Chi v Technical and Further Education Commission

JUDGMENT 1McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes. 2BARRETT JA: The appellant was, at material times, a student enrolled in an information technology course conducted by the respondent, Technical and Further Education Commission ("TAFE"), at the TAFE Sydney Institute, Ultimo. 3The appellant was born in Taiwan in 1957 and is of Asian ethnicity. He has lived in Australia since 1985. English is his second language. 4In October 2005, the appellant lodged a complaint against TAFE with the Anti-Discrimination Board. He alleged race and disability discrimination and victimisation while he was a student enrolled in the information technology course. 5Elements of the appellant's grievances (being elements concerning race) eventually became the subject of appeal proceedings in the Appeal Panel of the Administrative Decisions Tribunal. 6The appeal to the Appeal Panel followed the Administrative Decisions Tribunal's dismissal of a complaint by the appellant that TAFE had engaged in impermissible victimisation of him when its employee, Ms Siljanovic (the head teacher in the department of the Sydney Institute that conducted the relevant course), refused to allow him to enrol in certain course modules because of prior complaints made by him: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271. 7The appellant's appeal to the Appeal Panel was also dismissed: Chi v Technical and Further Education Commission [2010] NSWADTAP 67. 8The appellant appeals to this Court under s 119 of the Administrative Decisions Tribunal Act 1997. At the centre of his appeal is the proposition that the Appeal Panel misconstrued and failed to apply s 50(1)(c) of the Anti-Discrimination Act 1977. 9Section 50 of the Anti-Discrimination Act is in these terms: "(1) It is unlawful for a person ('the discriminator') to subject another person ('the person victimised') to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith." 10It is the appellant's contention that TAFE, through Ms Siljanovic, subjected him to a "detriment" (in the form of refusal to allow enrolment in the particular course modules) "on the ground that" the appellant had made an allegation or allegations of the kind described in s 50(1)(c). He says that the refusal to allow enrolment followed, in a relevantly causal way, upon his making a written complaint that contained one or more allegations that employees of TAFE had committed acts that "would amount to a contravention" of the Act. 11The Appeal Panel proceeded on the basis that all relevant allegations by the appellant were contained in a document dated 20 July 2004. The document was prepared by the appellant, sent by him to TAFE and received by TAFE on 2 August 2004. I shall refer to this document as the "August 2004 complaint". 12Counsel for TAFE took the Court to the appellant's amended points of claim filed in the Tribunal. It is there made plain that the case advanced under s 50(1)(c) was based wholly on the content of the August 2004 complaint. That, coupled with the approach the Tribunal took, as shown by its decision, means that there is no basis on which this Court should look beyond the August 2004 complaint and have regard to other allegations on which the appellant's counsel sought to place reliance. 13Among the questions for decision by the Appeal Panel was a question about the quality of the August 2004 complaint - whether the act or acts of TAFE alleged in that complaint "would amount to a contravention" of the Act. The Appeal Panel's negative answer to that question is at the centre of the appeal that the appellant has brought to this Court. 14This gives rise to an initial question whether the appeal is competent. Under s 119(1) of the Administrative Decisions Tribunal Act, a party to Appeal Panel proceedings has a right of appeal to the Supreme Court against any decision of the Appeal Panel in those proceedings, but only "on a question of law". 15The scope of a right of appeal framed in this way and the meaning of "on a question of law" were considered by this Court in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481. It is sufficient, for present purposes, to refer to two established principles there mentioned. First, the question whether facts found fall within a statutory provision properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7 per Mason J (Gibbs, Stephen, Murphy and Aickin JJ concurring). Second, this principle is qualified when the statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 512 per Kitto J. 16The question whether an act or acts "would amount to a contravention" of a statutory provision clearly goes beyond the ordinary meaning of words. It entails a judgment as to legal characterisation of the act or acts according to statutory criteria. It is therefore a question of law. 17It follows that, to the extent that the appellant seeks, on appeal to this Court, to challenge the Appeal Panel's conclusion that the acts of TAFE alleged by him would not amount to a contravention of the Anti-Discrimination Act, he brings his appeal "on a question of law" as allowed by s 119(1) of the Administrative Decisions Tribunal Act. I proceed, therefore, to address that question of law. 18The Appeal Panel decided that the appellant had failed to establish that the acts of TAFE (or, more precisely, employees of TAFE) alleged by him in the August 2004 complaint were of such a quality as to amount to a contravention of the Act. The Appeal Panel said that the August 2004 complaint "stops well short of alleging a contravention of the Act". In this respect, the Appeal Panel agreed with the conclusions of the Tribunal (at [78] and [93] of its decision) that the August 2004 complaint contained no allegation of racial discrimination or racial intolerance and made no reference to the appellant's race. There were references to "clash of personalities", rather than race, being an operative factor. 19The appellant contends that the Appeal Panel mischaracterised the quality of the allegations in the August 2004 complaint and, in that respect, fell into the same error of law as the Tribunal at first instance. 20The focus of the appeal is upon the question whether the appellant did a thing mentioned in s 50(1)(c): did he, in the August 2004 complaint, make an allegation that TAFE or someone else had committed an act that, objectively characterised, "would amount to a contravention of this Act"? 21The only species of contravention said to be relevant is that in s 17(2): "It is unlawful for an educational authority to discriminate against a student on the ground of race: (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 subjecting the student to any other detriment." 22Section 4(1) says: "'race' includes colour, nationality, descent and ethnic, ethno-religious or national origin." 23There is no dispute that, in the August 2004 complaint, the appellant made allegations of acts by employees of TAFE. TAFE accepted before the Tribunal that the alleged acts of the employees are to be treated as alleged acts of TAFE. The task is to identify each act of TAFE alleged by the appellant in the August 2004 complaint and to decide whether that act, objectively characterised, had the following characteristics: first, it constituted discrimination against the appellant; second, the discrimination was by denying or limiting the appellant's access to a benefit provided by TAFE; and, third, the discrimination was on the ground of race. 24The subject of the August 2004 complaint is identified as "Complaint of unfair mark of my e-commerce subject". The August 2004 complaint begins: "I have suffered a long period of discrimination and harassment from my e-commerce teacher Ms Debra McHugh and there was no solution which I could get from my head teacher Ms Di Siljanovic." 25The August 2004 complaint goes on to make the following points concerning the appellant's treatment by TAFE: