FLM v State of New South Wales - [2022] NSWCATAD 36 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

FLM v State of New South Wales

[2022] NSWCATAD 36

NCAT Administrative and Equal Opportunity|2020-11-27

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-11-27

Catchwords

(1989) 20 FCR 217 McBride v Victoria (No 1) [2003] FMCA 285 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62
(2003) 202 ALR 133 Re Rummery and Federal Privacy Commissioner [2004] AATA 1221

Source

Original judgment source is linked above.

Catchwords

(1989) 20 FCR 217 McBride v Victoria (No 1) [2003] FMCA 285 Purvis v New South Wales (Department of Education and Training) [2003] HCA 62(2003) 202 ALR 133 Re Rummery and Federal Privacy Commissioner [2004] AATA 1221

Judgment (12 paragraphs)

[1]

Background

FLN attended Campsie Public School (the School) between 2010 and 2017. Prior to starting kindergarten in 2010, FLN was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). On 27 May 2019, FLN's mother FLM (the Applicant) lodged a complaint of disability discrimination with the Anti-Discrimination Board (now Anti-Discrimination NSW) against the Department of Education (the Respondent) on behalf of FLN, pursuant to s 87A(1)(b) of the Anti-Discrimination Act 1977 (NSW) (the Act).
The President of Anti-Discrimination NSW summarised the Applicant's claim to include: 1. FLN did not receive assistance from a Student Learning Support Officer (SLSO) from 2015 to 2017, despite the School having received funding for an SLSO to assist FLN in class; 2. The School failed FLN's education because he did not have the assistance he required. His education began to lapse in Year 4, when he was isolated in an Enrichment class (4EN) for the whole year without assistance. He had no assistance in Year 5. He was not provided with assistance from the School until the final two months of year 6; 3. Despite the School's awareness of FLN's disability, he was constantly suspended for not complying with work or rules; 4. The School failed in its duty of care by allowing FLN to attend a zone athletics carnival without an SLSO, where he was assaulted by a principal from another school; 5. The School excluded FLN from sport and other physical exercise, despite medical advice that stated FLN was medically obese and would benefit from sport; 6. The School's treatment of FLN resulted in his anxiety "being extreme"; and 7. The School failed to take into consideration the impact of changes to his medication and "events in 2014", of which it was aware.

[2]

Legal principles

Section 4 of the Act defines the term 'disability' as follows: "disability" means - (a) Total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) The presence in a person's body of organisms causing or capable of causing disease or illness, or (c) The malfunction, malformation or disfigurement of a part of a person's body, or (d) A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) A disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
The Respondent accepted that during the relevant period, FLN was suffering from a "disability" as defined by section 4 of the Act, and that it is the relevant "educational authority" for the purposes of the Applicant's complaint, as that term is defined by section 4 of the Act.
Section 49B provides that: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator - … (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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability - … (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
Section 49L provides that: … (2) It is 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, or (b) by expelling him or her, or (c) by subjecting him or her to any other detriment. … (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.
Section 4A of the Act provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
What amounts to discrimination for the purposes of section 49L is to be derived in the first instance from the relevant definition provided by section 49B: Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ. That is because section 49L makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of section 49B: Waters at 392. In other words, a finding of discriminatory conduct under section 49B is not unlawful unless that conduct also contravenes section 49L.

[4]

