that the Tylers had dealt collaboratively with the College concerning Daniel notwithstanding the significant problems that had been experienced concerning Daniel. He agreed that in 2000 the College had suspended Daniel a number of times because of his behaviour. He also agreed that the Tylers had taken a collaborative approach with the College concerning Joseph.
Mrs Tyler asked Mr Conway about the letter dated 30 January 2002 from him to Mr and Mrs Tyler at page 11 of his affidavit. Mr Conway said that he had discussed the letter with Mrs Tyler in his office and had then amended it before it was sent. He said that it was not the sort of letter that would be appropriately sent without prior consultation with the affected parents. Mr Conway said that he had instructed his secretary to dispatch the letter and, as far as he knew, it had been sent. He was unable to comment on Mrs Tyler’s denial of receipt of the letter. In response to questions from me, Mr Conway said that it was his usual practice to print two copies of a letter and to sign both of them – one for dispatch and one for the College records. He agreed that the copy of the letter annexed to his affidavit was unsigned and that the keeping of an unsigned copy was less usual. In the letter, Mr Conway stated that the enrolment of Joseph was conditional upon the College receiving funding in order to support a programme for him and that, if it was found not to be in Joseph’s best interests to continue as a full time student at the College, the College might ask that an alternative education plan be sought for him, either within or outside the College.
Rebecca Gail Elizabeth Stewart
Mrs Stewart was, at the relevant time, the counsellor at the College. She is now retired. She deposes as to her involvement at the College and with Joseph Tyler. She deposes that in 2004 she became concerned about Joseph because she felt that he was being “minded” rather than educated. She felt that the College was not the right learning environment for Joseph. She deposes that in about July 2004 she called Mr Tyler to discuss Joseph and Daniel. She arranged a meeting to discuss both boys and found Mr Tyler to be co-operative but Mr Tyler had later cancelled the meeting. She deposes that in a “special needs team meeting” with Rabbi Gouraraie, Mrs Jankelow and Mrs Notelovitz some weeks prior to 10 August 2004, they had discussed Joseph and whether it would be in his best interests to remain at the College. No firm decision was taken. They decided that the first step should be a meeting with Mr and Mrs Tyler.
Mrs Stewart further deposes as to the meeting that occurred on 10 August 2004. She deposes that after Mrs Jankelow had left the meeting Mrs Tyler made accusations against her and stated that she had come with the intention of removing all three of her sons but had wanted to hear what the College had to say first. Mrs Tyler had stated that the children would be going to Tempe Public School. Mrs Tyler had expressed negative opinions about the history of her children’s involvement with the College. Mrs Stewart deposes that she was shocked when Mrs Tyler spoke of removing her sons and suggested a farewell party for Joseph. No such party took place. She deposes as to her opinion on the undesirability of the re-enrolment of Joseph at the College.
Under cross-examination Mrs Stewart agreed that a school report prepared by Mrs Morgenstern about Joseph at the end of the first semester 2004 had been amended by her as Mrs Jankelow thought that Mrs Morgenstern’s report was inaccurate and overstated Joseph’s performance. Mrs Stewart did not agree that Mrs Morgenstern was in a good position to prepare the report unaided. She agreed that Mrs Morgenstern had experience in dealing with disabled children, including children with Down’s Syndrome.
Mrs Tyler showed Mrs Stewart exhibit A11. Mrs Stewart could not recall discussing with Mrs Jankelow an approach to the AIS in July 2004 concerning Joseph. She could recall discussing Joseph with others at a regular Friday meeting at the College.
Mrs Tyler asked Mrs Stewart about the “throwing incident” on 4 August 2004. Mrs Stewart said that another teacher (Mrs Lee) had reported to her that Joseph had thrown an object from the balcony on that day. She recalled that Rabbi Aber also said at around that time that Joseph had run out of class. Rabbi Spielman had told her that he had requested that the Tylers keep Joseph at home until they had attended a meeting. She said that she did not understand this to be a punitive action.
Mrs Stewart did not agree with Mrs Tyler that Joseph’s difficulties were less serious than Daniel’s. She said she thought that this was debatable. She agreed that Daniel had encountered significant problems and had overcome them. Mrs Stewart said that she had experience with other Down’s Syndrome children and had a “passionate belief” that it was disastrous to attempt to engage children with such special needs in a mainstream education programme without support. She supported involving such children in a general programme with support. She agreed that Joseph was assisted by a teacher’s aide in 2004.
Jacqueline Merle Jankelow
Mrs Jankelow is the infants co-ordinator at the College. She deposes as to her employment at the College, her role as the infants co-ordinator, events at the College in 2003 and her involvement with Joseph Tyler. She also deposes as to issues arising concerning Joseph in July and August 2004 at the College. Mrs Jankelow deposes that on 23 July 2004 she attended a regular student services meeting when, amongst other things, those attending discussed Joseph’s unsettled behaviour and whether his needs were being met at the College. Mrs Jankelow deposes that on the morning of 4 August 2004 she asked Mrs Burmeister to call Mr and Mrs Tyler to arrange to meet with them to discuss Joseph’s progress. This was before the specific incidents of that day had arisen. Neither Mrs Morgenstern (Joseph’s normal teacher) nor Mrs Goldschmidt (the teacher’s aide) were working on 4 August 2004. Mrs Jankelow deposes that during that day on four occasions she was called out to find Joseph and take him back to his class, which was being taken by a relief teacher. On the fourth occasion a teacher reported to Mrs Jankelow that:
Joseph Tyler just threw something from the balcony of the College. It hit me.
Mrs Jankelow deposes that she found Joseph standing looking over a balcony and attempted to coax Joe back to class but he replied, “no”. Mrs Jankelow deposes that this was the first occasion that Joseph had ever refused to return to class with her. Mrs Jankelow deposes that Joseph went into her kindergarten year classroom, which another teacher was teaching in, and that she went to the administration area to report what had occurred to Rabbi Spielman. He was with Rabbi Gourarie. She reported the four occasions when Joseph had left his class and the throwing incident. Mrs Jankelow deposes that she heard Rabbi Spielman ask Mrs Burmeister to ask Mr and Mrs Tyler to come to the College for a meeting and to say that Joseph was not to return to school until the meeting had taken place. Rabbi Spielman also asked Mrs Jankelow to attend a meeting with Joseph’s parents.
Mrs Jankelow also deposes as to her recollection of what occurred at the meeting on 10 August 2004.
Finally, Mrs Jankelow replies to Mrs Tyler’s affidavit.
