Pembroke School Incorporated v Human Rights and Equal Opportunity Commission [2002] FCA 1020 | Case summary

CONSIDERATION OF GROUNDS 31 In the document entitled "Amended Proposed Grounds to Seek Further Review of Decision of 23 March 1998" of HREOC, there are seven grounds. I shall deal with them in sequence as they are listed. 32 The first is "indirect discrimination". It is expressed in the following terms: "The findings of the Tribunal were not dealt with in the cross review of this matter. Despite the fact that irrelevant considerations had been taken into account. The second respondents were prevented from presenting these facts. French classes in 1995 were upstairs but not affected by a change of house. A computer was available in the library in 1995 not in 1994 when the second respondent was actually taking compulsory computer lessons. The inside stairs were as difficult access as the outside stairs." 33 In very brief terms, the allegation which the Commission was required to address was whether the School had imposed a condition that Ms F Cowell regularly attend classes which were located upstairs. She had been first allocated a home house which was located upstairs, before any question as to her capacity to use the stairs at the School to access the upstairs home rooms had been raised. In March 1994, the Commission found, her home group teacher had been alerted to the fact that she was having difficulties with the stairs. The Commission accepted that her home group teacher had then suggested that Ms F Cowell be transferred to another of the six home houses with home rooms on a ground floor section of the School campus, but that offer was rejected by Ms M Cowell. A similar offer was made in April 1994 but again rejected. The Commission did not accept the evidence given by Ms M Cowell about those conversations. At a formal meeting between the head of the middle School and Ms M Cowell early in term two of 1994, a further suggestion of a change of house was put but rejected, and later that year the acting head of that house (whilst the house master was on leave) again put that proposal but it was rejected. The head of the middle School put that proposal further in early 1995. 34 The Commission further found that the subject of computing was taught only upstairs during 1994, and that normal access to the computing class was by external stairs which were not suitable to be used by Ms F Cowell whilst she was on crutches during that year. The School offered her the use of an internal stairway, which it found could be used by her even when on crutches. I noted in the reasons for judgment of 11 November 1998: "[Ms F Cowell's] evidence was (as the Commission found) that she was not worried about computing, and that a computer was available to her in the library [downstairs]. The Commission declined to make any discrete finding adverse to the School in relation to computing classes. No issue based on that particular aspect is raised on this application." 35 Its findings of fact led the Commission to conclude that the School did not require Ms F Cowell to access the upstairs classrooms in order to avail herself of the educational services offered by the School. There was no requirement or condition imposed by the School upon her with which persons without her disability would be more able to comply: see s 6 of the DD Act. It did not therefore engage in indirect discrimination. 36 In the detailed contentions of the Cowells on this application, they assert that the use of the internal staircase was not offered to Ms F Cowell, contrary to the Commission's finding, and that she was unable to access the computing class upstairs because she could not negotiate the internal staircase. It is then contended, in terms of s 5(1)(e) and s 5(2)(b) of the ADJR Act that the Commission failed to take into account relevant considerations, namely that the inside stairs were also unsuitable for use by Ms F Cowell, and that a computer was not made available to her by the School in the library, also contrary to the Commission's finding. It is also asserted that the Commission did not make a finding on Ms F Cowell's claim that she could not access French classes during 1995 and so failed to adjudicate on a matter which it was required to determine. It is further asserted that Ms F Cowell was unable to attend history and geography classes in 1994 and 1995 because they were conducted upstairs, although there was evidence from the School that alternate downstairs classes were offered to her. Those matters are dealt with principally, but not exclusively, in the affidavits of the Cowells of 4 February 2002 and in the Amended Statement of Claim. 37 I do not consider that any of those matters could entitle the Court to re-open the case decided on 11 November 1998, or could lead to that judgment being set aside on the grounds of fraud or any other ground upon which the power to set aside the judgment might be exercised. They are attempts to relitigate, in some respects, the questions of fact which the Commission addressed. It decided that internal stairs were suitable for and available to Ms F Cowell. It accepted that Ms F Cowell had the opportunity of using the computer in the library during 1994 in lieu of attending computer lessons. The issue as to her access to French classes in 1995 was not specifically raised in the hearing the subject of the decision on 11 November 1998. The issue concerning access to history and geography classes was also not raised at that time. 38 As I observed in the judgment of 11 November 1998, it was contended on the part of the Cowells that the offer of the School to change home groups to a downstairs home group itself constituted indirect discrimination contrary to the Act. I concluded that the Commission's approach to that offer or those offers, which it found to have occurred, involved it regarding the offer as reasonable in the circumstances of the case and one with which Ms F Cowell was able to comply, thus bringing the matter outside both subs 6(b) and (c) of the DD Act. Ms F Cowell's attitude in declining those offers was taken into account by the Commission in reaching its view. There was nothing to indicate that the educational facilities offered in a downstairs home group were different from, or inferior to, those offered to the home group located upstairs to which Ms F Cowell was first allocated. 