The documentary evidence and failures to produce

Central to the Applicant's allegations against the Respondent is the factual dispute that FLN was not provided with SLSO support, despite the School documenting this support as being required in relation to his learning support and behaviour management, as a consequence of his disability.
The Respondent's position and its defence to the Applicant's claims of discrimination is that FLN was provided with an SLSO throughout 2015, 2016 and 2017. To ensure that the documentation relevant to the Applicant's claims which was held by the School and the Respondent were provided to the Applicant and the Tribunal, on 11 August 2020 Principal Member Britton made the following order: State of NSW (Department of Education) is to give to the Tribunal and FLM a copy of all documents held by the School and/or the Department relating to FLN (paginated) for the period January 2014 to December 2017 inclusive, on or before 25 August 2020.
On 25 August 2020, the Respondent produced 59 pages of documents to both the Tribunal and the Applicant. On the first day of the hearing on 26 November 2020 the Applicant complained that the records produced by the Respondent were deficient, and that a further 10 pages had been sent to her electronically in the week prior to the hearing which she had not been able to access.
On the first day of the hearing on 26 November 2020 it became apparent to the Tribunal that the Respondent had not complied with the order for production made on 11 August 2020, because basic school records which the Tribunal expected to have been in the Respondent's possession or control, such as FLN's school reports, had not been produced, and there were additional documents being served late on the Applicant.
The Tribunal also raised its concern that the Respondent had not filed any witness statements and was instead making assertions of fact from the Bar table, and submitting factual inferences should be drawn which were not clear or apparent from the content of the documents produced. Had the matter proceeded, the Tribunal would have had very little evidence from the Respondent to support its defence of the Applicant's allegations. Despite the unsatisfactory imposition on the Applicant and Tribunal's time this would entail, in fairness, the Tribunal decided to allow the Respondent some additional time to obtain witness statements to explain the documents provided to the Tribunal and otherwise support its defence to the Applicant's claims.
At the commencement of the second day of the hearing on 27 November 2020, the Respondent produced additional documents which it had omitted from the bundle produced on 25 August 2020. The Respondent's counsel explained that the solicitor responsible for obtaining, collating and producing the Respondent's documents had omitted some documents that ought to have been produced, and had misconstrued the terms of the order, producing only those documents relating to the School's provision of an SLSO to FLN between 2015 and 2017, rather than all documents relating to FLN from January 2014 to December 2017. The Respondent's counsel also produced correspondence between the Respondent and its legal representatives, over which privilege was waived, which identified that searches of the School's record system had not unearthed any further documents for the period January 2014 to December 2017, and that certain documents could no longer be located because the SLSO coordinator had stored them on a computer which was "written off". The additional documents provided to the Tribunal were marked for identification. The Respondent's counsel informed the Tribunal, on instructions, that the Respondent had no further documents in its possession or control to produce, and its "avenues of inquiry are now exhausted", but that it wished to provide the Tribunal with witness evidence from Ms Sarah Jones, the School's principal, to which it would annexe the further relevant material produced.
The proceedings were adjourned to the agreed date of 18 December 2020, and the following orders were made: Respondent is to file and serve any statements or other evidence on which they rely by 11 December. Applicant is to file and serve any additional evidence on which she relies by 11 December.
Despite indicating to the Tribunal that Ms Jones would be available on 18 December 2020, shortly after the adjournment, the Respondent notified the Tribunal that Ms Jones was not available on the agreed date, and so the hearing was further adjourned to a date following the commencement of the school year in 2021. Ms Jones' witness statement was provided to the Tribunal and the Applicant on 11 December 2020.
Ms Jones gave evidence during the third day of hearing on 10 February 2021, during which she conceded various shortcomings in the School's record keeping system and it became apparent from her oral evidence that there were still further documents in the Respondent's possession or control that responded to the order for production of 8 August 2020, which had not been provided to the Applicant or the Tribunal. The Tribunal made the following orders on 11 February 2021: The Department is directed to provide the Tribunal and FLM a copy of all documents held by the School and Department relating to FLN, for the period January 2014 to December 2017 inclusive, on or before 24 February 2021. If the Department is unable to access archived documents and emails, an affidavit is to be provided to the Tribunal by the individual conducting the searches to outline what efforts have been made on or by 24 February 2021.
On 25 February 2021 the Respondent's solicitors provided the Tribunal by post with an additional 421 pages of records from the Respondent relating to FLN for the period January 2014 to December 2017. These documents included a large number of documents not previously provided to the Applicant or the Tribunal, including Learning Support Team (LST or LAST) meeting notes containing references to FLN's behaviour management, witness accounts provided to the School regarding the School Carnival incident on 8 August 2017 from Kayla Eid, Sarah Jones, Evan Beazley, other incident reports, correspondence between School staff regarding FLN's behaviour and various consequences including suspensions, FLN's Term Achievement Reports, and FLN's Absences Report from 2015 to 2017 inclusive.
However, none of those additional records were addressed by any witness of the Respondent capable of explaining their content and context, and none of them were referred to by the Respondent's counsel in his written closing submissions filed 4 May 2021. The Tribunal accordingly rejects the bundle of 421 pages produced by the Respondent as evidence capable of supporting any factual finding or inference for the Respondent, in circumstances where those documents were not addressed by the Respondent in witness evidence or submissions. The only consideration the Tribunal has given the content of those records is where the Applicant has referred to specific pages in her written submissions to support her evidence.