Under cross-examination Mrs Jankelow was asked about exhibit A11. She said that she had seen the document late in the preceding week and had contacted the respondent’s solicitors about it. She had located her contemporaneous handwritten notes of a conversation she had had with a Louise Bailey at the AIS some time after 27 July 2004. Mrs Jankelow said that, following the meeting she deposes to in paragraph 37 of her affidavit, she had contacted the AIS and had later been contacted by Louise Bailey. Mrs Jankelow said that she had explained to Ms Bailey the issues as she saw them concerning Joseph and Ms Bailey had provided information and advice. I accepted as an exhibit[4] the original of Mrs Jankelow’s handwritten notes of what she had been told by Ms Bailey. Mrs Jankelow said that the conversation purportedly relating to her discussion with Ms Bailey contained within exhibit A11 was not an accurate reflection of the conversation that in fact occurred, whereas her handwritten notes was an accurate record. Mrs Jankelow was unaware of any conversation Rabbi Spielman may have had with anyone at the AIS on 3 August 2004. She said that Rabbi Spielman had not raised with her any proposal to “move Joseph along”.
[4] exhibit A12
Mrs Jankelow admitted it was possible she may have discussed her conversation with Ms Bailey with Rabbi Spielman.
Mrs Tyler asked Mrs Jankelow about Joseph’s progress in mid 2004 and his semester 1 school report. Mrs Jankelow said that she had arranged for the report that had been prepared by Mrs Morgenstern to be revised by Mrs Morgenstern and Mrs Stewart. Mrs Jankelow did not think that the report prepared initially by Mrs Morgenstern was accurate. In response to other questions, Mrs Jankelow said that the school had problems with Mrs Morgenstern and she was being “managed out” between March and August 2004. Her position was under review by the board and the board was concerned that Mrs Morgenstern was not “stimulating the children”. On two occasions Mrs Jankelow had sat in Mrs Morgenstern’s class to watch her. In response to questions from me, Mrs Jankelow agreed that the performance of Mrs Morgenstern may have had an impact on Joseph’s inferior performance during semester 1, 2004. It was her evidence that Joseph’s performance had declined during that semester.
Mrs Jankelow could not recall whether she discussed her concerns about Mrs Morgenstern with the AIS. She said that she did not discuss her concerns with the Tylers. I accepted as exhibits[5] the initial and final school reports for Joseph for first semester 2004.
[5] exhibits A13 and A14
Mrs Tyler asked Mrs Jankelow about Mrs Goldschmidt. Mrs Jankelow considered that Mrs Goldschmidt had done a very good job as a teacher’s aide but confirmed that she had voluntarily reduced her hours in June 2004. Mrs Jankelow said that Mrs Goldschmidt’s position was only partially funded and Mrs Goldschmidt had partially volunteered her services. Mrs Jankelow had agreed to Mrs Goldschmidt reducing her time from five days per week to three days per week. This resulted in a reduction in the time that Mrs Goldschmidt spent with Joseph. Mrs Jankelow agreed that this reduction coincided with the exacerbation of behavioural problems experienced with Joseph. There had been earlier problems around February 2004 when there was no teacher’s aide assisting Mrs Morgenstern but the problems had reduced between March and June 2004. Mrs Jankelow had not seen a need to contact the Tylers to discuss the situation prior to July 2004. Mrs Jankelow said that after Mrs Goldschmidt had reduced her hours she had arranged for another person (Liat More) and two high school students to provide assistance to the teachers with students with special needs.
Mrs Tyler cross-examined Mrs Jankelow at some length about the events on 4 August 2004. Mrs Jankelow was unshaken on the evidence contained in her affidavit, although she did expand on it somewhat. She said that she did not regard the “throwing incident” as a reason for suspending Joseph and had not sought any suspension. She had been informed by Rabbi Spielman that the suspension related to Joseph’s refusal to follow the direction of co-ordinators, including herself.
Mrs Tyler also asked Mrs Jankelow about the meeting on 10 August 2004. Mrs Jankelow said that she regarded this meeting as the meeting that she had sought following her discussion with others at the College about Joseph and her approach to the AIS. She said that she had a clear objective in this meeting to explain what she had done in order to assist Joseph and to identify the issues as she saw them. She had hoped to use this meeting as an opportunity to engage the support of Mr and Mrs Tyler in seeking to address Joseph’s needs and had hoped that the Tylers would work with Mrs Stewart to address those issues. She was aware that Joseph had not attended school between 4 and 10 August 2004 and understood that Rabbi Spielman had instructed that Joseph was not to attend school until the meeting with Mr and Mrs Tyler had taken place.
In re-examination Mrs Jankelow stated that, consistently with the advice received from the AIS, she had sought to explain to the Tylers that the College had pursued “all avenues” to assist Joseph. She explained that the issues concerning Joseph had been addressed collectively within the College and that, because she and Mrs Goldschmidt had concerns that Mrs Morgenstern was merely “babysitting” Joseph, Mrs Jankelow had given him other work. She was looking for parental support in order to stimulate him further. She was concerned that she had not had the opportunity to engage with the Tylers to that point in 2004. In relation to her concerns about Mrs Morgenstern, Mrs Jankelow said that she did not think that Mrs Morgenstern planned her lessons effectively and did not properly understand how to address Joseph’s special needs. She saw no purpose in the work given to Joseph by Mrs Morgenstern. She was frustrated with her.
Submissions
Mrs Tyler filed in court on 18 November 2005 an outline of written submissions and also presented oral submissions. In those submissions Mrs Tyler confirms that the case is based on asserted breaches of s.5(1) and ss.22(a) and either (b) or (c) of the DDA. Mrs Tyler submits that there is no doubt that the College is an “educational institution” for the purposes of the DDA and that Joseph suffers from a “disability” for the purposes of the DDA. Mrs Tyler confirms that the application is based upon an asserted suspension of Joseph on 4 August 2004 and an asserted expulsion the following day. Mrs Tyler notes that Joseph was enrolled at the pre-school at the College in 1999 and was accepted for enrolment in the primary school in 2002. He had completed three years at the pre-school prior to commencing kindergarten in 2002.
Mrs Tyler submits that the suspension of Joseph on 4 August 2004 was discriminatory because no reason was provided immediately or within a reasonable time to his parents in accordance with the College discipline policy and because the discipline policy was applied in a different way than it would have been applied to a student without a disability in the same or similar circumstances. She submits that the discipline policy was applied unduly harshly. Further, Mrs Tyler submits that Joseph was expelled on 5 August 2004 in circumstances where a child without his disability would not have been. Mrs Tyler submits that, pursuant to s.10 of the DDA, it is sufficient if part of the reason for a discriminatory act is a disability.
