ERG (on behalf of ABC) v St Catherine's School Sydney; ERG v St Catherine's School Sydney

NCAT Administrative and Equal Opportunity|2021-04-07

The applicant's case

The applicant alleges that: 1. His daughter is white, of British/Australian heritage. 2. She was questioned by the Deputy Headmistress and another staff member in relation to an alleged incidence of marijuana use. She denied the allegations. The teachers allegedly told his daughter that if she admitted the allegations she would receive a lesser punishment; repeatedly questioned her; said "it will be worse if we have to call you back in" and "if we have to call the police you will be in real trouble". 3. Another student who is of Aboriginal descent and was involved in the incident did not receive the same level of questioning. This student had been found with drugs in her possession previously. He suspects that the other students involved received the same suspension, although he alleges that they all had done more serious things such as buying and selling drugs on school grounds. 4. His daughter was singled out based on her race to avoid any potential criticism of the school for targeting a student of Aboriginal descent. The school assumed she was smoking marijuana because she was friends with the other girl. 5. Subsequently the respondent commenced Local Court proceedings to recover unpaid fees, delayed his daughter's enrolment and provided unjustified information to an alternative school about his daughter. This was done because of his complaint and constituted victimisation.

Consideration

The Tribunal must determine whether it would be fair and just for leave to be granted. Whether either of the complaints would have any prospect of success is relevant to this question. In order to succeed the applicant would have to establish: 1. That the respondent, as an educational authority, treated ERG's child less favourably than a student of another race would have been treated in the same or not materially different circumstances between 17 June and 21 September 2020, 2. on the ground of race, 3. by subjecting her to a detriment. In assessing prospects of success, I must take the complainant's evidence at its highest.
In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, concerning a student who had been suspended and later expelled for violent behaviour associated with his disability, the student claimed discrimination under s 5(1) of the Disability Discrimination Act 1992 (Cth). Justices Gummow, Hayne and Hayden (who were part of the majority) described the process for determining if there was less favourable treatment on the prohibited ground (at [213]): "Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability 'in circumstances that are the same or are not materially different'. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability."
This establishes a two-stage process to determining whether direct discrimination has occurred - first establishing whether the treatment given to ABC was less favourable than it was, or would have been, but for her race; and secondly if that is established, then determining whether that treatment was because of her race. (See Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division [2018] NSWCATAD 210 at [40-43] and Masters v Reserve Hotels Pty Ltd atf the NBF Trust [2020] NSWCATAD 115 at [118].)
The importance of taking the correct circumstances into account was emphasised by Gleeson CJ in Purvis at [223 - 224]: "In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
The circumstances are all of the objective features which surround the actual or intended treatment of the complainant by the respondent.

Less favourable treatment

ERG claims that his daughter was treated less favourably by the school than a student of another race was treated, or would have been treated, in the same or materially the same circumstances. As a comparator, he points to another student of Aboriginal descent. This student was also interviewed and was found to have possessed marijuana and was also suspended for 7 days. There was no evidence of the manner in which she was interviewed by the school, however so there is no evidence of whether the manner of interview of ERG's daughter constituted less favourable treatment than another student actually received.
The two students received the same punishment. Despite this, ERG argues that this also amounts to less favourable treatment for his child because his child did not smoke marijuana. The school should have therefore given her a less severe penalty than the comparator, who allegedly had marijuana in her possession and had a "track record".
ERG also has an alternative argument, that his daughter was treated less favourably than she would have been treated, had she not had a friend of Aboriginal descent. He alleges his child was "singled out"' because of her friendship with the Aboriginal student and the school concluded that she had been smoking marijuana because of her association with that student. This argument, however, seems to be in direct conflict with the proposition that she would have been treated more favourably had she been of Aboriginal descent.
The available evidence of the circumstances includes file notes made by the school including: 1. A redacted file note dated 18 June 2020 which states: [ABC] was with [student name] on Saturday 13 June. She admitted that she and [student name] had marijuana. She did not say where it came from..." 1. A file note dated 19 June 2020 of a meeting between ERG, Dr Julie Townsend, and Ms Clancy where it is recorded that Ms Clancy and Dr Townsend "discussed the situation with him about [ABC] smoking marijuana" and that they told him that when Ms Clancy interviewed his daughter, "she told her that she did smoke marijuana". 2. A letter dated 19 June 2020 from the school to ERG stating that ABC has been suspended for 7 days as a result of a serious breach of school rules. "We trust that this will be an opportunity for ABC to reflect on the choices she makes and the implications of those choices."
I note that ERG disputes the veracity of the file notes and believes the school has fabricated them to cover up its discriminatory conduct. He does not dispute, however, that the school interviewed his daughter, claimed that she admitted the conduct and acted on the basis that she had smoked marijuana. The available evidence also favours that interpretation. Smoking marijuana breached the school rules, which provided that the possession use or misuse of illegal drugs at any time was a serious misdemeanour that may result in suspension or expulsion.
Taking the complainant's evidence at its highest, I have assumed that ABC did not smoke marijuana and denied doing so when asked.
But even if I assume those facts to be true, ERG must show that there are some prospects of proving that her treatment was less favourable than the treatment that the school did give, or would have given, to a student who was not of that race, in the same or not materially different circumstances, as the ADA requires.
In relation to the manner of the interview, he has not shown that his daughter was treated less favourably than a student of another race was treated or would have been treated who also had not smoked marijuana and had not admitted it.
In relation to the punishment, ERG asks the Tribunal to infer that because an Aboriginal student who he says had a "track record" and who possessed marijuana received the same punishment as his daughter, his daughter's punishment represented less favourable treatment than a student of another race would have received. This is not a necessary or logical inference from the facts. There may be a possibility that ERG could establish this, but it is not at all evident from the material before the Tribunal.
I conclude for the reasons stated above that ERG has remote, but possible prospects of establishing that his daughter experienced less favourable treatment than a person of a different race would have experienced in the same or not materially different circumstances.