On 23 February 2021 the Respondent filed an affidavit of Ms Catherine Thomas, a Legal Officer of the Respondent, sworn 22 February 2021, and served on the Applicant on 28 February 2021 by email. Ms Thomas deposed in her affidavit to the searches and enquiries conducted by the Respondent, but did not herself conduct those searches or enquiries, and did not provide details of the individuals who conducted those searches or enquiries for the Respondent, with the exception of: Abdalla Eissa, Leader Records and Information, has confirmed to me that all the Department's business emails are kept in TRIM or printed and filed in paper files and that information held in an employee's email box are not official records.
According to Ms Thomas, emails were sent (from whom is unknown) to FLN's former SLSOs who were still current employees, named as Paul Thompson and Liza Das, asking them to "search their emails for any information, documents, notes regarding support for the student FLN provided between January 2014 to December 2017 inclusive". Ms Das responded that she "had no such records held in her current email box". The Respondent's Information Security Unit (ATP) were contacted (by whom is unknown) to provide a costing for accessing the email inboxes of FLN's other former SLSO's, Paul Thompson and Penny Liu.
Ms Thomas reported that: The ATP Unit advised that there were very limited circumstances under which approval may be given to accessing an employee's mailbox without their permission. Approval is required from the Secretary or Deputy Secretary".
The ATP Unit costed this exercise of "searching the archived emails of two ex-employees for a period of two years would be in excess of $39,149.32", based on: Staff cost daily - $2,332.42 x 6 - $13,994.52 Resource cost - $2,790.07 Contingency cost per resource - $2,790.07
Ms Thomas then stated: …Such a search would be looking for documents that the employer should have saved in the Departmental record system. It may be the case that the search would not produce any results. 13. It is the Department's view that conducting the search is unreasonable in the circumstances, in light of both the magnitude of the costs involved and as such searches would involve a substantial diversion of the agency's resources.
Ms Thomas did not annexe any documents to her affidavit to support her assertions. The Tribunal rejects Ms Thomas' evidence as assertion and hearsay, unsupported by any readily available documentary proof of its contents.
The Tribunal agrees with Ms Thomas' statement that "such a search would be looking for documents that the employer should have saved in the Departmental record system". The School should have saved certain records in the Respondent's record system, but either failed to do so, or those records were kept but not accessed and produced when requested by the Respondent. This is precisely the reason why the Tribunal specified in its orders of 11 February 2021 that the searches be conducted, and an affidavit be provided by the person who conducted the searches.
In relation to the evidence provided by Ms Thomas, the Respondent's counsel submitted: Having regard to the guiding principle, the Tribunal would, respectfully, accept Ms Thomas' opinion (at [13]) that the magnitude of the costs involved, as well as the inevitable diversion of the Department's resources, would not be reasonable in all the circumstances.
Ms Jones stated to the Tribunal in oral evidence that the SLSO records relating to FLN were not available to the Applicant or Tribunal because the SLSO coordinator's computer had been decommissioned on her retirement, and the records were not otherwise kept elsewhere. In those circumstances it is extremely difficult to understand how the Tribunal's guiding principle "to facilitate the just quick and cheap resolution of the real issues in the proceedings" could possibly justify the Respondent failing to conduct searches of the electronic mailboxes of FLN's former SLSO's, on repeated request by the Applicant and order of the Tribunal, even if the Tribunal accepted that the costs were a relevant consideration.
The Tribunal deliberately referred in its order of 11 February 2021 to the Respondent being "unable to access archived documents and emails" as the only basis by which such documents should not be produced in compliance with its order for production. Even if the Tribunal were to accept that accessing the archived emails required approval from the Secretary or Deputy Secretary, and would incur the purported costs (which it does not accept on the material currently before it), it is entirely improper for the Respondent to fail to comply with the Tribunal's repeated orders for production. The purported costs involved are irrelevant in the circumstances, and the Respondent should have obtained whatever approvals were necessary to ensure compliance with the Tribunal's orders. The Tribunal carefully considers any orders it makes and expects requisite compliance by all parties.
The orders for production of 8 August 2020 and 11 February 2021 sought documents which formed part of the Respondent's basic record keeping obligations and should have been readily available or accessible by the Respondent. It is difficult to understand how the Respondent could misconstrue the Tribunal's original order for production so narrowly, how it repeatedly failed to comply with the Tribunal's subsequent requests for the records, and how it then justified not conducting relevant searches because of the alleged cost involved and the diversion of resources which it would require. The Tribunal finds consequently that the Respondent has not complied with its orders dated 8 August 2020 and 11 February 2021.
The Respondent has repeatedly failed to comply with the Tribunal's orders for production, which has disadvantaged the Applicant in preparing her case and has frustrated the Tribunal in its conduct of these proceedings. The Tribunal was assured by the Respondent's counsel and his instructing solicitors that there were no further documents in its possession or control on three occasions, only to later produce further documents. The Respondent is a large and sophisticated government department, an experienced litigator with access to extensive legal resources both internally and externally, and it is subject to the Model Litigant Policy for Civil Litigation (NSW). Its legal representatives are familiar with the Tribunal's processes, its guiding principle expressed at s 36 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) and the obligations thereby imposed. The Applicant, in contrast, was self-represented, which meant that the Respondent's conduct in these circumstances would have had a significant negative impact on her and her ability to pursue this complaint, both financial and emotional.
In its written closing submissions, the Respondent stated: The Respondent accepts and appreciates the difficulties caused to the Tribunal and the Applicant as a result of its failure to properly comply with those orders prior to 24 February 2021, and sincerely regrets the inconvenience caused.
In circumstances where the Tribunal considers that the Respondent still has not complied with the orders for production that statement of regret is of limited value. Furthermore, the Tribunal observes that the conduct of the Respondent appears incommensurate with the NSW Government's Model Litigant Policy, and section 36(3) of the CAT Act.