39 At the hearing before me, apart from those arguments, the Cowells complained only of two particular findings of the Commission relating to its conclusion that there was no indirect discrimination. The first related to the finding that the School had offered Ms F Cowell transfer to a downstairs home group on 17 March 1994, and the second to the finding that the School had not said that Ms F Cowell would be better off in another school. No further attack on the other findings of fact of the Commission relating to indirect discrimination was made, and no submission that it should have made additional findings of fact was made. 40 The Cowells now assert that those two matters were not raised before the Court on legal advice. They complain they were not "allowed" to fully exercise their rights of "appeal". They may be under a misapprehension about the nature of the application to the Court from the Commission's decision. It was not an appeal in which the Cowells were entitled to argue any matter of fact raised before the Commission. It was an application for judicial review of the Commission's decision under the ADJR Act. The available grounds of review are circumscribed. They are set out in s 5 of the ADJR Act. The review is not one as to the merits of the decision, but rather whether there has been in some way a failure to make a decision in accordance with law in all the circumstances: see e.g. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1980) 162 CLR 24 at 39. In Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186, Fox J at 188 said: "It is plain that under the Act in question this court does not have power to make a decision on the merits of the factual position for itself. It is plain that it is not invited or empowered under the Act to consider the facts for itself for the purpose of forming and declaring its own view thereon. Of course, in order to apply some of the provisions of the Act it is necessary to examine the facts quite closely, but this is not for the purpose of the court arriving at its own decision; rather is it to see whether the case comes within one of the specific provisions of the relevant sections of the Act." 41 The advice which the Cowells received may have been entirely appropriate. The issue as to the quality of the advice has not been fully ventilated, and I make no judgment about it. But, whatever the reason, the fact that certain matters raised before the Commission were not raised in the application before the Court, apparently based on legal advice, does not provide any reason why the Court should either allow the Cowells to re-open their case before the Court or should set aside its judgment. The circumstances, assuming them to be accurately stated by the Cowells, do not come within those which the authorities referred to above contemplate. I have not considered whether, if the Court were to address these contentions of the Cowells, they would have any real prospect of success. I do not need to do so for the reasons given. I note, however the interests of justice could only be served by setting aside the judgment by either of the means identified if, in addition, there were some real prospect of these contentions succeeding. 42 I note that the Cowells have filed further submissions on 21 February 2002 providing some authorities which are said to provide the examples of cases in which indirect discrimination was found to have existed. I do not think those cases take their claim further. If it were contended that, in the judgment of 11 November 1998, there were errors of law as to what constituted indirect discrimination, the appropriate course would have been to appeal. No appeal was instituted. 43 Ground two refers to "access to education" and reads as follows: "The Tribunal failed to make a finding with regard to failure to provide access. This failure to make a decision prevented the facts from being presented in our cross appeal so that Justice Mansfield would realize that the applicant had a reason for not wanting the second respondent to remain at the School." 