Court v University of Wollongong

Principles for granting leave - whether "fair and just"

1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.
2. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

The alleged conduct

1. The alleged unlawful conduct is failing to provide Ms Court with a support person for between 30 minutes and two hours a week to access a computer on her behalf. That is the sole allegation that Ms Court made.
2. The background to this allegation is that prior to her enrolment the University contacted Ms Court by phone and wrote to her to explain the enrolment process. Ms Court was also advised of the procedure to access support from the University's Disability Services. A meeting was scheduled with Disability Services on the same day as Ms Court enrolled so that the University could understand the nature of her disability and consider providing support. The meeting was rescheduled to 23 February 2015. At that meeting Ms Court provided a list of what she expected the University to provide, including a support person for 30 minutes a week. The University declined to provide that support until Ms Court provided further documentation as to the nature of her disability.
3. Initially Ms Court provided a medical certificate from a general practitioner, Dr Moe, stating that she "has a medical condition" that affects her "concentration, motivation and ability to complete studies" and listed a range of ways in which her medical condition could be accommodated. On 3 March 2015 the University wrote to Ms Court advising that the medical certificate was not sufficient and saying that: In order to assist you, Disability Services requires that you complete the Reasonable Adjustment consultation process so that suitable advice and recommendations can be confirmed, put in place and communicated to all relevant parties. . . . You will need to provide as soon as possible supporting medical documentation in line with the guidelines . . . I also request that you sign on both sides, attached consent to obtain and release information form for me . . . that way I can at least have a way to move more quickly, by speaking with your GP and other agencies as to how best to support you . . .
4. Ms Court did not consent to the University contacting her counsellors or doctors. On 10 March 2013 Ms Court wrote "there is no extra documentation being filed with disability . . ."
5. In accordance with the University's Student Health Assessment and Leave Policy, the University wrote to Ms Court on 13 March 2015 advising her that a report had been made raising concerns about her behaviour. In that letter the writer expressed the view that "it is possible a health condition could be affecting your behaviour."
6. Ms Court was asked to attend a meeting of the Student Health Advisory Panel (SHAP) on 30 March 2015 but that meeting was rescheduled to 2 April 2015. Following that meeting the University wrote to Ms Court advising her that the medical report she provided was over two years old and was insufficient to enable the University to provide any reasonable adjustment. I assume that report was the report from Dr Allen referred to in Anthony Weaver's report but Dr Allen's report was not in evidence.
7. A decision was made to place Ms Court on an Involuntary Leave of Absence. SHAP said that it would consider re-enrolment if Ms Court provided an assessment and gave permission to talk to her specialist "to seek and share information so the best possible outcome can be sought for both you and the University." Ms Court refused to provide that consent saying, "this discussion is now over."
8. Ms Court's clinical psychologist, Mr Weaver, wrote a short report on 31 March 2015 in which he said that he had known Ms Court for almost 12 years and had provided counselling for her and her family during that time. He emphasised that he was treating her for a psychological condition and she was not a mental health patient.
9. On 10 April 2015 the University wrote to Ms Court requesting "evidence that you have attended a clinical psychologist or neuropsychologist and been assessed." The information from the practitioner must include: 1. information explaining your disability including symptoms and impact; 2. information relevant to your ability to participate in a University environment; 3. recommended strategies that will support you in satisfactorily progressing your studies; and 4. your permission for the University's Disability Services to contact the clinical psychologist or neuropsychologist to seek and share information so that the best possible outcome can be sought for both you and the University.
10. On 13 April 2015 Ms Court provided the University with a letter dated 20 April 2015 from Anthony Weaver. That letter advised that Mr Weaver had counselled Ms Court over her increasing difficulties using technology in everyday life but especially whilst trying to meet academic requirements. Mr Weaver expressed the view that by denying Ms Court the support she requested, the University has prevented her successful enrolment, classroom allocation, participation in groups, completing assignments and locating exams and classrooms.
11. The University requested Ms Court's permission to contact Mr Weaver to discuss her needs. She agreed to the University communicating with him but only in writing or at a mediation organised by the Anti-Discrimination Board. Solicitors acting for the University telephoned Mr Weaver because of concerns that the report was not genuine as it had been written on out-of-date letter head. Mr Weaver assured them that he had written the report and that he was using up old stationery.
12. The University considers Mr Weaver's report to be inadequate because it was not received until April 2015 and was reliant on a diagnosis given by Dr Allen, a neuropsychologist, in 2011. The University said that it was aware that Ms Court had attended a clinic in 2011 and that Dr Allen had co-signed a report relating to Ms Court however, in their view, that report is now out of date. Ms Court says that Dr Allen's report was less than two years old when she first enrolled.