[5]

The Applicant's evidence

As discussed above, the Applicant had substantial difficulties in obtaining records from the Respondent which should have been kept, maintained and stored by the School in relation to FLN's schooling, but which were not made available to her.
The Applicant gave her evidence to the Tribunal via oral and written submissions, and with handwritten commentary on documents. Despite leave being granted only in relation to her complaint about FLN not receiving SLSO support, she continued to provide evidence and submissions in relation to her complaints which were refused leave, including the School's failure to provide FLN with a laptop and the restrictions placed on him in relation to playing sport. The Tribunal has disregarded that evidence and those submissions.
The Applicant provided written submissions following the hearing, including 18 handwritten pages and handwritten commentary and highlighting on approximately 85 pages of documents extracted from the Respondent's filed material.
The Applicant submitted that despite the Individual Behaviour Management Plans (IBMPs) developed in collaboration with the School, herself, and the Learning Support Team, FLN did not actually receive the quantum of SLSO support required by those plans. She stated to the Tribunal that FLN was not consistently supported by an SLSO throughout 2015, 2016, and 2017, and that his education suffered as a result. She acknowledged that there had been some modest SLSO support provided in those years but stated repeatedly in her oral and written submissions that the support was not consistent and was not enough, in circumstances where funding had been allocated for that purpose. She also strongly asserted that the documentary evidence of the support plans for FLN were not, in fact, implemented.
The Applicant gave evidence to the effect that FLN had been placed in the enrichment class, 4EN, in 2015 without her permission. She stated that this was inappropriate, and that he could not cope academically or behaviourally. She said this isolated him from his friends and made him more disruptive. She said that he should have been in the regular Year 4 class with a teacher's aide / SLSO supporting him to stay on task and do the work.
The Applicant stated that the School had managed FLN's behaviour by constantly suspending him from school, restricting his participation in sports events as a punishment and having him sit outside the Deputy Principal's office for whole school days, instead of participating in class with the support of an SLSO. The multiple out-of-school suspensions ranged from 1 day to over 2 weeks at a time. This had caused him to be isolated from his peers and had a huge detrimental effect on him academically.
The Applicant stated that she had tried on numerous occasions to find out from the School who FLN's teacher's aide was, and to arrange with the School to speak to them, and was never able to speak to any of them. She said that on her knowledge, in 2016 when FLN was in Year 5, he had a teacher's aide for one or two weeks, "someone called Paris". She never met Ms Liu, who the Respondent stated was FLN's teacher's aide in 2015.
She gave evidence that FLN had been assaulted by another school's principal at a sports carnival in August 2017, which had caused him significant anxiety and distress, and had made things considerably more difficult for both of them. She had made a complaint and had sought information about the Respondent's investigation for the purpose of supporting the report she made to Police, but was told that there were no statements made about the incident, and she otherwise received little information from the School or the Respondent. She was dissatisfied with the School and Respondent's response. She alleged that the fact that the assault occurred demonstrated that he was not provided with sufficient learning support by the School, and was not assisted by a Student Learning Support Officer on that date.
The Applicant's evidence in relation to specific documents provided to the Tribunal included: 1. Suspension resolution meeting minutes, dated 14 March 2017, attended by Mrs French (Principal), Mr Beazley (Stage 3 Assistant Principal), Mrs Tyler (Class teacher), the Applicant and FLN, with notes prepared by Ms Lupton (Deputy Principal). Action items included "Review of academic and social goals determined in meeting February 2017. Suggested strategy of more structure at lunch time, eg GA assistance or calm down time in DP office" and "CPS counsellor to liaise with psychologist in terms of strategies to assist FLN". The Applicant stated that the recommendations made by the psychologist, Ms Wimalaweera, were then not implemented. 2. Suspension resolution meeting minutes, dated 7 April 2017, attended by Joanna French (Principal), Mrs Tyler (Class teacher), the Applicant, FLN, Marcus Farah (Deputy Principal), Larissa Elliott (Counsellor), with notes prepared by Evan Beazley (Assistant Principal). Action items included "Mr Paul to supervise and support FLN during lunchtime" and "Counsellor intervention to begin early next term". The Applicant stated that these action items were not implemented. 3. Suspension resolution meeting minutes, dated 12 May 2017, attended by Joanna French (Principal), Rebecca Tyler (Class teacher), the Applicant, Gemma Haigh (Deputy Principal), with notes prepared by Evan Beazley (Assistant Principal). Action items included "Physical aggression, RT states his is improving, however still needs to make further improvements whilst unsupported", "JF discussion of FLN's funding. SLSO should be consistent for FLN. RT/EB are working with FLN during lunchtime on social skills", "Discussion of counselling session, These sessions will be implemented in the coming weeks". The Applicant stated that these items demonstrated that the School was getting funding for FLN's support, but that he was not then provided with the teacher's aide/ SLSO or support during lunchtimes and didn't receive the anticipated counselling sessions. 4. Review of behaviour goals, dated 8 June 2017, attended by Joanna French (Principal), Gemma Haigh (Deputy Principal), Rebecca Tyler (Class teacher), the Applicant and FLN, with notes prepared by Evan Beazley (Assistant Principal). Action items included "review and discussion of personal learning plan", "playground supervision of FLN will continue as FLN undertakes new medication". Playground Timetable dated to July 2017 for FLN, which rosters Mr Paul on as FLN's teacher's aide / SLSO from 11am - 11.30am, Monday to Thursday. The Applicant stated that the assault on FLN which occurred on 8 August 2017 would not have happened if there was a teacher's aide/ SLSO assisting him during lunch breaks as had been documented. 5. Correspondence to and from the Applicant, the School and Respondent about FLN's support and management while at the School, and their investigation of complaints made by the Applicant. This correspondence included investigations by the Respondent of the allegations subject of these proceedings, specifically FLN's access to a SLSO during 2014 - 2017. The Applicant stated that the School had not provided consistent SLSO support between 2014 and 2017 despite accessing funding for that purpose.
Under cross-examination it was put to the Applicant that FLN's student review report dated 30 August 2017 showed that he had improved academically by the end of 2017. The Applicant strongly disagreed, pointing out that all FLN's "tests showed he was below average and then report shows improvement miraculously", and that his suspensions continued.
The Applicant identified numerous gaps in the Respondent's evidence which she submitted supported her claim. Chief among them was the Respondent's failure to provide any evidence from the individual SLSOs who were supposed to have assisted FLN throughout 2015, 2016, and 2017. None of the SLSOs had contributed to the hundreds of incidents recorded by the School on a daily basis in the incident summary report for FLN, and none of the incidents recorded between 2015 and 2017 referred to an SLSO or teacher's aide assigned to him. In relation to FLN's placement in the 4EN class, the Applicant pointed out that there was no documentation of her agreeing to or supporting this decision.
In response to Ms Jones' evidence, the Applicant stated: She states FLN had 3 hours a day with assistance, but yet in her evidence at the hearing she stated that FLN had to be kept away from another student ([name redacted]) but yet they were both still on the timetable of the SLSO (no updated one). She stated that FLN had 3 hours of a teachers aid a day when in fact she verbally acknowledged that FLN was in her office from 9am to 3pm for days in a row consistently. This proves that FLN did not have a teachers aid in class assisting him as per resolutions meetings as stated in my evidence and complaint.
The Applicant's written closing submissions addressed the evidence given by Ms Jones at the hearing, and the additional documents provided by the Respondent following the conclusion of the oral hearing. Those submissions included the following statements: My complaint of discrimination was filed because of the lack of consistencies/support in providing my son FLN (who was diagnosed with ADHD and ODD and later anxiety) a teachers aid during the period of 2014 - 2017. I specifically asked for the teachers aids names timetables, stating relevant information/proof as to who was assisting my son during class whilst at school. During the hearing the Respondent and Ms Jones gave three names - Ms Penny Liu, Paris, and Liza Daz. … Ms Jones provided the following list of all current SLSO's and former SLSO's who have worked with FLN at the school. A) Paul Thompson B) Penny Liu C) Liza Das. Paris is not on this list, even though Ms Jones said he worked with FLN. During Ms Jones evidence she stated FLN had 3 hours of a teacher's aid assisting him as well as FLN was sent to another Maths class (regular one) while in 4EN. As you can see form my evidence of FLN's school reports, … "Mathletics" Ms Paton for Stage 2 Semester 1 - 2015 School report/ comments. Then semester 2 - 2015 school report "Mathletics" page 26 of these documents attached (4EN Maths class, not a different regular maths as respondent said). … The one timetable provided by the Respondent doesn't even add up to 3 hours a day of assistance. … all my resolution plans/meetings after FLN's suspensions, clearly state that FLN required a teachers aid in the classroom and during break times. These suspensions/meetings were nearly every three months. …So far, I've been only given one timetable for 2016 and one for 2015. (An individual behaviour plan). No teachers aids names on it. Page 23 of my submissions dated 13th April 2021 says "new timetable and SLSO" - where exactly is the new timetable? It also stated that SLSO is required for academic!! Yet when you read FLN's school reports and grades, it doesn't add up. A consistent aid/SLSO could have made a beneficial difference to FLN's learning and staying on task. … In the respondent's submissions … FLN being placed in the 4EN on a trial basis (approx. 3 months) [and then]… Return to mainstream class? FLN was in 4EN the whole year. Teachers aid was not consistent as per resolution meetings. I've attached FLN's school photo for 2015, as you can see its class 4EN. The school photos were taken Thursday 12th November 2015 - Term 4 and less than 4 weeks of the end of school term for the year. Where and which class was he in after the 3 month trial, as per the Respondent's reply. School photo proves the respondent wrong. … When I would come to the school grounds and question as to who was FLN's teachers aid, so I could get feedback, there wasn't one there. I questioned the principal, the conversation would get heated, because I wasn't getting answers, and then the next day I was given an enclosed act and told to make an appointment to discuss anything to do with FLN's teachers. …
The Tribunal found the Applicant to be a passionate, persistent and determined advocate. As a witness, she was defensive but her evidence was direct and unwavering, if repetitive. She was unwilling to concede propositions put to her by the Respondent in the absence of supporting documentary or direct evidence, which the Tribunal considers reasonable, but was also unable to provide supporting documentary or direct witness evidence for many of her own assertions. In the circumstances the Tribunal accepts the Applicant's evidence where it is supported by documentary evidence.