Causation

In addition to establishing less favourable treatment, if leave were granted, ERG would also have to establish that this treatment was because of his daughter's race ("causation"). He submits that because his daughter did not smoke marijuana, there is no other reason other than his daughter's race to explain the disparity of punishment. He alleges that the school wished to make an example by punishing the students involved but did not wish to make an example of the Aboriginal student because of her race. Had she not been white and Anglo-Australian, his daughter would have received a lesser punishment.
The test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the "true basis" (per Gleeson CJ in Purvis at [102]), the "genuine basis" (Gleeson CJ at [102]), or the "real reason" (McHugh and Kirby JJ at [144]) for that treatment. See also Nicholls and Nicholls v Director General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
As there is no direct evidence that the school interviewed his daughter in a harsh manner or imposed a 7 day suspension because she was white and Anglo-Australian, any causal link between her race and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
ERG would ask the Tribunal to infer that his daughter's race was the reason for the actions taken by the school because: 1. The alleged actions of the other student were more serious than his daughter's alleged actions 2. The school wished to deal with students using drugs but avoid any criticism for targeting an Aboriginal student, therefore they victimised a non-Aboriginal student 3. The school assumed because his daughter was a friend of the Aboriginal student, that she had smoked marijuana 4. There is no other possible reason for the treatment.
The respondent submits that there are other plausible reasons for the treatment, in particular: 1. It was reasonable and necessary for it to investigate the matter and allow the students to provide their version of events 2. The action taken was based on the nature of the act and the need for discipline 3. There is no persuasive information to support an inference that race was the cause 4. The discipline imposed was equal and took into account the nature of the conduct.
In my view there are no facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of ERG's daughter's race. ERG could not point to any evidence that the school held the views in (2) and (3) above. There are other plausible reasons for the conduct. In my view, it is not probable that ERG could establish a causative connection between the conduct of the respondent and his daughter's race.
As there is little or no prospect that ERG could establish less favourable treatment or causation, in my view the complaint of race discrimination lacks substance.

Other considerations

ERG also submitted that his complaint should be allowed to proceed so that he can obtain access to other evidence from the school and adduce evidence from his other claims against the school (defamation and personal injury claims). This includes affidavit evidence and a medico-legal report. He submitted that he had been denied sufficient time to bring relevant matters to light.
The respondent submitted that the applicant had sufficient time to raise matters before the Anti-Discrimination Board and he provided abundant material. The complaint was speculative and the applicant wished to issue summons to search for additional evidence so he could expand the scope of his complaint.
The purpose of granting leave to continue a complaint in the Tribunal under the ADA is not to allow the complainant to search for evidence which may provide grounds for his complaint. The grounds, alleged facts and/or basis for logical inferences must be present, even if the evidence is scanty at the complaint stage. Here the complaint relies on weak inferences and allegations.
ERG stated that he had commenced personal injury proceedings against the school in respect of psychological injury occasioned to his daughter by this and other alleged conduct. This is an alternative remedy which is being pursued in relation to the complaint and that is a consideration relevant to granting leave under s 92(1)(a)(iv).
Overall, taking the above matters into account, I am not satisfied that it would be fair or just to grant leave for proceedings based on the complaint of race discrimination to be brought in the Tribunal.