44 The written contentions assert that the School failed to make itself readily accessible to Ms F Cowell with her disability. Reference is made to additions to School buildings planned in 1993, and commenced in February 1995, after the Cowells informed the School of Ms F Cowell's worsening physical condition in May 1994. It is contended that the School responded that it "could not be of assistance to Fleur" and advised the Cowells to look for another School. Reference is made to evidence before the Commission to that effect. It is also asserted that Ms M Cowell in June 1994 told the School that it should install a lift as part of its building program, but the School did not do so. She was told that the cost of the lift was prohibitive relative to the cost of the building project, but she disputes that. It is therefore claimed that the Commission failed to make a finding under s 23(1)(c) and s 22(2)(a) of the DD Act, and therefore failed to take into account a relevant consideration and failed to adjudicate on a complaint before it. 45 As to the first matter, the issue as to whether the head of the middle School had suggested in 1994 that Ms F Cowell would be better off placed in another School was determined by the Commission. It concluded that Ms M Cowell had misunderstood the comments made in the conversation giving rise to her complaint. The conversation included the topic of providing a lift to help Ms F Cowell gain access to upstairs classrooms. The Commission accepted the evidence of the head of the middle school that he said he did not know of any school in the neighbourhood which provided lifts, but that if Ms Cowell was able to find one then she may wish to consider transferring her daughter to that school. The Commission accepted that evidence. It rejected the suggestion that he had said that Ms F Cowell would be "kicked out", or that it was better for her to leave the School. One argument advanced at the hearing before the Court was that the Commission, in reaching that view, had failed to accord the Cowells procedural fairness. I rejected that contention. If I was wrong in doing so, the appropriate course was to appeal. There was no appeal. 46 The position is that the Commission made a finding of fact, challenged on the hearing before the Court but upheld, and not the subject of an appeal. Nothing has been shown in the light of the authorities referred to above to warrant the re-opening of the hearing, or upon which the judgment of 11 November 1998 could be set aside. In my view, the Cowells simply wish to re-argue a question of fact decided against them, even if they wished to present fresh evidence in relation to it. As I understand the affidavits in respect of this aspect, however, it is largely an attempt to recite and rehearse the same evidence which was given to the Commission. 47 It was not argued before the Commission that it was required to make a finding under s 23(1)(c) of the DD Act. There could be no basis upon which, on an application under the ADJR Act, the Commission could therefore be found to have erred in a reviewable way by not having done so. Ms M Cowell referred to the Notice of Cross-Review dated 5 May 1998 as identifying that issue. I do not think it does. More importantly, the Commission's reasons for its decision make it clear that a contravention of s 23(1)(c) of the DD Act was not asserted at its hearing. 48 The Further Submissions refer to certain cases concerning denial of access. As previously, I think they are but examples and do not advance the present application. If it were argued that, by reason of those cases, my decision on 11 November 1998 was wrong in law or in fact, the appropriate course was to appeal. No appeal has been instituted. 49 Ground 3 of the grounds of further review is entitled "harassment". 50 It reads: "The tribunal erred in relation to the complaint of harassment by [a teacher]. [The teacher] stated she could not remember what she said to the second respondent. Irrelevant considerations were taken into account." 51 The notice of contentions relates to an occasion on 1 March 1996, when the science classroom teacher allegedly made some insensitive comments to Ms F Cowell about her disability and her capacity to study the subject given the time she had been absent. It is then contended that the Commission erred in law in finding in respect of that communication that there was no harassment by failing to take into account relevant considerations: s 5(1)(e) and s 5(2)(b) of the ADJR Act. Ms F Cowell's affidavit recites the facts, apparently consistently with those given to the Commission. 52 As I recorded in the reasons for judgment of 11 November 1998, the relevant teacher gave evidence. The Commission concluded that Ms F Cowell had misunderstood what had been said to her by that teacher, and her complaint in that regard was not made out. The Commission's conclusion was not the subject of challenge on the application before the Court. Consequently, the present application seeks to raise an argument which was not argued on the initial application. The reasons why that matter was not argued on the initial application do not emerge. Although the affidavits complain of the nature of legal advice given to the Cowells prior to and during the hearing before the Court, there is no specific assertion concerning those conversations or why that particular matter was not then raised. In my view, the circumstances as now asserted by affidavit and in contentions plainly could not entitle the Cowells to have the application before the Court re-opened following the judgment or to have the decision set aside. The decision did not deal with the issue because it was not put before the Court at all. There is no application separately for an extension of time to seek judicial review of the decision of the Commission in that limited respect. Even if there were, leave would not now be given in light of the lapse of time, and because the material indicates that the Cowells in reality wish to re-ventilate evidence upon which the Commission made a decision on a matter of fact. They have identified no basis upon which the Commission's decision in this regard might be set aside under s 5 of the ADJR Act. 53 The fourth ground of review is described as "failure to provide goods and services". The ground refers briefly to the Commission's alleged failure to make any finding under s 24 of the DD Act. Thus, the contentions allege a failure to take into account a relevant consideration contrary to s 5(1)(e) and s 5(2)(b) of the ADJR Act and so a failure to adjudicate on a complaint before the Tribunal. The short answer is that a contravention of s 24 of the DD Act was not alleged in the original complaint to the Commission. Consequently, it was not dealt with by the Commission. In those circumstances, there can be no basis upon which it is now appropriate to re-open the Court's decision to enable the Cowells to ventilate a contravention of a provision upon which the Commission was not called upon to adjudicate. 