[6]

Applicant's other evidence

The Applicant summonsed Ms Subodha Wimalaweera, a clinical psychologist with the Sydney Local Health District who treated FLN through the Child and Family Counselling Service from 2015 to 2018. The Applicant provided the Tribunal with two reports by Ms Wimalaweera dated 21 August 2017 and 1 September 2020 and her progress notes dated 15 September 2016, 9 March 2017, 14 March 2017, 26 July 2017, 11 August 2017, 12 September 2017 and 25 September 2017.
Ms Wimalaweera gave evidence that she had diagnosed FLN with Oppositional Defiance Disorder (ODD) and his paediatrician had diagnosed him with Attention Deficit Hyperactivity Disorder (ADHD). These conditions impacted FLN in school and with his peers in a variety of ways, including difficulty paying attention, hyperactivity, behavioural outbursts, difficulty in regulating emotions, anxiety reactions including panic attacks, breathing issues and headaches often associated with separation anxiety. She worked with FLN using cognitive behavioural therapy and assisted the Applicant in developing behavioural management strategies for the home.
She recalled having a meeting with the school counsellor to develop an individual education plan (IEP) for FLN on 21 April 2017, which the Applicant had instigated and arranged. An IEP was necessary because of FLN's challenging behaviours, in the classroom and in the playground, and following an incident at a school carnival in 2017.
Ms Wimalaweera stated that she had had no interaction with FLN's school prior to 2017, when the school counsellor had requested the meeting with her and a letter containing FLN's diagnosis. She had had no interaction with any of the School's SLSO, including Ms Liu and Mrs Suess. The only person she had interacted with at the School was Larissa Elliot, the counsellor. Under cross examination it was put to Ms Wimalaweera that the School was precluded from contacting her without parental consent unless it was a mandatory reporting issue under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998.
Ms Wimalaweera's progress notes provide some limited information about FLN's behaviour, support and management at school: 1. On 15 September 2016: FLN reported that he had been suspended last week for being rude to substitute teacher and also for throwing mandarin peels around and out the window … Mo [1] reported that his class teacher is still away and she had spoken to the teacher about having a plan for FLN when his current teacher was not in classroom but the school haven't agreed to plan and instead will have FLN go to a different classroom instead. 1. On 9 March 2017 Mo reported that FLN is currently on suspension 11 days due to aggression in playground. … Mo reports that she is unhappy that the school is not implementing the behaviour management plan that was discussed earlier in the year. Mo reports that they haven't implemented the strategies outlined in the OT report. Mo requested clinician to be present at meeting to assist with developing behaviour management.
On or around 21 April 2017, Ms Wimalaweera attended a meeting with the Applicant and School Counsellor (SC) Larissa Elliott at the School, and recorded the following: - FLN currently suspended from school due to aggressive incident in playground where FLN pushed another child into fence after he spoke rudely to FLN. - Second suspension this year. - Discussion with SC re current behaviour management plan. SC not able to comment on school discipline policy but able to advocate for behaviour management plan to include section on when warnings will not be used. Mo not happy with current behaviour management plan and feels that school is being too harsh on FLN and punishing him for things that are [sic]. - Discussion with SC re playground being high risk situation for FLN and alternatives and further support discussed. SC to discuss whether FLN can be part of new program where he would help ground staff around the school and possibly the teachers rather than be in playground - Mo requested information re additional support for FLN and where it is currently being used. - Discussed arranging for additional support in playground. - Discussion with SC re getting feedback from class teacher re FLN's progress in classroom to assist with upcoming paed review appt. SC agreed to send information with Mo re FLN attention and concentration in classroom. - SC able to see FLN at school to help support better decision making and better anger management and emotion regulation at school. - SC discussed preparing FLN for high school readiness and Mo reported that her priority was for FLN to finish Year 6 with no further suspensions. - Discussed priorities for family, for school and FLN and needing to work together both SC and Mo agreed that there needs to be improved communication between the school and parents. Plan - SC to follow up with teacher re data collection to provide to CH ahead of paediatric review apt. - SC to follow up with Mo and FLN re support for FLN in playground and possibility of individual sessions for FLN in classroom. - Clinician and Mo to liaise at paediatric review appt.
On 26 July 2017 Ms Wimalaweera received a phone call from Larissa Elliott requesting she complete a report and paperwork "outlining his current diagnosis and medication and services currently involved be sent to school", which was "required for FLN to continue to access funding for next year". Ms Wimalaweera recorded: Aware that Mo will need to approve letter and consent is needed. Discussed FLN's behaviour and Larissa reported that on Ritalin FLN was better behaved in classroom and playground than he was on the concerter. Discussed with Larissa that for the current time, plan is for FLN is to remain on Ritalin and discussion around need for additional support in playground as it is the high risk situations for FLN.
Ms Wimalaweera provided the Tribunal with helpful evidence about FLN's assessment, diagnosis and treatment. She gave clear and reasonable explanations under cross examination for the contents of her progress notes and reports. The Tribunal accepts her evidence but notes there was little contemporaneous information from her about the provision of SLSO assistance to FLN in 2015, 2016 or 2017, or the effect such assistance was or was not having on his academic progress and behavioural management.