Mrs Tyler submits that I should draw the following conclusions from the evidence:
·Mr and Mrs Tyler and Mr Conway enjoyed a productive relationship while Mr Conway was principal of the primary school at the College and consulted one another regarding behavioural issues affecting the Tyler children. Mr Conway implemented a modified behavioural programme (for Daniel) and applied school policies consistently, especially in relation to discipline;
·in contrast, college management in 2004 was “dysfunctional”;
·educational and management plans were developed on an ad hoc basis;
·both Rabbi Spielman and Mrs Jankelow had opportunities to consult the Tylers during 2004 about Joseph had they wished to;
·Mr and Mrs Tyler had shown a willingness to engage with the College in a consultative fashion;
·Rabbi Spielman consulted the AIS on 3 August 2004 and the evidence discloses an intention by him to seek to move Joseph to another institution;
·the alleged behavioural incidents involving Joseph on 4 August 2004 were “trivial”;
·those incidents did not warrant a suspension;
·relevant disciplinary policies had not been communicated to Mr and Mrs Tyler;
·relevant disciplinary policies were not applied;
·Joseph’s suspension would not have occurred had he not been disabled;
·the behavioural problems that Joseph apparently exhibited on 4 August 2004 (running out of class) occurred because his regular teacher and teacher’s aide were not present;
·the College’s own evidence shows that the asserted increasing problems experienced with Joseph in July and August 2004 coincided with the reduction in hours by Mrs Goldschmidt, which was authorised by Mrs Jankelow;
·the College “unilaterally” withdrew the teacher’s aide support which would have prevented the incidents which allegedly occurred on 4 August 2004;
·there was no consultation with Mr and Mrs Tyler regarding the reduction in Mrs Goldschmidt’s working time;
·the Court should infer that Rabbi Spielman decided to suspend Joseph on 4 August 2004 partly because the College could not cope with Joseph as a result of the reduction in Mrs Goldschmidt’s time;
·an additional factor was the College’s decision to terminate the employment of Joseph’s teacher (Mrs Morgenstern);
·the purpose of the amendment of the semester 1, 2004 school report for Joseph by Mrs Stewart and Mrs Jankelow was to give a pessimistic impression of Joseph’s abilities;
·the Court should also conclude that Mrs Notelovitz attempted to create a misleading impression by signing a report concerning Joseph attributed to Rabbi Aber;
·when Mrs Tyler spoke to Rabbi Spielman on 5 August 2004 neither knew of the other’s approach to the AIS;
·Rabbi Spielman constructively expelled Joseph on 5 August 2004 because his parents were left with no option but to withdraw him;
·Rabbi Spielman failed to consider the educational benefits of Joseph remaining at the College;
·Rabbi Spielman failed to consider the social and emotional benefits of Joseph remaining at the College;
·Joseph has suffered as a result of his expulsion, both emotionally and educationally;
·at the meeting on 10 August 2004 Mrs Jankelow presented a pessimistic view about Joseph;
·Mrs Jankelow failed to verbalise a constructive plan to meet the future educational needs of Joseph; and
·it is in the best interests of Joseph to require him to be re-enrolled at the College.
Mrs Tyler notes that the College failed to call evidence from Joseph’s teachers, Mrs Lee, Rabbi Aber and Mr Simons. Mrs Tyler submits that the Court should infer that their evidence would not have assisted the College.
Mrs Tyler submits that a mandatory order requiring the readmission of Joseph would be consistent with the objects of the DDA set out in s.3 of the DDA and falls within the general powers conferred by s.46PO of the HREOC Act. Mrs Tyler submits that the powers conferred by that section are conferred in broad terms and that the specific powers to make orders enumerated in the section are words of inclusion and not limitation.
Mrs Tyler submits that the evidence shows that the College is undertaking measures to ensure it has the financial and personnel capacity to provide education for Joseph should it be required to. In the event that the Court decides that no order requiring Joseph’s readmission to the College should be made, $1,000 in compensation is sought in respect of Joseph’s non-economic loss. Interest is also sought.
There is no application for legal costs.
Ms Eastman also filed in court an outline of written submissions on 18 November 2005. She also made oral submissions. The College submits that the issues for determination are whether the decision to exclude Joseph from the College on 4 August 2004 until a meeting was held with his parents was an act of disability discrimination and whether the College did expel Joseph on 5 August 2004 as alleged (and if so, was this decision an act of direct disability discrimination?). Ms Eastman expressed some concern that the case as finally put by Mrs Tyler in her submissions differed somewhat (especially in relation to the alleged suspension) from that set out in points of claim previously filed by the applicant. Ms Eastman notes that the allegation of the harshness of the application of the College discipline policy is entirely new.
