FIRST BASIS OF THE MOTION: APPLICATION EXCEEDS AMBIT OF ORIGINAL COMPLAINT
7 It is common ground that the complaint to the Commission met the criteria stated in s 12(1) of the Amendment Act: the appropriate Commissioner had referred it to the Commission; the holding of an inquiry into the complaint had not started; and the complaint had not been withdrawn. Thus, under s 12(2), the President was taken to have terminated the complaint under s 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) as amended by the Amendment Act. Notice of termination was required (Amendment Act s 14) and such a notice was given. In consequence, the applicant was entitled to make an application to the Court alleging unlawful discrimination by the State (Amendment Act s 46PO(1)). Section 46PO(3) provides that:
"The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint."
8 No doubt it was intended that a terminated complaint should not be used to launch an application to the Court, effectively bypassing the procedures provided by the legislation, alleging discrimination other than that of which a complaint had been made or covering a course of conduct substantially wider - or beginning substantially earlier - than that initially complained of. At the same time, it must be recognised that the terms of s 46PO(3) suggest a degree of flexibility ("or the same in substance as", "or substantially the same") and a complaint, which usually will not be drawn by a lawyer, should not be construed as if it were a pleading: Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 188. Indeed, the initial complaint may be in quite brief and general terms, the detail being elicited in the course of inquiries by the relevant Commissioner: Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 94. It may well be that the ambit of a complaint is to be ascertained, for the purpose of s 46PO(3), not by considering its initial form but by considering the shape which it had assumed at the time of its termination. Counsel for the State contended that the "complaint" to be considered for the purpose of s 46PO(3) in this case comprised the letter of 10 February 1997 and nothing else. Although there is no need to reach a firm conclusion about it, there is in my view much to be said for the applicant's submission to the contrary.
9 In any event, the letter of 10 February 1997 itself states, as its subject matter, a denial of access to the disabled toilet. The particular complaint made arose from the discussion on 16 February 1996 and the alleged refusal of the principal and deputy principal, on that occasion, to provide a key or leave the toilet open. The stated context of the discussion, however, was that earlier meetings had been held and details of the applicant's disability and needs - particularly a need to have access at any time to a toilet within twelve seconds' walking distance - provided. It is evident that, though the particular subject matter of the complaint, as stated in the heading, was a refusal to provide access to the disabled toilet in the manner requested, the applicant's mother regarded information provided to the school, and consideration given to the applicant's needs during the period of her enrolment, as important background to the complaint. It is clear also that that is how the Commissioner viewed the complaint: that appears from her letter to the Director‑General of the Department of School Education in which she sought the comments of the Director-General on it.
10 There is no doubt that the affidavit lodged with the application to the Court alleges, as the unlawful discrimination relied on, substantially the same facts as those asserted in the letter of 10 February 1997. To the extent that the deponent gives evidence of earlier events, that evidence, its seems to me, covers substantially the same ground as the references, in the account in the letter of 10 February 1997 of the meeting of 16 February 1996, of the basis on which the principal and deputy principal were said to be well aware of the applicant's needs. There is an assertion in the affidavit that the principal had during 1995 refused to provide the applicant with access to the disabled toilet. If by that it was intended to raise, as a separate matter of complaint, refusals earlier than that originally complained of, it may be that the applicant would not, at the hearing, be permitted to do so. But the proceeding is not, in my view, to be wholly dismissed because - if it is the case - the application, though alleging the same discrimination as that originally complained of, also alleges similar discrimination at an earlier time. An affidavit in support of an application cannot, as a pleading can, be struck out in part. Equally, there may be a question, if at trial the applicant seeks to rely on certain of the evidence she has filed, of the relevance of that evidence; but that is a matter to be dealt with at trial, not on the present motion.
11 The submission that the application is not supported by the evidence filed, if the application is limited as the State contends it should be, relies on what is said to be an inconsistency between evidence given by the applicant's mother and an affidavit of the applicant's grandmother. Whereas the former characterises the refusal at the meeting of 16 February 1996 as final, the latter suggests that the principal indicated that the request might be given further consideration. But it is inappropriate at this stage of the proceeding simply to read the affidavits of the two deponents, assume that both will be relied upon at trial and accept the grandmother's affidavit both as the version which would be accepted and as supporting the conclusion for which the State contends.