Victimisation

The applicant also alleges that the respondent has breached s 50 of the ADA by taking action which subjected himself and his daughter to detriment because they had alleged that the school had breached the ADA. The applicant alleges that he was victimised by the school commencing legal proceedings against him to recover unpaid school fees, and that his daughter was victimised by the school refusing to provide references to another school, raising his family law proceedings as an issue and delaying his child's enrolment at the other school.
The available evidence drawn from the documents before the Anti-Discrimination Board shows that on 22 June 2020 ERG stated in a letter to the school that it appeared to him that the disciplinary action involved racial discrimination under the ADA.
ERG subsequently advised the school that he would be withdrawing his daughter as a student. The school wrote to ERG on 1 July 2020 stating that he had not provided sufficient notice of his daughter's withdrawal and would be charged a withdrawal fee of one term's tuition fees. ERG responded in writing to the school on the same day that he would not be paying the fee and that the school was "welcome to pursue me in court".
On 2 July 2020 the Headmistress wrote to ERG informing him that they had received a student background information form from his daughter's new school and that they had declined to comment and advised the school to contact him for all information. On the same day ERG replied in writing: "I note your reluctance to provide any information to [name of school] and can only draw the conclusion that you recognise any written comments on the alleged incident that are passed on to a third party would be defamatory. You have implied that you are focussed on ABC's best interests and yet your refusal to forward the requested information to [name of school] has delayed [name]'s enrolment until next term which will result in her missing additional school time and will undoubtedly impact her academically." He then listed other potential schools he would be approaching and wrote: "It appears I do not need to caution you in making any further defamatory comments as part of the enrolment process with the above schools…"
He repeated that he would not pay the school withdrawal fee. He then gave the school an opportunity to resolve the matter which included his daughter being allowed to enrol with no negative effect.
On 13 July 2020 the school replied noting that he was applying to other schools and stated: "The school will support your applications." On 23 July ERG emailed the Headmistress stating that the school had not passed on the information required by his daughter's new school. On 27 July 2020 ERG sent the school a "Concerns Notice" under the Defamation Act 2005 regarding alleged defamation of his daughter and himself.
The legal proceedings against ERG and his ex-wife were filed on 10 November 2020 according to the court's stamp on the statement of claim. The claim made was that ERG's withdrawal of his daughter breached the agreement signed when she was enrolled at the school, which specified one term's notice in writing was required before withdrawing a student, otherwise a full term's fees would be charged in lieu of notice.
On 8 December 2020 ERG wrote to the Anti-Discrimination Board stating: "It would appear that St Catherine's have reacted directly to your correspondence last month and filed this statement of claim for maximum psychological impact a couple of weeks before Christmas."
The applicant agreed that the respondent was entitled to commence legal proceedings but submitted that the school timed the commencement of the legal process to cause damage and distress.
The respondent submitted that the applicant has failed to show any detriment, or if he has, that no causal link between the detriment and any of the grounds in s 50(1)(a) to (d). The complaint is speculative and there is nothing exceptional about the school's use of legal process to recover a debt.

Consideration

The word "detriment" in the context of s 50(1) of the Act is "loss, damage or injury" that is "real and not trivial" (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146).
The alleged conduct, if established, could constitute detriment to ERG and/or his daughter. Causation must also be established in respect of one of more of the above allegations, that one of the "real", "genuine" or "true" reasons they were subjected to that detriment was because ERG and/or his daughter did one of the things listed in s 50(1) of the Act: Nicholls at [28].
It is evident that ERG alleged in correspondence to the school that it had discriminated against his daughter as early as 22 June 2020. ERG lodged his complaint on his daughter's behalf with the Board on 23 September 2020. It was accepted on 23 November 2020 (after the legal proceedings were filed). He also told the school that his daughter had made allegations to him of certain conduct by teachers which could have breached the ADA. Again there is no direct evidence that the school's alleged conduct towards his daughter or its commencement of legal proceedings was because of the complaints and allegations made by ERG or his daughter. ERG asks the Tribunal to infer causation, but there is no real evidence to make such an inference. In fact there are other possible causes. In particular: 1. ERG made it clear in correspondence that he refused to pay the fees, did not agree that the contractual obligation applied to him, and told the school it was "welcome" to commence court proceedings. The school's correspondence stated its view that it was entitled to the fees. 2. ERG had already accused teachers at the school of making defamatory comments about his daughter in his letter of 22 June 2020 and notified them on 29 June 2020 that he would be issuing a Concerns notice under the Defamation Act. In those circumstances it is not improbable that the school would not wish to disclose information about his daughter to a third party. 3. His letter of 2 July 2020 to the school blamed them for not forwarding information but on the other hand said: "It appears I do not need to caution you in making any further defamatory comments as part of the enrolment process with the above schools". This was an ambivalent message which cast further doubt on how he wished the school to behave.
In these circumstances I am not satisfied that there is any prospect of the applicant substantiating his claim of victimisation.