Ms Eastman’s submissions are directed in part towards supporting factual findings along the following lines:
·the evidence of Mr Conway establishes that Joseph was accepted for enrolment in the primary school on a conditional basis and in the expectation that Joseph would not be able to participate fully in the normal syllabus;
·2003 had been a turbulent year for the College and there had been a serious disagreement with the Tylers concerning special needs funding;
·there had been little contact between the College and the Tylers in 2004 because the Tylers had not sought it and had been difficult to contact;
·the College had experienced difficulty with Joseph soiling himself from early February 2004 and this was raised with Mrs Tyler by Mrs Notelowitz;
·the College experienced behavioural problems with Joseph from early February 2004, especially Joseph leaving his class;
·the AIS became involved in February 2004;
·Mrs Goldschmidt was engaged to assist as a teacher’s aide in March 2004;
·on Fridays the co-ordinators of the infants and primary departments of the College, together with Mrs Stewart, met to discuss students with special needs. Joseph was discussed at one of these meetings on 21 May 2004 and his behaviour was identified as a problem;
·in June 2004 Mrs Goldschmidt reduced her hours;
·in July 2004 Mrs Stewart sought to speak to Mr Tyler about Joseph and Daniel but the meeting did not take place. Joseph’s unsettled behaviour was further discussed by the College staff on 23 July 2004 and it was decided to seek advice from the AIS;
·Mrs Jankelow telephoned the AIS on 27 July 2004 and sometime between then and 4 August 2004 she spoke to Louise Bailey, who advised a meeting with the parents;
·on the morning of 4 August 2004 Mrs Jankelow asked Mrs Burmeister to contact Mr and Mrs Tyler to arrange a meeting with them to discuss Joseph’s progress;
·there were other events on that day – in particular Mrs Jankelow was called out of her class four time to find Joseph and return him to class and on the fourth occasion Mrs Jankelow was told that Joseph had thrown something from a balcony that hit another teacher. Joseph refused to return to class with Mrs Jankelow;
·at this time Joseph’s regular teacher was not teaching;
·Mrs Jankelow reported these events to Rabbi Spielman who asked Mrs Burmeister to call Joseph’s parents and request that they attend a meeting at the College immediately;
·Mrs Burmeister unsuccessfully tried to call Mrs Tyler but successfully called Mr Tyler. He advised he would be unable to attend a meeting until 13 August 2004. On reporting this to Rabbi Spielman, the Rabbi said that the meeting was urgent and asked Mrs Burmeister to arrange an earlier meeting. Mrs Burmeister made a second successful call to Mr Tyler and passed this on. No earlier time was arranged. On reporting this again to the Rabbi, Mrs Burmeister was told to call again and request an immediate meeting. The Rabbi asked Mrs Burmeister to tell Mr Tyler that Joseph’s behaviour was too disruptive and he would not take instruction. The Rabbi instructed Mrs Burmeister to tell Mrs Tyler that Joseph would not be able to come back to school until the requested meeting had taken place;
·Mr Tyler did not inform his wife about the College’s request until later that day – the evidence of Mr and Mrs Tyler is different as to when their conversation took place;
·no one at the College informed Mr Tyler that Joseph was expelled or excluded permanently from school;
·exhibit R6 shows that at 6.48pm on 4 August 2004 Mrs Tyler had decided to remove all three of her sons from the College and asked the AIS to terminate funding for Joseph and Daniel forthwith;
·Mrs Tyler had not spoken to anyone at the College and relied solely on her understanding of what her husband told her;
·the decision that Joseph be withdrawn from the College was Mrs Tyler’s;
·in her discussion with Rabbi Spielman on 5 August 2004, Mrs Tyler did not mention her e-mail to the AIS. They discussed Joseph’s needs and whether he would be better off at Joseph Varga School. They arranged a meeting on 10 August 2004. The purpose of that meeting was to discuss what to do. At no stage did Rabbi Spielman tell Mrs Tyler that Joseph was expelled or permanently excluded;
·after this call Mr and Mrs Tyler made arrangements to enrol their children at alternative schools;
·at the meeting on 10 August 2004 the College representatives were surprised when Mrs Tyler announced that she was withdrawing her children and when she described the meeting as an “exit interview”;
·within a week of Joseph’s enrolment at Tempe Public School it was apparent he could not manage in the regular classroom and arrangements were made for him to attend Athelstane Public School in a support class. He was enrolled there in a class for students with moderate intellectual disabilities, where he remains.
Ms Eastman notes that following the High Court decision in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92, and the Full Federal Court decision in Forbes v Commonwealth of Australia [2004] FCAFC 95, it is clear that the DDA does not impose an obligation to provide different or additional services for a person with a disability[6]. The Act is not concerned with affirmative action.
[6] see Purvis v State of New South Wales, Waters v Public Transport Corporation(1991) 173 CLR 349, Forbes v Commonwealth, Fetherston v Peninsula Health [2004] FCA 485, Cosma v Qantas Airways Ltd (2002) 124 FCR 504, Commonwealth of Australia v Humphries (1998) 86 FCR 324, and A School v Human Rights and Equal Opportunity Commission (1998) 55 ALD 116
Ms Eastman submits that Joseph was excluded from school temporarily, until the College could have a meeting with his parents. The reason for his exclusion was a combination of his behaviour plus the stated inability of his parents to attend a meeting until 13 August 2004. There is no evidence of a causal link between this temporary exclusion and Joseph’s disability. As to causation, Ms Eastman makes the following submission:
Causation in discrimination law was addressed in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 and then by the High Court in Purvis v State of New South Wales. At para 166, McHugh and Kirby JJ (who dissented but not on this point) said:
The weight and course of authority no longer accepts that the “but for” test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.
Gummow, Hayne and Heydon JJ at [236] said:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.
Ms Eastman makes the following further submissions on this point:
It would only be in the absence of clear or direct evidence that a reason that the Appellant was treated unfavourably because of his disability, that he could then refer to evidence to support an inference that disability was a reason for the College’s decision. For the Court to be able to draw an inference, the evidence must support a finding based on a probability of discrimination rather than a possibility of discrimination.[7] Unlawful discrimination cannot be inferred when more probable and/or innocent explanations are open on the evidence.[8]
An allegation of discrimination must be based on more than the Applicant’s feelings or belief. A complainant’s feeling or belief, no matter how genuinely held, that she has been discriminated against is not sufficient to establish that there has been unlawful discrimination.[9]
Further there is no evidence that the College treated Joseph less favourably. The Applicant asserts that if Joseph had been a “normal” student he would not have been suspended, but there is no evidence to support the assertion. The evidence in fact makes it clear that the College took these steps for all students. There is no less favourable treatment. See Purvis at [222] and ff.
[7] Bennett v Everitt (1988) EOC ¶92-244 at 77,270 and 77,272
[8] Fenwick v Beveridge Building Products (1985) 62 ALR 275, Fares v Box Hill TAFE (1992) EOC ¶92-391 at 78,771.
[9] See Herring v Benevolent Society of New South Wales (1992) EOC ¶92-408 at 78,896-7, Hill v University of New England (1990) EOC ¶92-291 at 77,951, Sivananthan v Commissioner of Police [2001] NSWADT 44, Power v Hyllus Maris Aboriginal Community School In (1994) EOC ¶92-587(2) and Keller v Australian National Audit Office (1995) EOC ¶92-645(2)
Ms Eastman further submits that, in any event, there is no evidence that Joseph was excluded because of his disability so causation cannot be established on the facts. Additionally, she submits that there is no evidence that a student without Joseph’s disability would have been treated more favourably in the same circumstances.
Ms Eastman also makes submissions in relation to appropriate relief and remedies should the applicant’s claim be substantiated. She submits that the appropriate relief is a declaration. Ms Eastman makes the following submissions on the power of the Court to order the re‑enrolment of Joseph:
Section 46PO(4) empowers the Court to make a range of orders.
There are two issues that arise in relation to the Applicant’s prayer for relief concerning re-enrolment. The first is whether there is power. Secondly, if there is power, whether it would be appropriate in the circumstances to exercise that power.
Power to make order
The power in section 46PO(4)(b) – “an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant” is a general power. It has been used to order respondents to make apologies to an applicant.
