Zhang v University of Tasmania & Ors

[2009] HCATrans 332

[2009] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H6 of 2009

B e t w e e n -

YUEHUA ZHANG

Applicant

and

UNIVERSITY OF TASMANIA AND DALLAS HANSON AND JIM GARNHAM AND PHILLIPA ORMANDY AND CAREY DENHOLM

Respondents

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2009, AT 11.04 AM

Copyright in the High Court of Australia

MR T.P. MITCHELL:   May it please the Court, I appear for the applicant in that matter.  (instructed by FitzGerald & Browne)

MR P.J. HANKS, QC:   Your Honours, I appear for the respondents.  (Australian Government Solicitor)

CRENNAN J:   Yes, Mr Mitchell.

MR MITCHELL:   Your Honours, this application is concerned with the construction of section 5(1) of the Disability Discrimination Act and two special leave questions arise in that context.  The answer to the first question will define the boundaries of the application of the principles set down by this Court in the decision of Purvis v New South Wales and the second special leave question concerns the role of an intermediate appellate court exercising its rehearing function in circumstances where a party has not been represented at trial.

CRENNAN J:   There seems to be a theme in your written submissions that Purvis is somehow not the appropriate case to be applied in this context.

MR MITCHELL:   Yes, your Honour.

CRENNAN J:   Are you able to explicate that?

MR MITCHELL:   Yes, your Honour.  There are two very significant differences between the circumstances that the Court was faced within Purvis and the present case.  The first is that the disability in the present case is one that was imputed to the applicant arising out of behaviour that she exhibited.  There was no evidence that the applicant was actually subject to a disability other than the one that was imputed to her.  The second significant difference is that in the decision in Purvis it was accepted by all parties and conceded by the appellant in that case that the principal’s actions in suspending and expelling the student were because of his behaviour and then the question before the court was should that be characterised as treatment because of the disability.

CRENNAN J:   This is a point about the comparator, is it?

MR MITCHELL:   It is, your Honour.

CRENNAN J:   Yes, I see.

MR MITCHELL:   At its essence, my submission is that the majority below has taken the principles in Purvis beyond their legitimate boundaries in applying them in this case and has done so in a way that is inconsistent with the proper construction of section 5.

KIEFEL J:   Each of the members of the Full Court ‑ ‑ ‑

MR MITCHELL:   The majority of the Full Court.

KIEFEL J:   I thought each of the members of the Full Court had used the test taken from Purvis.

MR MITCHELL:   I beg your pardon, your Honour is correct in that.  Justice Gray, although coming into a different result, did apply the comparator or would have applied the comparator from Purvis if her Honour had been deciding the questions.

CRENNAN J:   Do you want to take us to specific reasoning in the majority judgment which illustrates your point that Purvis v New South Wales was inaptly applied?

MR MITCHELL:   Perhaps an easier way to illustrate the point, your Honour, is rather than going to the majority reasoning to explaining how the differences have an operating effect in circumstances where the disability is imputed, to briefly touch on what the majority said.  The real nub of the decision in the application of Purvis is found at paragraphs 63 to 65 which is at application book 49 and 50.  What the majority have done is to assume without finding that there was a disability imputed to the applicant.  That is numbered paragraph 1.  Numbered paragraph 2 within paragraph 63 was to assume that the applicant had been subjected to:

‘any other detriment’ within the meaning of s 22(2)(c) of the DDA –

Then following that is the discussion by the majority of why it is that Purvis should be applied in the present case.  The last sentence in paragraph 63 setting out why it said that there is not any less favourable treatment is because:

the relevant comparator is a person displaying the same behaviour as the Appellant but without the disability, not a person without the disability and without the behaviour.

In my submission, that is the critical error in the decision of the majority which caused the incorrect, in my submission, result to be arrived at.  Now, in all, with the exception of his Honour Justice Callinan, of the judgments of each of the Members of the Court in Purvis identified the fact that what section 5(1) is directed to is ascertaining that the true basis or the real reason for the conduct, and that reflects the objects of the Act which are set out in section 3, and the jurisprudence recognises that when looking at conduct that may be discriminatory, the court’s focus is on the actions of the person who engages in the conduct rather than particularly the effect that it has on the person claiming to have been discriminated against.

KIEFEL J: Section 5(1) requires that the circumstances of the comparator be the same or not materially different.

MR MITCHELL:   Yes, your Honour.  In my submission, there are two possible answers to the construction of that in these circumstances.  The first is to posit a comparator who exhibits the same behaviour as the student, and that is what the Court did in Purvis, and that is what the majority did below.  The second is a PhD student not exhibiting the behaviour but who has otherwise the same features as ‑ ‑ ‑

KIEFEL J:   You are really arguing Purvis is wrong, are you not?

MR MITCHELL:   No, with respect, your Honour.  What I am arguing, and perhaps I am not expressing myself sufficiently clearly, is that Purvis does not apply when there is an imputed disability.

KIEFEL J:   I am sorry, I just do not follow that.

MR MITCHELL:   I will move to the explanation of that.

KIEFEL J:   Yes.

