Zhang v University of Tasmania

facts 42 The primary judge provided a brief chronology of the Appellant's attendance at UTAS at [4] to [10]. Additional facts relevant to each ground of complaint were addressed separately; the Overseas Postgraduate Research Scholarship at [6] and [11] to [19] (ground 1 in the original application), the tuition fees at [23] and [24] (ground 2), the false suspicion of financial problems because of the Appellant's Chinese origin at [25] and [26] (ground 3), less favourable treatment at [28] to [43] (ground 4) and imputing "serious psychological problem" at [44] to [50] (ground 5). 43 For present purposes, it is sufficient to identify those facts relevant to the contention that UTAS terminated the Appellant's candidature. 44 In September 1999, an Annual Review of the Appellant's progress was undertaken. The Appellant's research topic was "A model for the establishment of Science Parks in Developing Nations in South-East Asia". Initially, her supervisor, Dr Dallas Hanson, concluded that the Appellant's "progress [had] been generally satisfactory" but that certain matters required attention. The matters specified were "Building of expertise in research methods and work on fluency and accuracy in written english". The report was signed by Dr Hanson and the Appellant on 8 September 1999. The report was then sent to the Head of School for his review and certification. 45 On 6 October 1999, and before the Head of School certified the Appellant's report in that form, Dr Hanson forwarded a memorandum to Dr Jim Garnham (who has been occasionally misspelt in the original proceeding and in the appeal as 'Garham'), the Acting Head of the School of Management in which he stated: I wish to highlight concerns about the well being of [the Appellant]. [The Appellant] has provided evidence of potentially serious psychological problems and is also finding considerable difficulty in adapting to the social demands of life as a post-graduate student in this University. In partial evidence of these problems I attach a copy of a letter recently sent by [the Appellant] to Professor Peter Dowling and (separately) to me. I lack the formal training in psychology and counselling essential in supervision of such a student and am therefore unable to continue in the role of supervisor to [the Appellant]. To continue would not be in her best interests. I also recommend that we urgently seek professional counselling for [the Appellant]. 46 The letter referred to was not in evidence. However, the next day, 7 October 1999, Dr Garnham sent a memorandum to Associate Professor Carey Denholm, Dean of Graduate Studies, attaching a copy of the 1999 Annual Review of Progress which had been signed by the Appellant and her supervisor Dr Hanson. The memorandum stated that "a number of events [had] been drawn to [his] attention by her supervisor and others that confirm a pattern of behaviour which require[d him] to change the recommendation" and now to "recommend the termination of the [Appellant's] candidature under Rule 70.13" of the UTAS Research Higher Degrees Handbook 1999 ("RHDH"). The memorandum went on to provide: Her supervisor has indicated that he is unable to continue in that capacity and the School does not have the required skills and capacity to provide alternative supervision. This advice is provided after consultation with senior colleagues within the school who support this recommendation. I must point out that the School has endeavoured to support [the Appellant] in every way possible and made it possible for her to participate in OECD Conference and in the STEP program for doctoral candidates at some considerable expense to the school. The level of disputation that has occurred both within the School and the University in relation to the question of a scholarship and sessional teaching have [sic] raised serious concerns and support the recommended action. 47 The 1999 Annual Review of Progress now provided that "the performance of the candidate [had] been unsatisfactory" and, by reference to the above memorandum, recommended termination of the candidature under rule 70.13 of the RHDH. Rule 70.13, entitled "Termination of candidature," provided in relevant part: The Chair may terminate candidature - … (b) if the supervisor and the Head of School report to the Chair that the performance of the candidate is unsatisfactory and recommend that the candidature be terminated. 48 At the relevant time, UTAS also published a "Code of Conduct in Supervision" which extended to supervision of candidates for higher degrees. Clause 1.4 of that Code provided that the supervision "involves concern and a measure of pastoral care for the candidate". The evidence of Associate Professor Denholm was that as Dean he had responsibility to ensure appropriate levels of pastoral care were provided and had a responsibility to supervisors and heads of schools to provide advice about the behaviour of candidates. As part of that role, Associate Professor Denholm offered candidates an opportunity to raise with him any matter about which they might be concerned and, at the conclusion of any meeting, might refer them for counselling. 