However, where reinstatement may be ordered, section 46PO(4)(c) specifically empowers the Court to make “an order requiring a respondent to employ or re-employ an applicant”. As equity does not provide for specific performance of a contract of employment, statutory remedies which enable a person to be reinstated have developed.
Indeed an equitable remedy for specific performance will not be made to compel the performance of services or the maintenance of a personal relationship: Meagher, Heydon and Leeming "Equity - Doctrines and Remedies" (4nd ed) at para. 20-055 (copies attached)
There is no express power to order that an educational authority accept a person’s enrolment or readmit or re-enrol a student.
The absence of any express power is significant. Clearly if Parliament intended to provide the Court will a range of orders to require respondents to engage in certain activities then that power would be express. The College submits that the HREOC Act does not provide that the Court may order persons to provide services, or accommodation in relation to complaints of discrimination under this head. The only express power is with respect to reinstatement.
The Applicant is in effect seeking a mandatory injunction or an order akin to specific performance, but it is not clear what is the Court’s power to make such an order. The nature of the order sought is not clear in its terms but in effect it will require the Court to direct that the child is re-enrolled. This direction would operate to by-pass the College’s usual enrolment procedures and the matters which the College would ordinarily take into account in determining a person’s suitability for enrolment. Further, it assumes that it is possible for the enrolment to be effected having regard to the number of students already attending the College and the usual teacher-student ratios. The nature of the order would do more than declare the parties’ rights; it will require the Court to create new rights between the parties. The nature of the function which the Court is being asked to engage in is akin to an administrative rather than judicial role.
The remedies in section 46PO(4) of the HREOC Act must be construed in a manner which ensures that the Court does not transgress the line between judicial and executive power. As a Chapter III court, the Court may exercise the judicial power of the Commonwealth. In particular section 46PR provides that the Court is not bound by technicalities or legal forms, subject to Chapter III of the Constitution.
A further source of power is section 15 of the Federal Magistrates Act 1999 (Cth) which is similar in terms to section 23 of the Federal Court of Australia Act 1975 (Cth). Section 23 of the latter Act provides:
"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."
In Patrick Stevedores Operations (No 2) Pty Limited v Maritime Union of Australia (1998) 195 CLR 1 at 29 and 35 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ made the following observation about the scope of section 23:
(at 29)
"… may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction: Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 425-426, 456."
At 35
"But the powers of the Federal Court under s 23 are limited to the making of orders that are "appropriate" and that limitation directs attention to the rights and liabilities of the parties to the proceeding under the applicable law, both Commonwealth and State or Territorial laws."
Gaudron J said (at 61):
"It is correct to say, as the applicants for special leave contend, that resort cannot be had to s 23 of the Federal Court Act to supplement a provision of another Act which provides exclusively and exhaustively as to the relief available, which provides as to conditions which must be satisfied before relief is granted or otherwise imposes limitations on the grant of relief."
Section 46PO(4) provides:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
….
Section 15 of the FM Act must be read with section 46PO(4) of the HREOC Act and in the College’s submissions, section 46PO(4) is the exclusive source of the remedial power for discrimination claims.
Ms Eastman submits that even if the power to make an order requiring re-enrolment exists then such an order is discretionary and the Court should exercise its discretion not to grant such an order because it would not be appropriate. Essentially, Ms Eastman submits that it would not be in Joseph’s best interests to be re-enrolled at the College because his needs would be better served where he is.
While the College opposes and award of damages, Ms Eastman does not dispute that the amount of damages sought ($1,000) would be an appropriate amount if the Court decided to award damages. The College wishes to be heard on costs.
Mrs Tyler filed written submissions in reply on 5 December 2005. She makes the following points:
·For clarity, the applicant states that he proceeds under the DDA and raises the following arguments in respect of the application for reinstatement to the College.
·The applicant submits that a court may make an order that a contract has not been terminated but remains on foot under s.46PO(4) of the HREOC Act.
·A contract for tuition is not a contract for personal services but a contract for services. It is a contract between the parents and the school for the education of a child.
·There is “an implied contract between the parent and the … [school] that the latter will continue to educate the child so long as his conduct does not warrant his expulsion from the school”: FitzGerald v Northcott [1864] ER 734 at 748 per Cockburn CJ.
·There is no need for the Act to identify the remedies for breach of contract where the remedies are available under general law.
·Section 46PO(c) was inserted to redress a situation where under the general law an applicant could not obtain adequate relief, such as an order for reinstatement, as an order for specific performance is not available to parties in a contract for personal services.
·An applicant who alleges discrimination in employment has an election to pursue a remedy under industrial law or under discrimination law. No such election is available to an applicant alleging discrimination in education.
·The issue of reinstatement (rather than re-enrolment) in the applicant’s case becomes an issue of whether the implied contract has been broken.
·The applicant alleges that his purported suspension occurred as a result of the principal’s belief that the applicant had engaged in dangerous conduct, viz, throwing an object from a balcony and hitting a teacher below, as well as not listening to a co-ordinator.
·The College’s rules at that time did not provide for immediate suspension of a pupil for not obeying a co-ordinator.
·The principal did not make enquiries into the incident. He did not have due regard to fairness. He did not consider the likelihood of injustice arising from mistake.
·While the principal may have held a reasonable belief as to the applicant’s conduct at the time of the suspension, had he made enquiries he would have found the facts otherwise than he believed at latest by 10 august 2004. The applicant submits that the principal should not be able to rely successfully upon an allegation as to the existence of the throwing incident, or a belief that the throwing incident had occurred to justify the College’s refusal to readmit the applicant to the College: McMahon v Buggy (1972) Supreme Court of NSW Equity Division, unreported No 2095/72 at 43.
·The applicant alleges a denial of procedural fairness. Rabbi Spielman does not remember whether he made enquiries about the incident but says that if he did he would have enquired after the teacher’s health. He could not remember whether he had done so.
·The respondent alleges Mrs Tyler made the decision to withdraw the applicant and his brothers. In respect of the applicant’s brothers, Mr Tyler and Mrs Bermeister gave evidence regarding the children’s transportation by taxi in the afternoons. Mr Tyler gave evidence regarding subsidised transport available to the applicant and not to the other children. The College’s decision to suspend the applicant denied the other children the taxi which transported them home in the afternoon (at least at the subsidised rate).
·The respondent alleges that Mrs Tyler indicated an intention to withdraw the applicant from the school in her communication with the AIS. The purported intention was not communicated to the College.