54 I do not need to decide whether, as the School contends, the facts as alleged could not enliven ss 23 or 24 of the DD Act in any event because the complaint of the Cowells was directed to ss 6 and 22 of the DD Act, or because s 22 is a complete code in respect of discrimination on the ground of disability by an educational authority. 55 The fifth ground of review is described as "failure to provide a fair hearing". The particular complaints are as follows: "There were breaches of the rules of natural justice in that the Tribunal failed to follow procedural guidelines as set by the Human Rights & Equal Opportunity Commission for a hearing. The second respondents were unaware of the rules of natural justice at this time and at the time of the cross-review. This matter is now raised as the second respondents realize they did not receive a fair hearing. The second respondents were not made aware of the issues which the applicants intended to introduce (ie the note of the 27th February, 1996) and given the correct opportunity to reply and produce evidence related to these issues." 56 The detailed nature of that allegation appears from the notice of contentions. It is claimed that the Commission provided the Cowells with insufficient opportunity to present their case. After referring to practice notes of the Commission and its guide to parties, the Cowells complained that there "was not a balanced representation between parties" as recommended by the Commission because the School was represented by a Queens Counsel over the protest of the respondents. The second aspect of that claim is that, despite directions about the exchange of witness statements, the School did not provide all witness statements prior to the witnesses giving evidence and so the Cowells had to confront oral evidence without a full opportunity to consider it. Ms M Cowell complained of that process during the hearing, but the Commission permitted the hearing to proceed in that way. Consequently, it is alleged that the Commission failed to ensure that procedures required by law to be observed in connection with the making of the decision were not observed, so as to enliven the ground of review available under s 5(1)(b) [sic] of the ADJR Act, and that it breached the rules of natural justice in connection with the making of the decision so as to contravene s 5(1)(a) [sic] of the ADJR Act. 57 It was not a ground of their cross-application to the Court under the ADJR Act that the Commission had failed to accord them natural justice in the manner now presented. The issues before the Court on the initial hearing were twofold only. There was a specific complaint about the course of evidence concerning the conversation with a teacher on 17 March 1994 supported by a note of that conversation prepared by the teacher, which went to one of the complaints of harassment. The other complaint of procedural unfairness concerned the alleged absence of an opportunity to address the evidence of a conversation with the head of the middle school in which, Ms M Cowell claimed, she had been told Ms F Cowell would be better off at another school. 58 The issue concerning a note said by the teacher to have been recorded of the conversation dated 17 March 1994 was fully aired before the Commission. The note concerned a conversation about an offer of re-location to a downstairs house. It was contended that Ms M Cowell was denied the opportunity to put a material point about the unreliability of the note, because Commission staff had whited out a section of it. As I observed in my reasons for decision, Ms M Cowell submitted to the Commission that the teacher's evidence of the conversation may be unreliable and that the note itself was not a note of the conversation which the teacher had made. 59 The Commission was obliged to comply with s 83 of the Act. Section 83(1)(b) obliged it to give the Cowells a reasonable opportunity to call or give evidence and to examine and cross-examine witnesses and to make submissions. There was no dispute that the rules of procedural fairness applied to the decision-making processes of the Commission in the circumstances. I observed in my reasons for decision that the Commission has considerable scope to conduct its proceedings in an informal way, and is not bound by the rules of evidence: s 98 of the DD Act. In this instance, it proceeded by way of evidence by examination, cross-examination and re-examination. I concluded on the particular facts that it had not breached s 83 by failing to give a reasonable opportunity to the Cowells to cross-examine or to make submissions. I also concluded that there had been no breach of the rules of procedural fairness in the way the Commission had dealt with the evidence of the head of the middle school about the other conversation referred to. In my view, if the Cowells had wished to complain of those rulings, the appropriate course was to appeal. They have not done so. Subject to consideration of the specific claims based upon fresh evidence or fraud, nothing has been shown to warrant the present application, however understood, being granted. 