49 On 12 October 1999, Associate Professor Denholm sent an email to the Appellant advising her he had received correspondence from the Head of School recommending that her candidature be terminated. The email went on to state that as required by Rule 70.13.2 of the RHDH, he was required to conduct a preliminary investigation of her candidature and, in order to do so, was required to meet with the Head of School, her supervisor and with her. 50 Subsequently, on 14 October 1999, a meeting between Associate Professor Denholm, Mrs Margaret Beasley, the Head of Student Counselling, Ms Phillipa Ormandy, the Executive Officer of the Pro-Vice Chancellor (Research) and the Appellant was held. As part of UTAS's pastoral care, Mrs Beasley was present to assist the Appellant to talk through some issues. At the end of the meeting, the Appellant agreed to meet with Mrs Beasley independently for assistance as she was very upset. 51 The behaviour of the Appellant in the present case included several occasions where the Appellant raised her voice at Dr Hanson and that, in one meeting between Associate Professor Denholm and the Appellant which lasted for at least an hour, "she became angry", "slammed paper down on the table in front" of him and was tearful and very upset. 52 At the conclusion of the preliminary investigation, Associate Professor Denholm wrote to the Appellant on 8 November 1999 outlining the history of the matter and the steps taken by him during the course of the preliminary investigation. The letter concluded: As the Head of School has indicated that the School can no longer offer supervision under same conditions as before; and under clause 7.1 and 7.2 of Rule 70, candidature must be conducted under a supervisor, I outline two options below for you to consider if you wish to continue your studies. 1. Continue your studies within the School of Management, under a set of strict conditions; (attached A) which given the extent of the relationship breakdown between you and the School, may not be feasible. 2. Transfer your candidature to another Australian University capable of offering supervision in your field. NB: (Should you decide to transfer your candidature, [UTAS] would refund the fees you have paid to date). Please see suggestions under B. I am required to inform you that under clause 13.3 (Rule 70) you have 14 days after receiving this notification to provide written comments to me about this recommendation. 53 Part B of the attachment specified Wollongong and Deakin as Australian universities with capacity and expertise in the Appellant's area. Part A specified the Conditions in the following terms: 1. Refrain from any further correspondence or discussion regarding the matter of your unsuccessful OPRS with University staff members. 2. Abide by all University and school regulations relating to procedures for higher degree candidature and use of university facilities (in particular with reference to copyright laws.) 3. Provide any draft research writing (including thesis work) in a clear, proof read form. 4. Limit contact and meetings with your supervisor to one half hour session a week (Thursdays 3.30-4.00 or some other mutually convenient time). 5. Refrain from dealing directly with School staff on matters concerning tutorial employment, dealing only with the Head of School. 54 On 13 December 1999, the Appellant responded in writing. After stating she disagreed with "many of the points raised" in the 8 November 1999 letter, she went on to say that "in view of [the] authoritative and final requirements", she felt that UTAS gave her no option other than to continue her PhD elsewhere and that she had decided to seek a transfer to another university. The following year, the Appellant transferred to Wollongong, being one of the universities suggested in the 8 November letter.

legislation 55 Any consideration of the issues raised on appeal must start with the legislation. The objects of the DDA are set out in s 3 and include: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability … : (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. 56 Section 22 of the DDA, headed "Education," provides, so far as is relevant that: (2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability … : (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment. (Emphasis added.) 57 "Educational authority" is defined in s 4 of the DDA as a body or person administering an "educational institution". "Educational institution" is defined in s 4 as including a university. "Disability" is defined in s 4 of the DDA as a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour and includes a disability that presently exists (sub-s (h)) or is imputed to a person (sub-s (k)). 58 Finally, "discrimination" is defined in s 5: (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability. (Emphasis added.)