MR MITCHELL:   The reason why, in the case of an imputed disability, that phrase needs to be construed in the way that I contend is because if it is construed so that a person to whom a disability is imputed by reason of behaviour, if the comparator also exhibits the behaviour, then it must follow that that applicant will never make out unlawful discrimination.  Take the example where a teacher universally imputes a mental disorder to any student who shouts in class.  If that teacher then universally subjects those students to less favourable treatment and expressly does it on the basis that they suffer from a mental disorder, still there will never be a contravention of the Act because the comparator has the shouting behaviour and the defence will be every student who exhibits that behaviour is treated in the same way. 

Relevantly, the exact same conduct of the teacher where the teacher is simply informed that a student has a mental disability and then he expressly expels the student on the basis of the disability, that will be a contravention of the Act because there is no relevant behaviour attributed to the comparator. This shows that the same conduct, which has to be the focus of section 5(1), the conduct of the discriminator, which is exactly the same in both circumstances and for the same reason in both circumstances, arrives at inconsistent results. The submission is that there is not a one size fits all comparator in circumstances where behaviour forms part of the factual matrix and there is a disability.

CRENNAN J:    Why should it make a difference that the disability is imputed and why should that make a difference to the application of Purvis’ Case?

MR MITCHELL:   The reason is the effect that it has where a person imputes the disability on the basis of behaviour and its claim subsequently discriminates.  If the same behaviour is attributed to the comparator, then, as night follows day, the imputation will arise and therefore the conduct.

KIEFEL J:   You say “imputation”, that involves behaviour, but here it is just an assumption that the complainant suffered from a psychological problem or disorder.  That does not necessarily mean that a conclusion is reached about the behaviour so that there is no content to the question about whether or not there has been less favourable treatment.  That is where you are going, I take it, saying that there is no content left of the question if you apply the Purvis comparator test?

MR MITCHELL:   Yes, your Honour, that is where I am going because it is comparing the apple with the apple rather than a relevant ‑ ‑ ‑

KIEFEL J:   Rather than talking in the abstract in this way, do you not have to go to how the majority dealt with whether or not there was in fact less favourable treatment and explain from there how the comparator test merges into that inquiry?  Is that not how you have to approach it?  Or why that shows that the comparator test should be other than Purvis?

MR MITCHELL:   Yes, your Honour, I will endeavour to do that.  The majority below leapt to adopting the comparator that was used in Purvis being a student exhibiting the same behaviour without giving consideration to whether or not it was appropriate in that particular case and the reasoning from that position is found at paragraph 65 of the majority decision.  Having discussed this Court’s decision in Purvis and finding that because there was behaviour, that that behaviour needed to be attributed to the comparator, the majority then said:

it now remains only to apply the decision in Purvis to the facts.

And adopted a PhD candidate with the same behaviour.  The difficulty with that analysis – and it is probably a useful opportunity to draw the Court’s attention to what is set out at application book page 30 in his Honour Justice Gray’s decision – was there was a particular memorandum that was written by the applicant’s supervisor, that was the second respondent, in

which the applicant set out his concerns about the wellbeing of the applicant and said that she had:

provided evidence of potentially serious psychological problems –

Continuing on to the second paragraph of that memorandum, the supervisor noted that:

I lack the formal training in psychology and counselling essential in supervision of such a student and am therefore unable to continue in the role of supervisor to Ms Zhang.

Now, in my submission, although this finding of fact was not made by the majority below, in my submission, that points to – at its highest, the applicant’s case is that the cause of the discriminatory conduct, as we characterise it, is the imputation of disability.  If that is right, if those particular facts had been found, although the inquiry was not undertaken, regardless of that fact, the applicant would still lose in this case and that demonstrates the fallacy in adopting the comparator from Purvis.  It ignores the real question in section 5, which is the cause of the conduct and whether it is less favourable, because the comparator really is a tool for arriving at the answers to the questions posed by section 5 and in applying the tool, regard has to be had to the object of the section and the mischief that it is seeking to address.

If it were put that there was a combination of behaviour and disability that caused the less favourable treatment, then, in my submission, that does not save the respondents because of the operation of section 10 which provides that discrimination only needs to be a cause of the less favourable treatment.  But in circumstances where the behaviour is attributed to the comparator, it follows that the only answer that can be arrived at is that the application will fail because the circumstances are relevantly the same, but they are not relevantly the same without the disability.  It is the behaviour that gives rise to the imputation and we would say, taking the applicant’s case at its highest, if these facts had been found, the imputation of the disability which in turn gave rise to the less favourable treatment and at that point when undertaking that inquiry, the behaviour is not causally relevant and should not be attributed to the comparator. 

Those are my submissions in respect of the first special leave question and I rely on the written submissions as to the second question.

CRENNAN J:   Thank you, Mr Mitchell.  Mr Hanks, we do not need to call on you.

In this matter the Court considers that the applicant’s prospects of success are insufficient to warrant a grant of special leave to this Court and, furthermore, that the interests of justice do not require such a grant.  Accordingly, special leave to appeal is refused with costs.

MR HANKS:   If the Court pleases.

MR MITCHELL:   May it please the Court.

AT 11.21 AM THE MATTER WAS CONCLUDED