60 It is apparent from the Commission's reasons and from the course of its hearing that it was sensitive to the disadvantage which Ms M Cowell on behalf of the Cowells might experience in conducting the hearing. The Commission took steps to minimise the disadvantage as much as it could, consistent with its obligation to be impartial. The Cowells had the opportunity of hearing the evidence of witnesses called by the School as it unfolded. The Commission offered the Cowells an adjournment of the hearing from time to time. It required the School to file written submissions in advance of the oral submissions, and required the School to present its oral submissions first. The so called imbalance of representation, and the process (which apparently worked imperfectly) of exchanging statements of proposed evidence in advance of oral evidence, was not specifically the subject of complaint on the application to the Court. In my judgment, it is inappropriate that the Cowells now be permitted to raise those issues. They do not justify the re-opening of the case or the institution of fresh proceedings, in the light of the authorities referred to above. 61 The sixth ground of review is described as "Bias". The proposed grounds of review describe that complaint in the following way: "A further breach of natural justice was the conflict of interest of the hearing. Commissioner. The Commissioner has a past professional association with the applicant. His judgement was biased towards the School. The Commissioner accepted the applicants' version of the second respondents medical state over that of the second respondents, her father and doctors. This matter was not dealt with in the cross-review as the second respondents legal advisors did not give advice." 62 It is explained in the notice of contentions that the Commission as constituted was a past president of the Uniting Church of Australia, and that the School had an affiliation with the Uniting Church so that the Commission as constituted had a significant interest in the welfare of the School. It is noted that the Cowells were informed by the Commission that the Commissioner was on the board of a "sister School" of the School interstate. It is complained that the Commission failed to disclose the affiliation with the Uniting Church so as to contravene s 42 of the Human Rights and Equal Opportunity Act 1986 (Cth). Section 42 provides: "42.(1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Commission shall, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Commission. (2) A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Commission and the member shall not: (a) be present during any deliberation of the Commission with respect to that matter; or (b) take part in any decision of the Commission with respect to that matter." 63 The conflict of interest alleged by the second respondents is not accommodated by that provision. The Cowells do not contend that the Commission as constituted had a direct or indirect pecuniary interest in the outcome of the proceedings before it. It is therefore not necessary to determine what effect a conflict of interest of a pecuniary nature, even if made out, would have on the outcome of the present application. 64 The complaint is more properly viewed as a complaint that asserted the Commission as constituted bore a social allegiance or affection toward the School by reason of its asserted association with the Uniting Church, and that that allegiance would lead a fair minded observer to conclude that the Commission would approach the Cowells' complaints with a mind closed to persuasion. 65 The Cowells also claim to have a reasonable suspicion of bias by reason of the Commission's allegedly failing to accept the evidence of Ms M Cowell in significant respects to that of witnesses called by the School, ignoring the evidence of expert medical witnesses, and allowing the hearing to proceed in a way that favoured the School. There is therefore said to be a breach of the principles of natural justice: s 5(1)(a) ADJR. 66 The affidavit of Ms M Cowell asserts that, prior to the completion of the hearing before the Commission, she informed her then solicitors that the Commission as then constituted: "Had a telephone conversation with a member of Disability Action regarding our case. The person was kind to me and had helped me. We discussed sensitive details of our case. He advised I should use this information at the hearing, but I did not. He would not have known that I did not present this information at the hearing. He told me he spoke with the Commissioner just after the hearing, well before the judgment." She deposes to her then solicitor advising her that it would be difficult to succeed in making a complaint against the Commissioner, and she decided not to make any trouble for the informant. The matter was not further pursued. Ms M Cowell further deposes that the Commission, at an inspection at the School, informally observed of knowing a person whose name was on a commemoration plaque. She raised with her then solicitors whether the Commission had an inappropriate connection with the School but was advised that the incident gave no reason to pursue the matter further. 