Grounds 1 and 2 (the Racial Discrimination Complaints)
22These grounds relate to the dismissal of the racial discrimination complaints, with Ground 1 referring to the complaint relating to Mr Compton's conduct (Incident 1) and Ground 2 referring to the complaint relating to Mr Sullivan's conduct (Incidents 2 to 9).
23Incident 1 (Mr Compton) and Incidents 2 to 7 (Mr Sullivan) refer to events said to have occurred in the classroom. Incidents 8 and 9 refer to conversations with Mr Sullivan after class on 9 December 2010 (the two were referred to together as Incident 8 in the summary dismissal decision). Ms Obieta's version of events was disputed. The Tribunal heard evidence as to what occurred from Ms Obieta, Mr Compton, Mr Sullivan and Ms Doueihi (called by the College), a classmate of Ms Obieta, who was present on the occasion of Incidents 1 to 7.
24(We have had difficulty with clearly identifying the factual findings of the Tribunal because of the way it chose to organise its reasons. Instead of simply organising the material incident-by-incident in a chronological sequence, and dealing with all relevant evidence at each point and referring to the applicable law, it chose to follow the method of summarising the evidence of each witness and recording findings as to their evidence at the foot of the account of their evidence. The result is that findings are sometimes scattered about in the reasons, rather than gathered together.)
25We will set out (with some excisions) Ms Obieta's opening paragraph of Ground 1, in which she itemises the alleged errors of law in the Tribunal's reasoning. The same text is repeated in the first paragraph of Ground 2.
The Tribunal Members made error in law in their decisions and reasons for decision in not applying the law or provisions of sections 7, 17 and 19 of the Anti-Discrimination Act 1977 (NSW), or failed to apply correctly the law or its provisions within its meanings in respect to the claims of the Appellant ... in Incident 1 .... . The Tribunal Members erred in law in their decisions and reasons in omitting or excluding the reasons for the decision of the Deputy President [in the summary dismissal decision] at paras [14] and [26] for race discrimination against [Mr Compton] in summary hearing. The Tribunal members erred in law in failing to legitimately draw an inference of race discrimination on the relevant facts or evidence or the case and circumstances, and sworn statements and testimonies of the respondent's witnesses in Incident 1, and the decisions and reasons of [the Deputy President] in summary hearing for race discrimination. The Tribunal Members' decisions and reasons for decision were against the weight of the evidence. The Tribunal Members' decisions and reasons and decisions were not fair and equitable.
26The material that follows after each Ground does not explain how the relevant law was misapplied given the findings of fact.
27Ms Obieta's appeal is misconceived insofar as it relies on the rulings made by the Tribunal on the summary dismissal application. It is clear law that a court or tribunal must only dismiss a case summarily, i.e. without full hearing, if, taken at their highest the facts as asserted by the applicant reveal not arguable case to which the respondent should answer. For fuller expositions of the principles, see, for example, the summary dismissal decision itself, Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; and Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].
28The respondent is not called on to reply with evidence to the applicant's case at a summary dismissal hearing. At the full hearing the Tribunal had before it the evidence of the respondent's witnesses. It preferred their evidence in critical respects in relation to each of the incidents.
29The Tribunal accepted in the case of Incidents1 and 3 that there was conduct similar to that alleged by Ms Obieta. However it was not satisfied that crucial aspects of what was alleged had occurred (for example, in the case of Incident 1 Mr Compton in conducting the stand-up quiz had not confined his indications as to how was to sit down in the way suggested by Ms Obieta, and for example in the case of Incident 3 Mr Sullivan had spoken of hitting a person on the head with a baseball bat but the comment was not directed to Ms Obieta). In relation to the other incidents, it did not accept Ms Obieta's account, either declaring itself not to be satisfied on the balance of probabilities, or rejecting that any of the utterances attributed to Mr Sullivan had been made. On most matters, it preferred the evidence of the trainer, and gave significant weight on a number of disputed matters to the evidence of Ms Doueihi corroborating the trainers' accounts, and the corroboration afforded by the statements made by the trainers and Ms Doueihi in the interviews conducted by Mr Horton soon after the events in issue.
30In her submissions attached to each of the Grounds of the notice of appeal, Ms Obieta refers to evidence of hers, to parts of the evidence of the College's witnesses which she believes justified a different finding.