Merits of complaint

1. In order to substantiate the complaint, Ms Court would have to prove that she has a disability as defined in the Anti-Discrimination Act. She says that in 2011 she was diagnosed with "impaired working memory" by a neuropsychologist, Dr Allen. If that is the diagnosis, it is likely that it would meet the description of a "disability" in s 4 which includes "partial loss of a person's bodily or mental functions . . .".
2. To substantiate a complaint of disability discrimination Ms Court would also have to prove that the University breached s 49L(2) of the Anti-Discrimination Act: (2) It unlawful for an educational authority to discriminate against a student on the ground of disability: (a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, (b) by expelling him or her, or (c) by subjecting him or her to any other detriment. . . .
3. Sub-section 49L(4) and (5) set out some exceptions to s 49L(2): (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.
4. Ms Court did not articulate the legal basis of her complaint. There is no positive duty on the University under the Anti-Discrimination Act to accommodate any needs Ms Court may have as a result of a disability. However, it is arguable that providing reasonable support and adjustment for students with disabilities is a benefit provided by the University and/or that refusing such support and adjustment is a detriment.
5. Section 49B defines discrimination on the ground of disability. Discrimination may be "direct" as defined in s 49B(1)(a) or "indirect" as defined in s 49B(1)(b): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
6. If the complaint proceeded to a hearing, the Tribunal would have to be satisfied that the University discriminated against Ms Court on the ground of disability either "directly" or "indirectly".
7. The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to Ms Court must be compared to the treatment that was or would have been afforded to a real or hypothetical person without her disability in the same circumstances or in circumstances which are not materially different. In addition, disability must be at least one of the reasons for the treatment: Anti-Discrimination Act, s 4A.
8. There is no reference in the President's Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person without Ms Court's disability and identify the circumstances to be taken into account when comparing how the University treated her and how it would have treated such a hypothetical person.
9. Ms Court may have difficult providing direct disability discrimination as defined in s 49B(1) because she has not been treated differently from other people without a disability. If she successfully argues that the comparison is between people with her disability and people with other kinds of disability, her case may be stronger.
10. The University's response to a claim of direct disability discrimination would be that all students with a disability who request support or adjustment must comply with the same process. That process includes providing medical evidence explaining the disability, its symptoms and recommending strategies that will support the student in their studies. Depending on the content of any report provided, the University may also seek permission to communicate directly with the medical practitioner.
11. Ms Court maintains that she has complied with the process by providing Mr Weaver's report which refers to the report of Dr Allen. Ms Court acknowledges that she has a "very rare disability" which has the unusual consequence that she cannot use a computer or any other electrical gadget. The University is not satisfied that a 2011 report diagnosing "impaired working memory" necessarily means that Ms Court should be assigned a person for a period each week to enable her to access a computer. They seek up to date evidence of the nature of Ms Court's disability and the impact it has on her.
12. In my view a Tribunal hearing this case would be unlikely to find that the University has discriminated against Ms Court on the ground of her disability. The reason for requesting an up-to-date medical report and access to Mr Weaver is so that the University can better understand the nature of Ms Court's disability and is in accordance with the policy it applies to other students with a disability. There is no differential treatment on the ground of Ms Court's disability nor is her disability a reason for the University's decision.
13. Alternatively Ms Court may seek to rely on indirect discrimination as defined in s 49B(1)(b). In order to substantiate a complaint of "indirect" discrimination on the ground of disability, Ms Court would have to prove that: 1. the University has required her to comply with a requirement or condition; 2. she cannot comply or is not able to comply with that requirement or condition; 3. a substantially higher proportion of students without her disability can comply with that requirement or condition; and 4. the requirement or condition is not reasonable in all the circumstances.
14. It is arguable that the University has imposed a requirement or condition on all students that in order to obtain support or adjustment they need to provide an up to date medical assessment and permission to discuss that assessment with the practitioner if necessary. Ms Court would then have to establish that she is unable to comply with the requirement. Ms Court maintains that she has complied with all the requirements the University has imposed on her. The University disagrees. They have requested a more recent medical assessment and the opportunity to consult with her medical practitioners. Ms Court refuses to comply with that request. There is no evidence that she cannot comply or is not able to comply. A complaint of indirect discrimination is likely to fail on that basis.
15. Ms Court may also find it difficult to prove that a substantially higher proportion of students without her disability could comply with the requirement compared with people with her disability.
16. The final element of indirect discrimination that Ms Court would have to prove is that the requirement is not reasonable having regard to the circumstances of the case. The relevant factors when considering reasonableness were summarised by the Tribunal in Wong v Office of the Board of Studies NSW (No 4) (03 July 2012)[2012] NSWADT 128: Accordingly, in determining a condition or requirement was 'not reasonable' the Tribunal must have regard to the nature and extent of the discriminatory effect of the requirement and consider this in the light of: (a) the reasons for the requirement, including any commercial (or practical) considerations; (b) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; (c) whether there is a less discriminatory option, which accommodates of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory; and, (d) any other relevant circumstances.
17. In my view, a Tribunal hearing this case would find that the requirement is reasonable in all the circumstances. As is the case in relation to direct discrimination, Ms Court acknowledges that she has a "very rare disability" which has the unusual consequence that she cannot use a computer or any other electrical gadget. The reason for requesting an up-to-date medical report and access to Mr Weaver is so that the University can better understand the nature of Ms Court's disability and is in accordance with the policy it applies to other students with a disability.

Conclusion

1. While the Tribunal should adopt a 'cautious approach', especially in circumstances where the evidence has not been tested, the onus is on Ms Court to establish that leave should be granted. The question for the Tribunal in this case is whether all or part of the complaint is lacking in substance so that it would not be fair or just for it to proceed.
2. Ms Court relies on a 2011 report providing a diagnosis of "impaired working memory" to insist that she requires the support of a person for a period each week to access a computer on her behalf. The University wishes to understand that diagnosis and whether the supports which Ms Court requests are the most appropriate and effective way to accommodate her needs. Ms Court has consistently refused to provide an up to date report or to allow the University to communicate with her treating medical professionals. Ms Court's refusal to co-operate and the fact that the complaint itself lacks substance means that it is not fair and just in all the circumstances for the complaint to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2015