·The respondent cannot rely on the evidence of Mrs Tyler’s purported intention to indicate that the contract had come to an end. The intention to rescind the contract must be communicated to the respondent, who can treat it as an anticipatory breach, otherwise the respondent was required to wait until actual rescission. The respondent agrees that there was no communication of intention prior to 10 August 2004.
·There is no evidence before the Court as to whether the Tylers continued to pay school fees until the end of the year or not. The respondent did not cross-examine the Tylers on this point. There is evidence that Alicia Tyler continued at the College and finished her HSC there.
·One of the implied terms of the contract for tuition is a term that the education services would be provided according to law and in accordance with discrimination law.
·The applicant seeks a declaration that the purported suspension and subsequent expulsion were discriminatory. The applicant contends that the suspension, expulsion and subsequent withdrawal amounted to constructive dismissal.
·The remedies for breach of contract are found in the general law of contract.
·In assessing the remedy for breach of contract the principle of restitution applies, that is that a person be put back in the position he would have been in “but for” the breach.
·The usual remedy for breach of contract is damages but equitable remedies such as specific performance are available where damages are inadequate.
·The applicant contends that it will be unconscionable for the respondent to escape the contract.
·The DDA makes it unlawful for an educational authority to discriminate against a student on the ground of the student’s disability by expelling the student or by subjecting the student to any other detriment (ss.22(2)(b) and (c)).
·The second reading speech moving the introduction of the DDA expresses that the Act promotes “affirmative action measures which are designed to enable and encourage equality of opportunity”. The speech also promotes “the right to dignity, privacy, choice and the fulfilment of their capacities to contribute fully in community life”.
·It would be contrary to the principles of the Act that an educational authority can expel a pupil on discriminatory grounds and claim that the only remedy is damages in the knowledge that it will be required to pay only a small amount of compensation.
·The College is the educational authority to which the applicant chooses to return. The innocent party in a breach of contract has the election to treat the contract as terminated for breach and claim damages, or to treat the contract as still on foot.
At the request of the College I took the somewhat unusual step of permitting Ms Eastman to make short oral submissions on 21 December 2005 in response to Mrs Tyler’s submissions in reply. Ms Eastman first submits that, to the extent that the applicant’s submissions in reply sought to raise a claim in contract in the Court’s accrued jurisdiction, that claim should not be accepted. I ruled that I had no contractual claim before me and that it was now too late for a contractual claim to be raised. I also noted that, if there was a contract, it would be likely to have been between the College and Mr and Mrs Tyler, rather than between the College and Joseph, and Mr and Mrs Tyler were not parties to these proceedings in their own right. Mr Tyler was removed as a party. Mrs Tyler appeared only as litigation guardian for the applicant.
Secondly, Ms Eastman submits that I should have regard to the decision of the ACT Supreme Court in Seymour & Anor v Swift, Shore & Ors (1996) 10 ACTR 1 concerning the issue of procedural fairness raised in the applicant’s written submissions in reply. Ms Eastman submits that procedural fairness, as that concept is understood in public law, is not relevant to these proceedings.
Finally, Ms Eastman submits that I should exercise caution in dealing with the second reading speech referred to in the applicant’s written submissions in reply. Ms Eastman submits that it is clear from the decision of the High Court in Purvis that affirmative action (while it may be relevant to special measures authorised under the DDA) is not a relevant consideration in the determination of claims of unlawful discrimination under the DDA.
Reasoning
There is no doubt that Joseph suffers from a disability for the purposes of the DDA. There is also no doubt that the College is an educational institution for the purposes of the DDA. The questions to resolve are whether, by excluding Joseph, the College treated him less favourably than, in circumstances that are the same or are not materially different, the College would treat a person without his disability and, secondly, whether Joseph suffered loss or damage as a result if unlawful discrimination did occur. In answering these questions, disputed issues of fact need to be resolved concerning causation, intention and knowledge. It is necessary also to adequately identify a comparator for the purposes of determining whether unlawful discrimination occurred. It is important also to bear in mind the concept of “accommodation” under s.5(2) of the DDA.
A discriminatory motive is generally not necessary to be proved[11]. Motive may nevertheless be relevant in determining whether or not an act is done “because of” disability[12].
[11] Purvis v New South Wales at [160]
[12] Purvis at [236]
Purvis raised similar issues to the present case. Gleeson CJ held in that case:
The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. … If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 [of the DDA] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people.[13]
[13] at [13]
Nevertheless, s.10 of the DDA makes clear that a person’s disability does not need to be the sole, or even the dominant reason, for a particular decision.
The standard of proof applicable in this case is the ordinary civil standard. Briginshaw v Briginshaw (1938) 60 CLR 336 does not establish a separate standard of proof, it merely establishes that the degree of satisfaction a court may require may vary depending upon the seriousness of the allegations the Court must deal with[14]. It has been common for this Court to apply the Briginshaw principle in cases raising particularly serious allegations, including sexual harassment claims. There is nothing in this case which calls for a degree of satisfaction beyond that of the balance of probabilities.