31A dispute with a finding of fact does not of itself raise a question of law. Nor is a tribunal of fact obliged in its reasons to recount and examine all of the evidence given by witnesses. There must be a defect affecting the reasoning process giving rise to a finding that is so great as to show that the Tribunal failed to discharge its duty to deal rationally with the evidence before it.
32There may be an error of law if, for example, its finding is based on no evidence, or no logically probative evidence, or it fails to have regard to critical evidence (see, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] per Allsop P, Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513 (Court of Appeal); or it makes an adverse finding without addressing significant uncontroverted evidence to the contrary: State Rail Authority of New South Wales v Earthline Constructions [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306); or it relies on irrelevant evidence (House v R [1936] HCA 40; (1936) 55 CLR 499).
33Provided these boundaries are not infringed, the trier of fact is immune from appeal on error of law grounds in relation to its findings of fact. A submission that the trier of fact's findings are against the weight of the evidence does not raise a question of law: see, for example, Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381 (Bell J).
34In our view, the Tribunal did not err in any of the ways described in its handling of its fact finding responsibility.
35We will not deal with each of the findings in detail. By way of illustration, we will refer to the Tribunal's approach to Incident 1. As we see it, this was a very significant event from the viewpoint of Ms Obieta, and it may well have been a trigger event for Ms Obieta's perception of what followed in Mr Sullivan's classroom in the period from 3 December.
36At para [5] the Tribunal referred to Ms Obieta's amended points of claim, and set out her description there of incident 1, as follows:
Incident 1: When taking the class on 29 November 2010, Mr Compton first asked students to introduce themselves. Ms Obieta told the class about her background. Mr Compton then conducted an 'in class' assessment. Mr Compton asked the entire class to stand up. He then asked questions and whoever gave the correct answer first could sit down. Ms Obieta says that regardless of whether the answers were right or wrong, Mr Compton allowed male and female students who answered a question to sit down. Although Ms Obieta gave correct answers, Mr Compton did not acknowledge that they were correct. Ms Obieta was left standing with the "bully male students". All male students except the leader of the "bully males" were told to sit down and Ms Obieta was left standing with the leader of the male bullies. Ms Obieta felt that something was not right and that Mr Compton had intentionally left her standing. Ms Obieta then sat down without being told she could do so.
37The Tribunal summarised Ms Obieta's evidence as follows:
23 She said that on 29 November 2010, she attended a class in Business Broking taken by Mr Compton (incident 1 above). He acknowledged and accepted answers to his question which were given by other students, inviting each to sit down as they gave their answer. He did not acknowledge her answers, or ask her to sit down. She remained standing with one male student, who she described as 'the leader of the bully boys'. It is common ground that there was a small group of unruly young males in this class. Though she did not describe the context of Ms Compton's activity, it is clear from other evidence considered below that he was conducting a quiz.
In the section dealing with Mr Compton's evidence, the Tribunal concluded as follows:
43 ... Even accepting that Ms Obieta was not invited to sit, there is no evidence to support any contention that Mr Compton failure to acknowledge any answer or invite her to sit was intentional, or intended to belittle her. The Tribunal finds that highly unlikely.
44 Mr Compton's apparent concession to Mr Horton that he was aware that eventually two students remained standing, one of whom sat of their own accord, is consistent with the account of Ms Obieta in her letter, but does not cause the Tribunal to doubt that he was, and remains, blind.
45 His account generally was internally consistent, and given in a straightforward manner. Where he did not directly recall an event, he readily conceded that fact. The Tribunal accepts his evidence. In particular, it accepts that he was blind, that he had not met Ms Obieta before 29 November 2010, that he could not identify her voice, and was unaware as to whether she remained standing, even if he was aware that two students remained standing, one of whom sat of their own accord. His evidence as to his usual practice is largely consistent with Ms Obieta's recollection of the class exercise, and it is likely that such an exercise was conducted in class on 29 November 2010. It is also consistent with Ms Doueihi's recollection, except in certain respects considered below
46 From the evidence of Ms Doueihi (considered below) it does seem that Ms Obieta was not invited to sit, and therefore that she was left standing until she decided to sit of her own accord. However, we are not persuaded that any failure to invite Ms Obieta to sit was intentional on the part of Mr Compton. For the reasons given, it is likely that he was unaware she left standing. There is no evidence to support a finding that her race formed any part of the reason for his apparent failure to invite her to sit or acknowledge her answer. For those reasons, the allegation of race discrimination on 29 November 2010 is not made out.