[7]

The Respondent's evidence

As discussed above, the Respondent initially did not provide the Tribunal with any witness evidence, instead seeking to make submissions on the inferences which could be drawn from the limited documents produced by them in response to the Tribunal's order and the Applicant's requests. Ms Sarah Jones later provided an affidavit on behalf of the Respondent and was cross examined by the Applicant at the hearing in February 2021.
Ms Jones is the Deputy Principal at the School and was aware of FLN and his disabilities, having acted in her role since 2014. She annexed to her affidavit the following documents, and provided her explanations of them: 1. Incident log from 2010 - 2017 kept by the School in relation to FLN's behaviour; 2. IBMP dated 9 February 2015 (2015 IBMP); 3. IBMP summary for 2015; 4. Reviews of the 2015 IBMP; 5. Funding request by the School for Integration Funding Support from the Respondent; 6. Learning Support Team meeting notes from 1 September 2015; 7. Funding confirmation from Respondent dated 17 September 2015; 8. Correspondence and communications regarding the School's proposal to place FLN in an Emotional Disorder/ Behavioural Disorder (EDBD) class; 9. Funding confirmation for 2016; 10. IBMP for 2016 dated 15 February 2016; 11. Individual Learning Plan / Personal Learning Plan for 2017 dated 1 February 2017; 12. Two weekly SLSO timetables dated to 2017; 13. Student Review meeting report for 2017, dated 30 August 2017; 14. Correspondence and communications between the School and the Applicant regarding FLN's transition to high school.
In relation to the consistent provision of an SLSO to FLN, according to Ms Jones' evidence, FLN's SLSOs had been Paul Thompson, Penny Liu, and Liza Das. In 2015 FLN was initially placed in an enrichment class, Class 4EN, as an alternative to having an SLSO support him in class. From late April/ early May to the end of the school year, FLN was provided with an SLSO for 3 hours each day, to support his core literacy and numeracy learning. Funding was obtained from within the School's budget (under the Department's 'RAM' funding model) until mid to late September 2015. On 28 August 2015 the School submitted a request for Integration Funding Support from the Department, which included the following statements: …his application is dependent upon the support of an SLSO to encourage and monitor his responses to the curriculum... The School is currently providing its own funding for the support of an SLSO for FLN. Without this support FLN would not access the curriculum and the likelihood of suspension due to repeated non-compliance would be highly likely. A SLSO reduces the impact of FLN's behaviour on his own learning and the learning of his peers in his class… FLN has received integration funding in 2011 - 2012 at Campsie Public School where a SLSO assisted his learning.
The Respondent allocated $2,880 in Integration Funding Support to the School for the remainder of the 2015 school year. The documentary support for the Respondent's evidence in relation to the 2015 school year consisted of the 2015 IBMP, funding requests, and some team meeting notes from LST.
Ms Jones stated that in 2016 FLN was provided with an SLSO for the entirety of the 2016 school year. Initially, the SLSO was required "for academic assistance and on-task behaviour", but on review, the School determined that FLN also required SLSO support outside of class time... During Term 2, FLN was also supported by a Learning and Support Teacher to assist with his academic ability in literacy. The funding for FLN's SLSO in 2016 was met through the Respondent's Integration Funding Support Model, which allocated $8860 to the School for the year. The only documentary support for the Respondent's evidence in relation to the 2016 school year consisted of the 2016 IBMP and funding approval notification.
Ms Jones stated that in 2017 FLN was supported by an SLSO in classes all year. He was supervised at lunchtimes on a 2:1 basis until early October 2017, when that decreased to 1:1 supervision by the SLSO. The Respondent and Ms Jones relied on a copy of FLN's "playground goals" and a copy each of one of Liza Das and Sophie Paras' weekly timetables, which allocated Liza Das supervision of FLN during recess and lunch on Mondays through Fridays, and allocated Sophie Paras supervision of FLN between 12pm - 1pm on Mondays and Wednesdays, and between 2pm to 3.15pm on Thursdays.
At hearing, Ms Jones' explained that a teacher's aide and SLSO were interchangeable terms. She said that the documents produced by the Respondent had been collated and searched for by her, but agreed that she had not authored them. Those documents which were produced were located on the School's service system "Sentral", which contains records of behaviour, attendance and emails. She stated that the documents authored or created by the SLSOs and LST would have been located on Mrs Suess' computer, as head of LST up until 2016. This computer had been destroyed.
Under cross examination Ms Jones stated that the destruction of records kept by Mrs Suess was not discovered until 2020, when searches were conducted (presumably for these proceedings). She conceded that this was not good record keeping practice, but stated that this was one teacher's practice. She agreed that she had not been party to or signed off on the resolution meetings minutes which she was relying on to support her claims about the support provided to FLN by the School. She stated that there was no formal documentation kept by teachers' aides.
Ms Jones attempted to explain the rationale behind placing FLN in the 4EN class. She said that the students in the enrichment class were "independent, motivated workers" who required less instruction from the class teacher Ms Liaros, so Ms Liaros would have more time to commit to FLN in class. Even so, "Ms Liaros found his behaviour challenging and disruptive". She said that the other Year 4 class, 4LP, had "a number of students with challenging behaviours. They would have set him off." She said that the teachers were capable of teaching a wide range of capabilities in their class. Ms Jones stated that leaving FLN in the mainstream class was decided against because a female student in that class was afraid of him.
Ms Jones admitted that FLN was occasionally sat outside the Principal's office for whole days at a time. She said that the funding obtained for an SLSO did not provide for a full time SLSO for FLN, every school day. An SLSO cost $35 per hour, but the allocated funding was also used to pay for teacher relief, meetings, professional learning and resources. She said that FLN was provided with an SLSO for 3 hours per day, every school day, in 2015. That SLSO was Ms Liu, who did not keep any records, but would provide verbal reports daily to Ms Suess, and participated in regular team meetings. The incident records showed that FLN was often sent to the "working it out room" but there were no records kept of attendance and no information regarding progress or what academic or behavioural assistance was provided to him there. She stated that most of the negative incidents in 2017 were in the playground, and FLN had made significant progress in the classroom that year.
In re-examination Ms Jones confirmed that the Applicant had not given consent to FLN's placement in 4EN in 2015 but stated that although keeping parents informed was best practice, there was no requirement from the Respondent to take into account a parent's view in deciding class placement.
In her oral evidence Ms Jones appeared defensive and uncertain at times, and did not always provide fulsome or straightforward answers to the questions asked of her. The Tribunal found Ms Jones' evidence of some assistance in understanding the documents provided by the Respondent in support of its defence. However the Tribunal does not accept that the limited documents provided by the Respondent as annexures to Ms Jones' affidavit entirely support the assertions made by her.
The Tribunal's impression from the documents produced by the Respondent and explained by Ms Jones, and from the absence of records relating to the day-to-day management and support of FLN's behaviour and academic progression at the School, was that Ms Jones was not personally involved in the management of FLN's learning or behaviour at the School and the day-to-day decisions made in relation to his support at the School, but was piecing together what had occurred in 2015 to 2017 from the limited documents she was able to locate to support the Respondent's position. Those decisions and that management was the responsibility of the LST and its' SLSOs, which operated with limited involvement from the School executive. There was no practice of regular or consistent reporting by LST to the School executive, and no practice of recording by the LST of the day-to-day allocation of resources or interactions with FLN, or other students under its purview. The fact that this was not discovered by the School until 2020 demonstrates the lack of awareness or involvement that the School's executive had in relation to the provision of learning and behavioural support to its students. LST did not regularly or consistently contribute to the School's record keeping or document management system, Sentral. The School executive oversaw the funding applications and was involved when a classroom teacher or playground supervisor recommended a suspension or other disciplinary measure to be imposed on FLN, but did not then make any inquiries with LST in relation to what support should be provided to FLN to manage his behaviour, or explore alternatives to disciplinary measures.
The effect of this is that whilst the Tribunal accepts that the School received funding for learning support for FLN during the 2015, 2016, and 2017 school years, the Tribunal does not accept Ms Jones' evidence that FLN was provided with 3 hours per day of consistent individual SLSO support in 2015 for each school day from May to December 2015. There is no reference to an SLSO allocated to FLN in the incident report records for 2015, despite Mrs Suess contributing three negative incidents to that record. The Tribunal accepts that an SLSO may have assisted FLN on occasion during that year, which would explain the email from Assistant Principal Ellen Zonaras to the Applicant dated 24 August 2015 containing the comment that FLN received 3 crosses for "calling out and not following the instructions of his Teacher's Aide". The Tribunal finds that the provision of an SLSO for 3 hours per day on a consistent basis may have been the intention expressed in the 2015 IBMP, but the Tribunal does not accept the Respondent's evidence that this in fact occurred.
The Tribunal similarly does not accept that FLN was provided with an SLSO on a consistent or regular basis in 2016 or 2017. The evidence before the Tribunal only supports a finding that some SLSO support was provided to FLN in 2016 and 2017, without any possible finding as to the details of when or how that support was provided, by whom, or how often. There is no evidence before the Tribunal of how many hours per day, or how many days per week an SLSO was allocated to FLN during those years, save as to the two weeks in which timetables were located by the Respondent for playground supervision by an SLSO. There is no evidence other than Ms Jones' assertion (which the Tribunal does not accept in the absence of supporting documentation) that FLN did, in fact, have assistance from an SLSO in compliance with the 2016 IBMP, or who was allocated as his SLSO.
The Tribunal finds that v was placed in the 4EN class in 2015 without the assistance of an SLSO until late April/early May 2015. From late April/early May 2015 remained in the 4EN class but was also provided with some SLSO support. Nevertheless, the evidence of Ms Jones as supported by the incident report records demonstrate that Ms Liaros, the 4EN class teacher, continued to document negative incidents in relation to v's conduct in her class in May, June, July, August, September, and October 2015. v's inclusion in the annual class photograph for 4EN, taken towards the end of 2015, also indicates that he remained in 4EN for the whole of 2015.
The Tribunal does not accept the Respondent's submission to the effect that FLN's placement in 4EN was a positive decision made to assist him in reaching his academic goals. The Respondent did not produce evidence indicating how the behaviour management strategy of FLN's placement in 4EN included any consideration of how FLN's academic achievement would be facilitated and supported in this class. In its written closing submissions the Respondent offered an explanation regarding the School's rationale for this placement, albeit without evidence, noting that the placement in 4EN was 'reasonable', as 'success' would mean 'that the School's resources would be freed up and allocated to other students'. The Tribunal finds that this decision was made by the School to diminish the effect FLN's disruptive behaviour had on other students in class, and to address the school's concern in relation to a particular student in the alternative Year 4 class, rather than to positively assist FLN in managing his behaviour so as to allow him a better chance to improve academically, or even keep up with the curriculum and learning standards.