[14] Duhbihur v Tranport Appeal Board & Anor [2005] NSWSC 811 at [59]-[65]
I make the following factual findings relevant to the determination of the issues in dispute between the parties:
a)I accept Mr Conway’s evidence concerning the conditional enrolment of Joseph. Although Mrs Tyler denied receipt of the letter of enrolment sent by Mr Conway I accept his evidence that she was present with him when he explained the position of the College to her;
b)the College and the Tylers had encountered difficulties in dealing with Joseph’s brother Daniel (who is also disabled) but worked co-operatively together to establish and apply a modified behavioural programme for him. They were successful in overcoming their difficulties;
c)the College had experienced extreme difficulties in 2003 because of financial problems and those problems were still being resolved during 2004;
d)I accept the respondent’s evidence (in particular that of Mrs Notelovitz) that the College experienced difficulty in dealing with Joseph in 2004. The issue of soiling had been raised by Mrs Notelovitz with Mrs Tyler. I accept Mrs Tyler’s evidence that she thought that problem had been dealt with. The College experienced other behavioural problems with Joseph, in particular his leaving class at various times in 2004. There had only been limited contact between the College and the Tylers in 2004 but nevertheless a modified educational programme was being developed by the College for Joseph in consultation with the Tylers. The AIS became involved in February 2004 and Mrs Goldschmidt was engaged as a teacher’s aide to assist Joseph’s teacher from March 2004;
e)Joseph’s behaviour was discussed by Mrs Stewart with other staff at the College on 21 May 2004;
f)following the reduction of hours by Mrs Goldschmidt in 2004, and her consequent reduction in availability to assist Joseph’s teacher, Joseph’s behavioural problems increased;
g)Mrs Stewart sought to raise her concerns about Joseph’s unsettled behaviour with Mr Tyler in July 2004 but the meeting she proposed did not take place. Joseph’s behaviour was further discussed by the College staff on 23 July 2004 and it was decided to seek advice from the AIS;
h)I accept Mrs Jankelow’s evidence concerning her telephone approach to the AIS on 27 July 2004 and her conversation with Louise Bailey on 4 August 2004. The AIS advised a meeting with the Tylers;
i)the situation was complicated by the College’s dissatisfaction with Joseph’s then teacher. The teacher’s report prepared about Joseph’s progress at the end of semester 1, 2004 was amended by Mrs Stewart which in part reflected the dissatisfaction of the College with the teacher. By August 2004 the College had decided that it should dispense with the teacher’s services;
j)on the morning of 4 August 2004 Mrs Janeklow asked Mrs Burmeister to contact Mr and Mrs Tyler to arrange a meeting with them to discuss Joseph’s progress. In making that request Mrs Jankelow was acting upon the advice from the AIS;
k)other events on that day precipitated the intervention of Rabbi Spielman. Both Joseph’s regular teacher and the teacher’s aide were absent on that day and Joseph’s class was being taken by a temporary teacher. I accept the respondent’s evidence (in particular that of Mrs Jankelow and Rabbi Spielman) as to the incidents that occurred on that day. Mrs Jankelow was required on four occasions to find Joseph after he had left his class and to return him to his class. On the fourth occasion Mrs Jankelow was told that Joseph had thrown something from a balcony, which had hit another teacher. Joseph refused to return to class with Mrs Jankelow;
l)on being told of these events by Mrs Jankelow, Rabbi Spielman independently (and possibly unaware of Mrs Jankelow’s request for a meeting with the Tylers earlier that day) asked Mrs Burmeister to request an urgent meeting with Mr and Mrs Tyler;
m)Mrs Burmeister initially did not effectively communicate Rabbi Spielman’s request. She did not understand and convey the urgency of the situation. The evidence of Mrs Burmeister and Mr Tyler as to what was said during their three conversations on 4 August 2004 is broadly consistent. Mr Tyler was originally given to understand that there was no particular urgency and he indicated that he could not attend a meeting until 13 August 2004. In her second conversation with Mr Tyler, Mrs Burmeister was able to convey some sense of urgency but was unable to explain why the situation was urgent. Mr Tyler advised that he would need to check with his wife to see whether an earlier meeting could be arranged. On the evidence of Rabbi Spielman, which I accept, when this was reported to him by Mrs Burmeister, he understood that the Tylers were refusing to attend an urgent meeting. He was somewhat frustrated by this and instructed Mrs Burmeister to inform Mr Tyler that because of Joseph’s disruptive behaviour, he would not be able to return to school until the requested meeting had taken place;
n)on Mr Tyler’s evidence, which I accept, he understood that Joseph had been excluded from the College temporarily, until a meeting with him and/or his wife took place. He conveyed that information to his wife orally on the evening on 4 August 2004;
o)exhibit R6 shows Mrs Tyler experienced anger at the action of the College. She formed the view that the position of Joseph at the College was untenable and asked the AIS to terminate special funding for him. Mrs Tyler formed at least a preliminary intention to withdraw both Joseph and Daniel from the College;
p)Mrs Tyler and Rabbi Spielman had a long but inconclusive conversation on 5 August 2004. Mrs Tyler expressed her dissatisfaction with the performance of the College. Rabbi Spielman expressed his concern about the ability of the College to meet Joseph’s needs. Mrs Tyler, as a result of her conversation with Rabbi Spielman, confirmed her intention to withdraw Joseph (and her other sons) but did not reveal that to Rabbi Spielman in that conversation;
q)Mrs Tyler agreed to attend a face to face meeting with College staff on 10 August 2004. Prior to that meeting no one at the College knew that Joseph or his brothers would be withdrawn. When, at that meeting, Mrs Tyler revealed her intention, those present were genuinely surprised. Rabbi Spielman expressed disappointment at Mrs Tyler’s decision insofar as it related to Joseph’s brothers. He indicated that the College felt that Joseph’s needs would probably be better served elsewhere;
r)Joseph was initially enrolled at Tempe Public School in its general programme but, at the first available opportunity, Mr and Mrs Tyler arranged for Joseph to be transferred to Athelstane Public School in a special class. Joseph remains at that school in the special class.
These facts establish to my satisfaction that the permanent removal of Joseph from the College was the decision of Mrs Tyler and not the College. Mrs Tyler sought to argue that there had been a “constructive expulsion” by analogy of reasoning with the concept of constructive dismissal from employment. Even if such an analogy could properly be drawn, there was no constructive expulsion in this case. If the College had wanted to remove Joseph permanently it could have said so, given the conditional basis upon which his enrolment was accepted. Mrs Tyler formed the view, rather precipitantly, that Joseph’s position at the College was untenable. The position of the College was that Joseph’s position was problematic and that those problems needed to be addressed in consultation with his parents. The College was looking for additional support and involvement from Mr and Mrs Tyler to see if the perceived problems could be overcome. It is true that the situation was exacerbated by Joseph’s then teacher whose ability was apparently not adequate to the task. Indeed, the College had decided to dispense with her services. However, that teacher was not present on 4 August 2004 when the incidents precipitating Rabbi Spielman’s intervention occurred. It was those incidents, rather than the performance of Joseph’s regular teacher that led to Rabbi Spielman’s intervention. Rabbi Spielman’s immediate and only concern was the need to address the risk which Joseph’s behaviour presented. At a more general level, the College required consultation with Mr and Mrs Tyler in order to address the issue of Joseph’s educational needs. It was both the specific and the more general issues that were to be discussed at the meeting on 10 August 2004. As a result of the prior decision made by Mrs Tyler to withdraw her children, that meeting could not be productive.
I find that the College did not expel Joseph. He was withdrawn by his parents.