67 Part of the information said to give rise to the appearance of bias was disclosed to the Cowells. Ms M Cowell deposes to being informed by her solicitors at the time that the Commission as then constituted had informed her then solicitors of its connections with the Uniting Church. At the time, she had no objections to him conducting the hearing despite that information. She now claims not to have fully understood those connections. The connections are said to be through the Commission as constituted being a former national president of the Uniting Church, and the School being under the auspices of the Uniting Church and the Baptist Church. She deposes to having thought that the background of the Commission as constituted was Anglican. 68 The fact is the Commission as constituted disclosed an association with the Uniting Church, clearly in the context that the School was or may have an association with the Uniting Church which would warrant consideration of whether the Commission as constituted should hear the matter and Ms Cowell at the time had no objection. It is now too late to raise any such objection. Those matters were discussed with her legal advisers prior to or at the time of the application before the Court. She also had been told through her informant at Disability Action of some other perceived role of the Commission as constituted which might have led to the appearance of bias on his part. She instructed her solicitors that she did not wish to get the person from Disability Action into any bother. She also complains that she felt coerced into not complaining. Having elected not to complain of ostensible bias on the part of the Commission as constituted during the Commission hearing, the Cowells would not normally be entitled to raise those matters on review to the Court. The fact is that they did not do so. They now wish to do so belatedly. The claim is made that: "The Commissioner's conflict of interest in the matter prevailed over his judgment. This bias towards the School has denied the second respondents a fair hearing. The evidence of the School was preferred over that of the second respondents despite the facts." The bias is said to have been demonstrated by the Commission permitting the School to have legal representation, and in failing to insist that witnesses for the School were not absent during the evidence of other witnesses (although Mrs M Cowell acknowledges that the Commission asked her whether she wished to have the hearing cleared of such people). 69 The School claims that any alleged breach of the rules of procedural fairness was the subject of cross-review and dealt with by the Court. No new material is said to have been identified to warrant the present application. As to bias, the School says that the Cowells have not identified any evidence to be adduced on any rehearing of the review to support the allegation of bias or conflict of interest on the part of the Commission as constituted. The School denies that the Commission as constituted had a connection with the School, that the School has "a sister School" in Perth, or that the School was under the auspices of the Uniting Church and the Baptist Church. It asserts that the School was formed from an amalgamation of Kings College (established by the Baptist and Congregational Churches) and Girton Girls School (a non-denominational Christian School). The Congregational Church subsequently became part of the Uniting Church. Pursuant to the constitution of the School, the only current roles of the Uniting Church are to elect a trustee to a body of eight trustees which then elects four members of the School council comprising 12 members, and to give directions as to the disposition of one quarter of any surplus assets upon the winding up of the School. 70 Even assuming the facts asserted by the Cowells are correct, it is not clearly apparent that the asserted connections between the Commission as constituted and the School are such, or might be such, as to lead a fair minded observer to reasonably believe that the Commission as constituted might decide the complaint other than on its legal and factual merits (see per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 648; [2000] HCA 63 at [8]. I do not think it is self-evident that a fair minded observer might reasonably apprehend that the Commission as constituted might not have brought an impartial mind to the resolution of the issues: see e.g. R v Watson; Ex parte Armstrong (1976) 136 CLR 248. 71 In this matter, the fact that the School disputes the facts asserted by the Cowells illustrates the desirability of concerns on the part of a party to any perceived connections between a party and a decision-maker, if known, being raised at the time. The true facts might be readily ascertained, and their implications considered. The failure of the Cowells to do so may be taken as a waiver of the right subsequently to object: Dickason v Edwards (1910) 10 CLR 243; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Vakauta v Kelly (1989) 167 CLR 568 at 572; even though they were unrepresented: Preston v Carmody (1993) 44 FCR 1. Whether there was such a waiver would depend on whether the Cowells had full knowledge of the relevant facts: Najjar v Haines (1999) 25 NSWLR 224. But there is no doubt that they chose, apparently on legal advice, not to raise apprehended bias as a ground of judicial review of the Commission's decision before the Court when the matters of which they now complain were fully known to them. 72 In those circumstances, I see no warrant for permitting them to re-open their application under the ADJR Act before the Court to argue what they might previously have argued but chose not to argue. As I have said, their concerns, even if raised before the Commission as constituted, may not have led the Commission to reconstitute to hear their complaints. This is certainly not one of those exceptional cases to which the authorities discussed above refer. Indeed, ultimately, it might be the case that the Cowells' complaint is prompted by the outcome of the hearing before the Commission having regard to the passage set out in [63] above, rather than from facts giving rise to a concern about impartiality which were learned only after the Commission's decision. 