[8]

Whether discrimination occurred

The Respondent submitted that there was no instance of indirect disability discrimination as defined by s 49B(1)(b) of the Act, and that the Applicant failed to satisfy s 49L(2) of the Act, and had failed to reach her onus.
Considering each of the facts required for a finding of unlawful discrimination, as discussed above at [13], the Tribunal is comfortable making a finding on the basis of the evidence before it, including specifically the funding allocations by the Respondent for integrated learning support incorporating just four students other than FLN in the 2016 school year, that a substantially higher proportion of persons who do not have FLN's disability are able to participate in classroom learning without the support or assistance of a teacher's aide and/or Student Learning Support Officer (SLSO). As discussed above at [14], this was not disputed by the Respondent. With respect to the application of s 49B(1)(b) of the Act, this constituted a requirement on FLN to comply with a requirement or condition - the participation in classroom learning without a student learning support officer - with which a substantially higher proportion of persons who do not have FLN's disability (or its characteristics) are able to comply.
With respect to the second element of s 49B(1)(b), that the requirement was not reasonable having regard to the circumstances of the case, the Tribunal finds that it was not reasonable for the School to require FLN to participate in classroom learning without any support from a student learning support officer. This finding is supported by the Respondent's evidence of the funding the School applied for and was allocated by the Respondent to provide FLN with a Student Learning Support Officer, the 2015 IBMP and associated documents as attached to Ms Jones' affidavit, the 2016 IBMP and 2017 Individual Learning Plan, all of which identified the need for FLN to be provided with assistance from a Student Learning Support Officer in class.
However there is insufficient evidence for the Tribunal to make a finding that this condition or requirement was, in fact, placed on FLN. The Tribunal has accepted that some SLSO support was provided to FLN in 2015, 2016, and 2017. The Applicant accepted that FLN received some support from an SLSO on various occasions in 2015 to 2017. She asserted that this support was not consistent, regular or sufficient, but there is no evidence to support that assertion. She submitted that his repeated suspensions demonstrated that he was not being supported by an SLSO in class, but the information before the Tribunal regarding those suspensions, in particular the lengthy suspensions in 2017, is that they were implemented because of his behaviour towards other students in the playground, not in class.
Neither the Applicant nor Ms Jones was a direct witness to the support provided to FLN during class in 2015, 2016, or 2017. There was no direct witness or documentary evidence of the day to day support actually provided to FLN in class in 2015, 2016, or 2017. The only evidence before the Tribunal of the impact that a teacher's aide or SLSO actually had on FLN's classroom behaviour and participation is the email from Assistant Principal Ellen Zonaras to the Applicant dated 24 August 2015 containing the comment that FLN received 3 crosses for "calling out and not following the instructions of his Teacher's Aide", which supports the Tribunal finding contrary to the Applicant's submissions.
Even if s 49B(1)(b) is made out by the Applicant, that conduct is not unlawful unless s 49L(2) is satisfied. The Tribunal must consider whether requiring FLN to participate in classroom learning without a teacher's aide/SLSO was denying or limiting his access to a 'benefit' provided by the School; or subjecting him to 'any other detriment', within the meaning of s 49L(2)(a) of the Act. The leave granted to the Applicant pursuant to s 96 of the Act excluded all of her complaints other than the failure of the School to provide FLN with a teacher's aide/SLSO, anticipating by the wording of "contravened s 49L(2) of the Act by subjecting FLN to a detriment and/or denying or limiting his access to a benefit provided by the School" that this failure could possibly be viewed as a detriment, a denial or limitation on access to a benefit, or both. The difference between a benefit and a detriment has been considered in the context of federal disability discrimination, particularly in cases involving disability discrimination in the context of employment such as McBride v Victoria (No 1) [2003] FMCA 285 at [55], [61] and Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 at [102] to [104], but is also applicable to disability discrimination in other contexts or jurisdictions where the same language is used in the legislation, as it is here.
The Respondent submitted that it was plain from the evidence that FLN was taught the appropriate curriculum for years 4 - 6 and successfully completed his primary education as the School, so the complaint under section 49L(2)(a) of the Act was not substantiated.
The Tribunal does not accept that the teaching of appropriate curriculum to FLN or his completion of primary school education constitutes a "benefit" provided by the educational authority within the meaning of s 49L(2)(a) of the Act because the teaching of appropriate curriculum and a primary school education at public school is a basic statutory requirement according to the Education Act 1990 (NSW). Even if it was a "benefit", the Tribunal disagrees that the facts demonstrate that FLN was taught the appropriate curriculum or that he "successfully" completed his education. FLN's academic results and the School's record of his academic achievement reports demonstrate that while he may have completed his primary school education, it was hardly "successful" academically, and there is no evidence before the Tribunal of what the appropriate curriculum was, or whether it was taught to FLN in its entirety.
The Applicant's evidence and submissions do not identify, with any particularity, the benefit or benefits to which FLN's access was said to be denied or limited by the Respondent. Assuming (in the circumstances) that the "benefit" in question was submitted to be the provision of SLSO assistance to FLN by the School, the Tribunal rejects that submission. Following Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 202 ALR 133, the Disability Standards for Education (2005) (Disability Standards) were introduced under the Commonwealth Disability Discrimination Act 1992 requiring the Respondent to assist students with a disability, such as FLN, to access education and ensure their participation in class. The Disability Standards provide FLN with the right to specialised services - such as a SLSO - needed to participate in the educational activities they are enrolled in. The provision of an SLSO is therefore not a "benefit" provided by the School or the Respondent within the meaning of s49L(2)(a).
The Tribunal is therefore satisfied that there was no denial or limiting of FLN's access to a benefit provided by the School within the meaning of s 49L(2)(a) of the Act.
The term "any other detriment" in s 49L(2)(c) of the Act is broad enough to encompass a far greater range of conduct than that which is included in a denial or limitation of access to a "benefit". The Applicant made extensive submissions about the detriments said to have been caused by the School's failure to provide FLN with SLSO support in class, including: 1. FLN being assaulted by a principal from another school at a zone athletics carnival in 2017, which resulted in a diagnosis of anxiety; 2. FLN's schoolwork suffered as a result of his inability to comply with tasks; 3. FLN was unfairly disciplined by being given in-school detentions, having sport taken away from him, and being repeatedly suspended; and 4. FLN was denied a laptop from October 2016 to October 2017, which rendered him unable to remain on-task and caused him to misbehave.
As submitted by the Respondent, there is nothing to demonstrate that the incident at the athletics carnival in 2017, disciplinary measures such as the in-school detentions, suspensions, and removal of sports participation, or failure to provide FLN with a laptop occurred as a result of FLN's participation in classroom learning without the assistance or support of an SLSO. They are certainly detriments suffered by FLN, but there is no evidence of their causal connection to the provision of an SLSO in class, or lack thereof.
The Respondent did not dispute that FLN's inability to remain on task had a detrimental effect on his schoolwork, and accepted that it formed part of his disability. The Tribunal accepts that FLN's schoolwork suffered as a result of his inability to comply with tasks, as a result of his disability.
The Respondent submitted that to the extent that FLN suffered a detriment in terms of his misbehaviour and inability to remain on task, it was a detriment that would have occurred irrespective of whether FLN was being supported or assisted by an SLSO, and therefore was not a detriment that was caused by the discrimination.
The Tribunal disagrees. There is some evidence that the presence of an SLSO did not entirely "fix" FLN's disruptive behaviour in class, such as the 2015 email from Assistant Principal Zonaras and the 2016 IBMP containing reference to FLN resenting being monitored by the SLSO, towards whom he displayed offensive behaviour. However the School clearly agreed in 2015, 2016 and 2017 that the assistance of an SLSO in class on a consistent and regular basis would and did have a positive effect on FLN's ability to remain on task and appropriately participate in class, or it would not have continued seeking funding for that purpose. It is clear to the Tribunal that not providing FLN with any SLSO assistance in class in 2015, 2016 and 2017 would have caused him "any other detriment".
FLN's placement in the 4EN class was explained by the Respondent as the School trialling an alternative to the provision of an SLSO for FLN in the first few months of 2015. The Respondent acknowledged that trial was "unsuccessful". The Tribunal finds that FLN was subjected to "any other detriment" during that time because his placement in the 4EN class was not a reasonable alternative to the provision of an SLSO. It was an alternative implemented for the benefit of other students, to the detriment of FLN. The Tribunal considers his placement in 4EN without an SLSO as part of the Applicant's complaint to which leave was granted by the Tribunal on 24 March 2020. In terms of the effect this conduct had on FLN, the Tribunal accepts the Applicant's evidence, as supported by the School's decision that this placement was ineffective, that this placement further exacerbated FLN's isolation from his peers and did not support or enhance his academic progression.
For the remainder of 2015, and the whole of 2016 and 2017, the Tribunal has found that some assistance from an SLSO was provided in each of those years. There is no evidence to support the Tribunal finding that FLN suffered a specific detriment from late April/early May 2015 to the end of 2017 caused by the quantum of assistance provided by an SLSO in class furing those years.
The Tribunal therefore is therefore satisfied that the Respondent indirectly discriminated against FLN within the meaning of s 49B(1)(b) by subjecting him to any other detriment within the meaning of s49L(2)(c) of the Act, by failing to provide him with an SLSO from February to late April/early May 2015. The Tribunal dismisses the remainder of the Applicant's complaint.

[9]