It remains possible that the College discriminated against Joseph by excluding him temporarily on 4 August 2004. Rabbi Spielman conceded under cross-examination that the College’s discipline policy did not apply to Joseph because of his special needs. It is clear on the evidence that on 4 August 2004 Rabbi Spielman did not apply the relevant discipline policy. To that extent, Rabbi Spielman treated Joseph differently from how he would have treated a student without Joseph’s disabilities. However, that fact by itself does not establish unlawful discrimination. The College had already decided in consultation with the Tylers that Joseph had special needs that required a special educational programme. These were special educational services for the purposes of s.5(2) of the DDA. The non application of the College’s usual discipline policy to Joseph was an element of those special services. It follows, in my view, that the non application of the school’s discipline policy to Joseph could not, of itself, be discriminatory for the purposes of s.5(1) of the DDA.
In order to deal with the question of whether the temporary removal of Joseph by the College was discriminatory, it would be necessary to identify an appropriate comparator. But, first, I will consider whether Joseph’s disability was the reason, or part of the reason, for the action taken by Rabbi Spielman. There is a significant problem confronting the applicant at this point. In Purvis the allegation was that the pupil suffered from a disorder resulting in disturbed behaviour. In this case, while there is clearly evidence that Joseph presented with behavioural difficulties, I have no medical evidence at all that these were a consequence of his Down’s syndrome. Even if I had such evidence, it is clear from the evidence of Rabbi Spielman, which I accept, that he took his action not because of any concern about a behavioural consequence of Joseph’s disability, but rather because of his concern about the College’s duty of care to its teachers and its students (including Joseph). Rabbi Spielman was seriously concerned, after the alleged throwing incident, that the College might breach its duty of care if it did not take immediate action. Mrs Tyler disputes that the throwing incident ever took place, or if it did, that it involved Joseph. The available evidence is not sufficiently clear to enable me to make a conclusive finding on that point. What is clear, however, is that it was reported to Rabbi Spielman that Joseph had been involved in a throwing incident and that Rabbi Spielman believed that there had been such an incident involving Joseph when he instructed Mrs Burmeister to arrange an urgent meeting. He continued to hold that belief when he took the decision to exclude Joseph from the College until the meeting he sought had occurred. The action taken by Rabbi Spielman was action taken in order to ensure compliance by the College with its duty of care and for no other reason. I find that Joseph’s disability was not the cause of his temporary exclusion from the College.
Even if I were wrong in that finding, in my view, the action taken by the College in temporarily excluding Joseph was not discriminatory. The appropriate comparator would be:
a)a student in the same class as Joseph;
b)who did not have the same disability;
c)who exhibited the same behaviours as Joseph; and
d)who was not subject to the College’s normal discipline policy because of special needs.
The last element in establishing the comparator is necessary because the special services put in place for Joseph are not to be taken as discriminatory because of the operation of s.5(2) of the DDA and without that element, a fair comparison cannot be made. I have no persuasive evidence before me that the College would have treated the hypothetical comparator any differently than it treated Joseph. The same duty of care issues would have arisen. It would have been irresponsible for Rabbi Spielman to have taken no action as that would have exposed the College to substantial risk. The situation, as Rabbi Spielman understood it, called for an urgent meeting with the pupil’s parents. Rabbi Spielman’s understanding (albeit not entirely correct) was that an urgent meeting would not be possible and hence he saw no alternative but to exclude Joseph until the meeting occurred. I have no reason to believe that Rabbi Spielman would have acted any differently in the case of the hypothetical comparator. I find that the action taken by Rabbi Spielman in excluding Joseph until a meeting with his parents occurred was not discriminatory for the purposes of the DDA.
In the light of my findings above, it is unnecessary to consider what relief would have been appropriate had unlawful discrimination been established. Nevertheless, in order to avoid the possibility that silence might connote agreement with one set of submissions or another, I will add some general observations. If unlawful discrimination had been established, I would not have ordered that the College accept Joseph back. That is not because of any view that the Court lacks the power to make such an order, but rather because I would not have considered such an order appropriate in the circumstances of this case. Section 46PO(4) of the HREOC Act is not an exhaustive statement of the orders that can be made by the Court and I would not regard resort to s.15 of the Federal Magistrates Act 1999 (Cth) as unavailable.
I find unconvincing the various submissions that have been made about the existence of a contract for the provision of services between the College and either Joseph or his parents and the consequences of it. I do not accept the proposition that a contract necessarily arises between an educational institution and a student (or his or her parents) in the provision of education. Such a contract is, in my view, unlikely in public education where the provision of services is regulated by state and territory law. Moreover, the DDA distinguishes between discrimination in the general provision of goods and services (where a contract might reasonably be expected) and discrimination in the provision of education (where a contract may or may not exist). Neither do I see particular significance in the express power conferred on the Court to require the reinstatement of an employee. The employment relationship is normally regulated by contract. In those circumstances Parliament has shown foresight in order to put beyond doubt the power of the Court to require reinstatement even though that may have the effect of compelling the parties to enter into a contract or to reinstate one. In relation to education, where a contractual relationship does not necessarily arise (and in respect of public education probably would not) such an express power is unnecessary. In any event, it seems to me strongly arguable that the language of s.46PO(4)(b) is wide enough to authorise an order, the consequence of which is to compel a contract for the provision of services, if that consequence would be reasonable.
On the facts of this case, however, an order requiring the readmission of Joseph to the College would not be appropriate. First, there is abundant evidence that Mrs Tyler had lost confidence in the ability of the College to provide appropriate education for Joseph. It is impossible to believe that her confidence has been restored. Secondly, the reasons advanced by Mrs Tyler as supporting such an order are far from convincing. It cannot be assumed that if Joseph were readmitted to the College, he would be able to rejoin his former friends in the same class. Neither am I persuaded that Joseph’s needs would be best met in a class in a general educational programme, rather than in a special class such as the one where he is currently located.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 January 2006
[10]R v Quinn; ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 18 Aickin J, quoted with approval in Pasini v United Mexican States (2002) 209 CLR 246 at [59] Kirby J, and in Lutton v Lessels (2002) 210 CLR 333 at [188] Callinan J. See also Precision Data Holdings Ltd v. Wills (1991) 173 CLR 167 at 189; Harris v. Caladine (1991) 172 CLR 84 at 147-8; The Queen v. Hegarty; ex parte City of Salisbury (1981) 147 CLR 617 at 628, 632; Reg. v. Joske; ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1974) 130 CLR 87 at 95; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267; The Queen v. Quinn; ex parte Consolidated Foods Corporation (1977) 138 CLR 1 at 5, 6, 8; Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty Ltd (1959) 101 CLR 652 at 660; The Queen v. Davison (1954) 90 CLR 353 at 368-9; Re Dingjan; ex parte Wagner (1995) 183 CLR 323 at 360; Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153 at 178-9; Aston v. Irvine (1955) 92 CLR 353.
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