73 The seventh ground of review is entitled "Fraudulent documents". There are three allegedly fraudulent documents identified in the proposed grounds of review as follows: "1) A note dated the 17th March 1994 was accepted as evidence despite a denial of this conversation by the second respondent. New evidence has been found that was not available at the time of the hearing proves this note was manufactured for the hearing. 2) A teacher said she re-wrote evidence for the QC. The second note differs from the first but was accepted by the Tribunal as one note. Expert medical advice was ignored and that of the teacher accepted. 3) The Principal of the Middle School produced a computer list which differed from the 1995 diary of the second respondent. The second respondent stated she worked all year from her diary and had never seen this list before, or offered these classes. Her parents had not seen this list or been offered these classes for the second respondent." 74 The issue as to the note of the conversation on 17 March 1994 concerned the offer of a change of house to a downstairs classroom. The teacher concerned gave evidence of the conversation, refreshing her memory by reference to a photocopy of a page of a note of the conversation. Ms M Cowell disputed there was such a conversation. Her evidence before the Commission indicates that she did not recall any such conversation, but had it occurred she would have refused on behalf of Ms F Cowell any transfer to a downstairs house. Ms F Cowell was not a party to the conversation but recalls her mother telling her that the teacher "would hate to lose one of her chickens", although it is not clear whether she was told that following the conversation in March 1994 or a little later. The Commission sought the original note, and it was produced and the directly relevant section made available to the Cowells. The Cowells made a submission that there was no such conversation, and that the note of 17 March 1994 should be viewed "with suspicion". I concluded on 11 November 1998 that the Commission had not failed to comply with s 83 of the DD Act in relation to the issue, including in relation to the note of 17 March 1994. No appeal was instituted from that decision. It is now asserted that, subsequent to the Court's decision, Ms F Cowell's school diary has since been found in March 2000 and it proves that the teacher's note is "fraudulent". Ms F Cowell's diary shows her as having attended a doctor on 17 March 1994. Thus, it is contended, the note was manufactured to deceive the Court, making it appear that the School had offered Ms F Cowell a change of house much earlier than it had done so. 75 I do not consider that the additional material identified by the Cowells demonstrates clearly that the note of 17 March 1994 is a fabricated record. The diary of Ms F Cowell and the other material they have now assembled tends to show that she was at school on 17 March 1994 and left school about 11.30 am to attend a routine medical examination. It does not show directly that the teacher fabricated her note to the effect that Ms F Cowell had leg pain causing absenteeism and that a change of house was discussed on that day. The "fresh" information may have provided a further basis for challenging the reliability of the teacher's evidence, but her evidence could sit conformably with the fresh material. There may be other explanations. The conversation may have been either later or earlier in the day, or its date may have been mistaken. 76 In addition, I do not consider that the additional evidence, if adduced before the Commission, would probably have produced an opposite result on its inquiry. Even assuming that the Commission were not satisfied that the teacher had reliably reported such a conversation, it would have altered the factual scenario only in a temporal sense, and it would have done so in the context (as the Cowells now assert) that Ms F Cowell at 17 March 1994 was not having such difficulty as required the School to consider the possibility of a transfer to a downstairs home group. The issue is only of temporal significance because there were offers of a change of home group to a downstairs home group in April 1994 and early in term two of 1994 and subsequently. 77 In my judgment, the additional information (assuming that it could not have been procured by reasonable diligence by the Cowells for the Commission's hearing) does not show with any persuasiveness that the teacher's note of 17 March 1994 was fabricated for the purpose of misleading the Commission, or that it would probably have affected the outcome of the Commission's inquiry, including on the issue of indirect discrimination. 