analysis 59 There was no dispute that a claim of unlawful discrimination in contravention of the DDA requires the Appellant to establish: 1. she suffered from a disability within the meaning of s 4 of the DDA; 2. an educational authority discriminated against her; 3. on the basis of her disability; 4. by expelling the Appellant or subjecting her to any other detriment. 60 In relation to the second and fourth elements, UTAS will be found to have discriminated against the Appellant on the ground of a disability of the Appellant if, because of the Appellant's disability, UTAS treated or proposed to treat the Appellant less favourably than, in circumstances that were the same or were not materially different, UTAS treated or would have treated a person without the disability: s 5. 61 In the present case, the Appellant submitted that the first element of her DDA claim (disability) was made out by Dr Hanson's suggestion in his 6 October 1999 memorandum that she suffered from potentially serious psychological problems and Professor Denholm's recommendation that she seek counselling from Mrs Beasley, which gave rise to in effect an imputation that she suffered from a psychological problem or disorder. The alleged differential treatment was said to arise from UTAS's letter of 8 November 1999 (see above [52]-[53]) which the Appellant alleged constituted "constructive termination" of the Appellant's PhD candidature. That constructive termination was said to discriminate against the Appellant because UTAS treated her less favourably than UTAS would, in the same or similar circumstances, treat a person without the Appellant's disability. In other words, the Appellant contended that UTAS would not have sent a letter in the terms of the 8 November 1999 letter to a person without the Appellant's imputed psychological disability. 62 On the other hand, UTAS had responsibilities to the staff and to the Appellant. In evaluating the conduct of UTAS, these responsibilities cannot be ignored. Professor Denholm's sworn evidence was that he proposed the conditions because he was trying to find a way for the Appellant to continue her studies at UTAS if that was what she wanted. Professor Denholm considered that the ongoing disputation by the Appellant about the issues addressed by those conditions would make it almost impossible for the Appellant to continue her studies within UTAS and he was trying to prevent that from happening. In other words, the Respondents contended, and the trial judge accepted (Zhang v University of Tasmania [2008] FCA 516, [50]) that the conduct complained of should not be found to constitute an imputation of a psychological disability because it was undertaken with beneficent intent. 63 In the circumstances of this case, however, we do not think it is necessary to resolve either this issue or the issue of whether the 8 November letter amounted to constructive termination of the Appellant's PhD candidature. Instead, assuming without deciding that: 1. the suggestion that the Appellant attend counselling and that she suffered from "potentially serious psychological problems" constituted an imputation of a psychological disorder within the meaning of the DDA (contrary to the finding of the trial judge: Zhang v University of Tasmania [2008] FCA 516, [44]-[50]); and 2. the letter of 8 November 1999 amounted to the subjection of the Appellant to 'any other detriment' within the meaning of s 22(2)(c) of the DDA because it provided no meaningful alternative for her to continue her studies at UTAS, whether or not the letter constituted 'constructive termination' of her PhD candidature (again contrary to the finding of the trial judge: Zhang v University of Tasmania [2008] FCA 516, [3], [51]); the Appellant's discrimination claim would still fail because it cannot be said that UTAS would have treated a person without the Appellant's "disability" any differently. The reason is that the relevant comparator is a person displaying the same behaviour as the Appellant but without the disability, not a person without the disability and without the behaviour. 64 This was in effect the decision of the majority of the High Court in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, 97-103 (Gleeson CJ), 152-62 (Gummow, Hayne and Heydon JJ), 174-5 (Callinan J). Of significance to the present case is the manner in which five members of the High Court construed the DDA and, in particular, s 5 of the DDA as directing attention to the same circumstances involving the same conduct on the part of another person who is not manifesting that behaviour as a result of a disorder: at 100 (Gleeson CJ), 161 (Gummow, Hayne and Heydon JJ), 174-5 (Callinan J). To adapt the language of Gleeson CJ at 100, "[t]he required comparison is with a [candidate] without the disability, not a [candidate] without the [behaviour]." That assessment "requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken": Purvis at 99. As McHugh and Kirby JJ recognised (in dissent), everything turns upon identification of the relevant comparator; once it is accepted that "the appropriate comparator is not a student with behavioural problems, the case becomes a simple one": Purvis at 136. Needless to say, that statement holds just as true if the comparator is a student with behavioural problems. Rightly or wrongly, a clear majority of the High Court has now held, contrary to McHugh and Kirby JJ, that the appropriate comparator is another student with behavioural problems; it is not now open to the Appellant to reagitate that proposition in this Court. 