38In the section dealing with Ms Doueihi's evidence, the Tribunal said:
69 She agreed that there were some young males in the classes who were disruptive. She said that Mr Compton and Mr Sullivan made jokes from time to time to "refocus the males students' attention and to get matters back on track so that the rest of the students could get through the course content." ...
72 In relation to incident 1, she recalled that on 29 November 2010, Mr Compton conducted an in-class quiz during the Business Broking module, in which all students were asked to stand, and then to sit on giving a correct answer. She said she had no recollection of his failing to acknowledge Ms Obieta's answers, of failing to ask her to sit down, or of her being left standing with a male student. She did, however, concede to Mr Horton:
'that Mr Compton did not accept some answers from Ms Obieta but he did that to others as well. She says he did not single out her or anyone else.'
73 This appears to mean that he did not invite Ms Obieta to sit down, despite her having answered some questions. That gives support to that aspect of Ms Obieta's account.
74 Ms Doueihi's understanding that students were asked to sit on giving a 'correct' answer is not entirely consistent with Mr Compton's recollection. His practice, he said, was to ask students to sit regardless of the correctness of their answer. On that issue Mr Compton's account is the more likely to be correct for a number of reasons: he would be expected to know his usual practice; it is consistent with his aim of engaging and energising the class rather than conducting an assessment; there is no evidence that he intended to depart from his practice; it seems likely he would remember if he did on a particular occasion; Ms Doueihi does not specifically deny that students were asked to sit even when giving a wrong answer; and on the first day of the course she was probably not in a position to assess the correctness of all answers. Ms Doueihi's evidence does not support Ms Obieta's account that she was deliberately ignored.
39It will be seen that the Tribunal accepted that Mr Compton had engaged in classroom exercise that started with all students being on their feet, questions being asked in a quiz like way, and students being asked to sit down as the exercise unfolded (but that request was not dependent on whether the answer was right or wrong) and that Ms Obieta was the only female left standing for some time along with several males, and finally she was left standing with one other student. He was then told to sit down.
40In our view the way it dealt with the evidence going to this event does not disclose any error of law so far as the legal principles that constrain the fact-finding process.
41There is one aspect of the reasons in para [46] that might raise a concern. The Tribunal said:
There is no evidence to support a finding that her race formed any part of the reason for his apparent failure to invite her to sit or acknowledge her answer.
42It is well established, as Ms Obieta noted in her written submissions, that it is not necessary to prove a racist intent or a racist motive in order to succeed in a racial discrimination case, and the same principle applies to other areas of anti-discrimination law: see, for example, Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49; 103 ALR 513 at 520-1 per Mason CJ, Gaudron J, there dealing with Victorian legislation in similar terms to the NSW law under consideration here:
It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of".'
See also Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 (Weinberg J); appeal dismissed, State of Victoria v Macedonian Teachers Association of Victoria Inc (1999) 91 FCR 47 (FCFC); [1999] FCA 1287.
43While Waters was an indirect discrimination case, and not a direct discrimination case as here, its statement of the law is equally applicable to a case of the present kind. The 'material difference in treatment' must in some way be 'based on' the 'status or private life' of the complainant.
It is sufficient to show that the conduct in issue gave rise to unlawful discrimination even though that possibility never crossed the mind of the perpetrator.
44We agree with the respondent's submission on this point, that the above statement of the Tribunal is not one that reveals any misunderstanding of the relevant law, but is merely responding to the way Ms Obieta formulated her case, as set out in the amended point of claim quoted earlier. Further, we note that the evidence did not establish that Mr Compton knew of Ms Obieta's race, or that she was in fact left standing.
45In relation to the case against Mr Sullivan, we have noted above that the Tribunal was either persuaded, on balance, or was satisfied entirely that the utterances attributed to him did not occur, with one exception. The exception was incident 3. The Tribunal was satisfied that words similar to those considered by Ms Obieta to be hostile to her were uttered, but they were not directed at her.
46We will not set out here the detail of the Tribunal's analysis of the evidence on these matters. As with its approach to Incident 1, the Tribunal considered Ms Obieta's evidence, the trainer's evidence (here Mr Sullivan's) and any other relevant evidence, most importantly the accounts given to the internal investigator, Mr Horton.
47In our view, no errors of law are revealed by the way it went about examining the evidence.