78 The second allegedly fraudulent document is a note of a teacher of 27 February 1996. It recorded a conversation with Ms F Cowell's father about a deterioration in Ms F Cowell's physical condition. The Cowells contend that its substance was an invention, and that it is not consistent with medical information at the time. The teacher gave evidence that the note had been re-written from an abbreviated record of the conversation. Those matters were put before the Commission. The material to which the Cowells refer is not recently discovered. In addition, it is not material which persuasively shows that the teacher's note of the conversation on 26 February 1996 was a fraudulent document, in the sense of showing that the teacher fabricated the document to support evidence which was not true. 79 I also do not think that the evidence to which the Cowells now refer, even if not available at the hearing before the Commission, would reasonably be expected to have affected the outcome of the Commissioner's inquiry, and certainly is not evidence which is likely to have produced an opposite result. It is part of the Cowells' claim, in this regard, that Ms F Cowell (who returned to the School at the end of February 1996) left the School at the end of term one because of the School's treatment of her, rather than because of her medical condition. Ms F Cowell's father did not, on the present motion, give any evidence to contradict the teacher's version of the conversation. The evidence on which the Cowells now rely does not demonstrate that the conversation to which the note refers did not take place, at least in substance as the teacher said. More significantly, the conversation was taken into account by the Commission in concluding that the School had contravened s 5 of the DD Act. It is not clear to me, in that circumstance, how it is now said that the outcome of this aspect of the complaint would have been different if no such conversation had occurred. 80 Finally on this aspect of the claims, the decision of 11 November 1998 set aside that part of the Commission's decision which determined that the School had contravened s 5 of the DD Act. In consequence, the apportionment decision of the Commission was also set aside. The issue as to whether the School had directly discriminated against Ms F Cowell was remitted to the Commission for reconsideration. The Cowells, therefore, have had the opportunity of re-ventilating the issue of what, if any, conversation took place on 27 February 1996. There would be no real point, in those circumstances, in permitting them to do so in relation to the initial Commission inquiry. Even if on the present motion they had otherwise made out a case that they should have been permitted to do so, I would not have granted their application in that respect for that reason. 81 The third allegedly fraudulent document concerns the computer printout of class timetables. The document indicated the availability to Ms F Cowell of history and geography classes downstairs. Ms F Cowell said she was not offered those classes, and studied history and geography alone in the library downstairs at the School. The Cowells claim the document is a fabrication. They had not seen it prior to its presentation in evidence to the Commission. 82 The difficulty confronting the Cowells in their present application concerning this document is that the issue as to the availability of classes to Ms F Cowell downstairs, and including the reliability of the evidence of the teacher concerned and the computer records, was aired before the Commission. There were features of it which were the subject of cross-examination at the hearing before the Commission. The only new material is the diary of Ms F Cowell, rediscovered in March 2000. Its contents are not of such significance in relation to the accuracy of the computer printout as to lead me to conclude that the computer printout was, or may have been, fabricated for the purpose of deceiving the Commission. There are explanations about how the contents of those two documents might intersect which involve no fraudulent conduct on the part of the teacher whose record it was. Nor does the diary lead me to conclude that the outcome of the Commissioner's inquiry might well have been different had it been available at the time. It would be but a piece of evidence which may, or perhaps would, have been used to contradict the evidence of the teacher concerned in some respects. Whether it would have lead to the Commission rejecting the teacher's evidence as unreliable is no more than speculation, as the assessment of his reliability was made not only upon the basis of the computer printout. 83 I have dealt with the claims about those three documents on the assumption that, if the Cowells could demonstrate by the re-acquisition of the diary of Ms F Cowell or in some other way that the Commission's decision was procured by fraud on the part of the School, and that the case fell within the principles discussed above, it would be within the power of the Court on this motion to re-open the ADJR application or to set aside the Court's judgment for the purpose somehow of re-enlivening the Court's power to hear the ADJR application, presumably invoking s 5(1)(g) of the ADJR Act. It is not self-evident that the Court could do so if the basis of the claim were the ascertaining of fresh evidence which did not go so far as to demonstrate the Commission's decision was affected by fraud. I also do not need to address whether s 5(1)(g) refers only to fraud on the part of the administrative decision maker.

Pembroke School Incorporated v Human Rights and Equal Opportunity Commission

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (28)

Cited By (6)