65 Returning to the present case, it now remains only to apply the decision in Purvis to the facts. In the present case, one approaches the question of the alleged discrimination by asking if another PhD candidate had behaved in the same manner as the Appellant, the Appellant's treatment by UTAS was less favourable than the treatment the other PhD candidate would have received and if so, was that less favourable treatment because of (or on the ground of) the Appellant's disability? The answer to each question is no. 66 The first step is to consider the behaviour in question. It was not challenged below or on appeal that the Appellant's behaviour (eg slamming papers, crying, shouting, and arguing) was considered by UTAS to be disruptive. For example, Dr Hanson gave evidence that the Appellant was "antagonising everyone she came into contact with at [UTAS], not just University academic or administrative staff but student association people as well": Zhang v University of Tasmania [2008] FCA 516, [45]. Not only did the trial judge accept Dr Hanson's evidence, he noted: "Having seen [the Appellant] giving evidence, Dr Hanson's assessment does not come as a surprise to me. Ms Ormandy gave evidence that at a student function [the Appellant] was upset and distressed and threw a plate of food at her": Zhang v University of Tasmania [2008] FCA 516, [46]. The relevant comparator is therefore another PhD candidate manifesting disruptive behaviour to the extent that there was a worsening of relations between her and other university members generally and eventually a breakdown of relations with her supervisor. 67 The next step is whether the treatment of her by UTAS in consequence of that behaviour - namely, the imposition of conditions on her continued study and ultimately the constructive termination of her candidature - was less favourable than would have been given to others who acted disruptively in the same way but did not have a psychological disability. Regrettably, there was a paucity of evidence in this regard. Ideally, evidence ought to have been led, if available, of things such as: (1) what had happened in other cases where students (preferably graduate students) had manifested similar disruptive behaviour; and (2) UTAS policies for the handling of disruptive students and cases involving the breakdown of relations between student and faculty, especially the student's supervisor. On the latter point, there was evidence that the RHDH did make provision for the change of supervisory arrangements due to a clash of personalities, but unfortunately, no attempt was made to tender the relevant sections either in the trial court or on appeal. 68 In the absence of such evidence, the Court is left only with evidence of the relevant university personnel to the effect that they would have done the same thing with any other student in the same circumstances. It may be accepted that this evidence was less than wholly satisfactory. However, although the Appellant challenged UTAS's evidence as both self-serving and non-specific, the fact remains that it was not impeached by her either in cross-examination or by positive evidence of her own. In short, there is no suggestion in any of the evidence to support an allegation that UTAS would in fact have treated another disruptive graduate student more favourably than the Appellant. Accordingly, it cannot be said in the circumstances that the trial judge was plainly wrong (and here it must be acknowledged the deference that is due to the trial judge in matters of fact, particularly where his Honour had the benefit of seeing the Appellant give evidence viva voce and assessing her demeanour, as noted: Warren v Coombes (1978) 142 CLR 531, 551; Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 25 ALR 91, 97, 110; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479-83; SS Hontestroom v SS Sagaporack [1927] AC 37, 47) in accepting UTAS's evidence, which his Honour did implicitly in finding that there was no factual basis for a finding of discrimination: Zhang v University of Tasmania [2008] FCA 516, [3], [52]. 69 The answer to the next question - whether the treatment received by the Appellant was on account of her imputed psychological problems - follows from the first. If the Appellant was treated no more or less favourably than would have been another student manifesting the same or similar behaviour but without the disability then there is no relevant treatment which can be said to have been caused by the imputed disability. 70 For the foregoing reasons, the learned primary judge, in our view, did not err in finding that the Respondents' conduct did not constitute unlawful discrimination against the Appellant in contravention of s 22 of the DDA. Accordingly, we would dismiss the appeal with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup & Gordon.

Solicitor for the Appellant: FitzGerald and Browne

Solicitor for the Respondents: Australian Government Solicitor