Conclusion

Taking the above matters into consideration, I am of the view that the complaint is lacking in substance and the conduct alleged, if proven, would not disclose the contravention of a provision of the ADA. Moreover another potentially more appropriate remedy against the school is being sought by ERG, through personal injury proceedings. I therefore conclude that it would not be fair or just to grant leave to proceed with either complaint.

Orders 1. Leave to proceed with the complaint of race discrimination is refused. 2. Leave to proceed with the complaint of victimisation is refused.

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: 01 June 2021

The history of the proceedings

The leave application was heard on 7 April 2021. The decision was reserved. On 10 April 2021 the applicant wrote to the Tribunal asking for additional material to be brought to my attention. The applicant did not provide a copy of his correspondence to the respondent. Due to an error, I was not made aware of the fact that the applicant was seeking to adduce new material until 23 April.
The applicant was informed if he wished the Member to consider new material at this stage he should make a written request giving reasons by 30 April 2021 and copy the respondent into his correspondence and include copies of the material. The Member would then consider the request.
The applicant submitted that he wished to adduce new material because: 1. the evidence was not available at the time of the leave hearing 2. the evidence has a material impact on the application for leave 3. it is fair and just to consider the material as part of the decision 4. the evidence supports the submission that the complaint will succeed at a full hearing 5. it demonstrates a 'pattern' in relation to the allegations of victimisation outlined in the original complaint.
The new material related to: 1. A letter served on ERG on 9 April 2021 from the respondent's solicitors relating to the Local Court proceedings. He claimed that it should not have been served on him as he was legally represented in those proceedings. 2. A further email sent to him and his lawyer on 12 April 2021. 3. The respondent's failure to serve the Statement of Claim in the Local Court proceedings on his ex-wife, who is the second defendant in those proceedings. 4. Evidence of an additional alleged incident involving false imprisonment of which he said he was not aware when he filed the original complaint with the Anti-Discrimination Board. It is alleged that the respondent directed the applicant's daughter to remain at school after school hours on 13 September 2019 until she was collected by her maternal grandmother, against her wishes.
None of these matters were included in the complaint before the President of the Anti-Discrimination Board.
In view of this request I made the following directions: 1. The applicant should provide a copy of the material (if he has not already done so) to the respondent by 6 May 2020. 2. The respondent should file written submissions regarding whether the Tribunal should consider the new material and if the Tribunal does consider it, any submissions on the substance of the issues raised by the material, no later than 15 May 2020. 3. The Tribunal will proceed to issue its decision on the question of leave after 15 May 2020 without further hearing unless either party advises a hearing is required.
The respondent filed submissions in reply on 12 May 2021. It submitted that the new material was not relevant to the discrimination complaint against it, Its failure to serve ERG's ex-wife was due to not having her current address and the applicant had declined to provide it. It complained that ERG was litigating the facts of this complaint in other proceedings.
The respondent did not seek a further hearing on whether the material should be admitted. ERG requested a further hearing of these issues. I considered whether a hearing was required before determining whether to admit the material
Section 50(2)-(4) of the Civil and Administrative Tribunal Act 2013 provides: '(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules."
I am satisfied that a further hearing is not required as both parties have provided detailed written submissions concerning the issue of whether the new material should be admitted and I have had the opportunity to view the material.
I have determined that the new material should not be admitted or considered as part of the leave application. The incidents complained of were not part of the original complaint. In order to consider them as instances of victimisation, the complaint would have to be amended. When a complaint which has been declined by the President is the subject of proceedings before the Tribunal, however, the complaint may only be amended after leave has been granted not before. Amendment is dealt with by s 103 of the ADA which provides: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit."
Before leave has been granted under s.96(1) there are no proceedings before the Tribunal and therefore s 103 cannot be applied to amend the complaint as it is (Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34). Accordingly, I have no power under s.103 to amend the complaint at this stage and in determining whether to grant leave I will be considering the complaint as it was referred by the President.
The new material cannot be considered as evidence relevant to the existing victimisation complaint as it either post dates the complaint or is an additional instance of alleged victimisation or discrimination which was not part of the original complaint.

The issues

A person may make a complaint to the President on their own behalf or on behalf of another alleging that a person(s) has contravened a provision of the ADA (s 87A(1)(a)(i)).
Section 92 provides that the President may decline the complaint if he is satisfied of any of the matters in that section.
Where the President has declined a complaint under s 92 of the ADA the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]). The evidence of the applicant will be taken to be true at this stage of proceedings for the purpose of determining whether the applicant could succeed in his complaint (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73.

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