Damages

Section 108(2) of the Act provides relevantly that if the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following--: (a) … order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, … (c) … order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), … (g) decline to take any further action in the matter.
The Applicant gave evidence that FLN was struggling in high school because of the lack of support provided to him in 2015, 2016 and 2017. She sought damages for those years in the amount of $22,500. She said he required tutoring for two years because he was more than two years' behind, which would cost $10,560, based on estimates provided by a tutoring company. She also sought damages for her loss of income for three years, amounting to $13,543.20 based on her Centrelink payment summaries, because: I was and still am a very present parent. During the 2014 - 2017 school years, I was called to the school on a daily basis, monthly meetings and suspension meetings during year 4, year 5, and year 6. I did not work during this period and went from being partnered to single, due to the stress of 2014 - 2018.
In support of her claim for damages, the Applicant provided the Tribunal with a Neale Analysis of reading Ability assessment conducted 7 August 2018 on FLN, quotations for english and maths tutoring from MM Coaching College, Belmore for $4800 for 2021 and $5760 for 2022, and her Centrelink PAYG summaries for 2014, 2015, 2016, 2017, 2018, 2019, 2020. The total amount of compensation and damages sought by the Applicant was $46,603.20.
The Applicant referred to the decisions of Chinchen v NSW Department of Education and Training [2006] NSWADT 180, Waters, Clarke v Catholic Education Office & Anor [2003] FCA 1085 and Dunn-Dyer v ANZ Banking Group Ltd [1997] HREOCA 52 to support her claim for general damages for humiliation, loss of dignity and loss of employment during the period of 2014 - 2017.The Respondent did not test the Applicant's evidence of the loss and damage suffered by her and her son, despite having ample opportunity to do so. The Respondent also made no submissions in relation to the prospect of an award of compensation, save as to state that the Tribunal "would not be satisfied that the Applicant is entitled to any compensatory relief". The Tribunal disagrees.
The power to award damages in section 108 of the Act is limited to damages "by way of compensation for any loss or damage suffered by reason of the Respondent's conduct". Damages "by way of compensation" include general damages and aggravated damages: Re Rummery and Federal Privacy Commissioner [2004] AATA 1221; (2004) 85 ALD 368 (Rummery); Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 (Hall). The calculation of damages for psychological harm is notoriously difficult. The principles discussed in Hall are generally relied on where the amount to be awarded by the Tribunal or Court is discretionary, as it is under the Act. As discussed in Rummery at [38]: In Hall v Sheiban the Federal Court referred to the difficulty in assessing compensation, but went on to say that "to ignore such items [injury to feelings, distress and humiliation] of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage" (see Wilcox J at 256). His Honour adopted "as a statement of principle useful in this area of the law" (at 256) a statement by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office [1988] 1 WLR 968 at 975: "For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards."
Rummery enounced the "restrained but not minimal" approach that a tribunal should take towards awards of damages, where an award of $8000 was made for a serious privacy breach under federal legislation. In considering the amount of compensation to award in Rummery, the Administrative Appeals Tribunal considered awards for compensation under various statutory regimes at [49] to [51]: 49. Under the former subs 170EE(3) of the Workplace Relations Act 1996 (Cth) the Australian Industrial Relations Commission may award compensation for shock and distress occasioned by the way in which an employee's employment is terminated. A consideration of those awards indicates that awards are usually made between a few thousand dollars and $20,000 [see Australian Labour Law Reporter (CCH) vol. 3 pp 35,602-35,604]. 50. In Discrimination Law and Practice (2nd ed.) the authors, Ronalds and Pepper, summarise recent damages awards for pain and suffering in discrimination cases. These examples, set out at pp 218-219, range from $1,500.00 to $25,000.00. 51. In Sheils v James [2000] FMCA 2 the Federal Magistrates Court of Australia considered the range of damages for hurt and humiliation cases dealing with discrimination and employment on grounds of sexual harassment. In that case, the Court held that: "The cases, including those previously cited, indicate a range for damages for hurt and humiliation of between $7,500.00 and $20,000.00. In the higher range of those Judgments the activities complained of constituted either more physical action (Harwin v Pateluch) (supra) or more substantial physical sequelae (Smith v Buvet) (supra). Bearing these matters in mind and the dates on which those cases were decided the Court is of the view that an appropriate award in this case would be $13,000.00." (par 79)
The approach taken in Rummery relying on principles espoused in Hall has previously guided this Tribunal's approach to the award of compensation. However, as discussed in Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (Oracle) at [81] to [108] and adopted by this Tribunal in Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 (Yelda), this approach may be overly cautious in the context of "community standards [which] now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before" (Oracle at [96], [102]). The analysis by the Full Federal Court of the assessment of the appropriate quantum of damages to be awarded for "pain and suffering and loss of enjoyment of life", which considers damages awards across Commonwealth, New South Wales and other jurisdictions, is entirely on point with the determination of the appropriate level of damages in these proceedings. Although the subject matter in Oracle is different (sexual harassment instead of disability discrimination), the underlying statutory provision requires the same thing of the Tribunal in these proceedings: to adequately compensate the Applicant on behalf of her son for the loss and damage he has suffered as a result of the harm caused by the Respondent's breach of the Act.
As discussed in Yelda at [323] to [326] in relation to the award of damages for psychological harm and "hurt feelings": The two major competing principles are, first, damages in the field should recognise the seriousness of hurt feelings or pain and suffering (usually referred to as 'general damages') and, in this case, stress, anxiety and depression caused by a contravention of the ADA. Concerning the quantification of damages for hurt feelings and stress, the courts have repeatedly asserted that awards for such loss "should not be minimal, because this would tend to trivialise or diminish respect for the public policy": Richardson's case [2014] FCAFC 82 per Kenny J quoting the English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975. Second, regard must be had to the statutory cap in the Tribunal's jurisdiction as giving a benchmark of the most serious case. See, for example. Franks v Marco's Italian Gourmet Cafe Pty Ltd & Anor [2004] NSWADT 87 (7 May 2004): [35], a decision of Needham JM, Weule and Bolr NJM, in which the Tribunal stated: In Caton v Richmond Club Limited [2003] NSWADT 202, the Tribunal found that the respondent was vicariously liable for the acts of an employee who physically harassed a female employee, over a period of a few months. There was evidence in that case of psychological effects of the harassment. In that case, the applicant was granted $15,000 damages. It can be seen that, given the $40,000 damages limit of the Tribunal the range of damages for minor or minimal breaches is quite low. Similarly, in Whiteoak v State of New South Wales [2014] NSWCATAD 45 at [27] the Tribunal referred to 'scale' in the context of the $100,000 limitation. In Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 the Appeal Panel held at [95]-[96]: ... Mr Chalker is entitled to be compensated for any distress and injury to his feelings that he suffered as a result of the discriminatory decision not to employ him. In Bonella v Wollongong City Council [2001] NSWADT 194 at [121] the Tribunal held that: Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy': Any award of general damages in this case should include a component for the complainants' loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory manner. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages. There is no statutory and very little judicial guidance as to the level of damages that are appropriate in anti-discrimination cases. Each case will depend on its facts. Where a person has been sexually harassed over an extended period and suffered significant psychological effects, awards have been made in the vicinity of $100,000: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. Awards as low as $2,000 have been made in cases of a single incident of racist abuse in public: Sidhu v Raptis [2012] FMCA 338.
Once the Tribunal has decided to award compensation for the Respondent's conduct, the amount of compensation which would be adequate is entirely discretionary, subject to the limitation placed by s 108(2)(a) of the Act of $100,000.
Bearing in mind these principles and our findings on the evidence as referred to above, we are of the opinion that an award of $2,500 as compensation for the psychological impact and hurt, humiliation, pain and suffering caused to FLN by the Respondent's conduct in not providing him with SLSO assistance in class from February to late April/early May 2015 is appropriate.
We do not accept that the Applicant should be compensated for her purported loss of income, or the costs of FLN's tutoring. While we accept that the Applicant's dedication to and involvement in FLN's schooling may have had a detrimental effect on her capacity to earn an income, and that FLN requires tutoring to rectify his educational standards, the awarding of compensation for discrimination must be causally connected to the person who is the subject of the discrimination, the specific findings of discrimination, and evidence of loss or damage caused by the discrimination. There is insufficient evidence before the Tribunal on which such connections could be established.

FLM v State of New South Wales

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Judgment (12 paragraphs)

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Cases Cited (15)

Cited By (4)