Zygorodimos v State of Victoria [2004] VSC 143

Supreme Court of Victoria|2004-05-24|Before: CHIEF JUSTICE WARREN

APPEAL FROM TRIBUNAL - Appeal against an order of the Victorian Civil and Administrative Tribunal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 - whether Tribunal erred in law in finding that the applicant, a hearing impaired child, received tuition via the spoken word that being his preference - whether there was direct or indirect discrimination pursuant to s 37(2)(a) of the Equal Opportunity Act 1995 - appeal dismissed.

This is an appeal from orders of a Master made on 7 April 2004, refusing leave to appeal from the decision of a Deputy President of the Victorian Civil and Administrative Tribunal ("VCAT") dated 3 February 2004.

The applicant brought a complaint of impairment discrimination before VCAT under the Equal Opportunity Act 1995 against the State of Victoria, in its capacity as an educational authority, administering the school known as the Victorian College of the Deaf ("the College").

The applicant is nine years old and hearing impaired. With a hearing aid, usually a device known as an "RF unit", he is able to hear the spoken word. He is a student at the College, a government school catering primarily for hearing impaired students, which utilises both Auslan, being Australian sign language, and spoken word to teach students. It was not disputed that in this respect the College is a "bilingual" school.

The applicant's amended complaint before the Tribunal related to the amount of tuition received by the applicant both by way of Auslan, and via Auslan and the spoken word. Essentially it is alleged that the applicant received tuition predominantly through Auslan, which did not meet his communication needs, whereas the other students, who received all their tuition through Auslan, had their communication needs met.

Specifically, it is alleged by the applicant that he received significantly less tuition than his peers, at best about 10 minutes per 40 minute teaching period and at worst none, whereas his immediate peers received between 30 and 40 minutes. On this basis the applicant alleges both direct and indirect discrimination[1] pursuant to s 37(2)(a) of the Equal Opportunity Act 1995.[2]

The finding of the Tribunal was that, on the balance of probabilities on the factual matters alleged by the applicant, there was not less favourable treatment of him in comparison with other students at the College.

In summary, the Tribunal rejected the allegations of fact upon which the complaint brought by the applicant was based. The tribunal found that the applicant, to a significant extent, received tuition via the spoken word that being his preference. The Tribunal also found that the College does not teach other students solely by Auslan because it is a bilingual school.

The issue before the Court is whether leave to appeal should be granted under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. For leave to be granted, the applicant must satisfy the Court that there has been an arguable error of law on the part of the Tribunal; a real or significant argument to justify the grant of leave; and the prospect of substantial injustice in the absence of leave to appeal: Secretary Department of Premier & Cabinet v Hulls[3].

The key finding of fact complained of by the applicant is the finding by the Tribunal that there was no detriment to his education in the period February 2001 to December 2003 arising from the prevailing language of instruction. The respondent, on the other hand, alleges that the applicant has not adequately identified a question of law, the threshold requirement for the granting of leave. It is said that the applicant's questions of whether a particular finding of fact should have been made (ie, whether it was right or wrong), does not involve a question of law[4].

The applicant contends that a finding of fact may be dealt with as an error of law if it can be shown that the finding is not supported by the evidence, contrary to indisputable fact, not open on the facts, cannot be supported on any reasonable view of the evidence, or, has no basis. The applicant disputes the finding that the method of tuition was appropriate. It was submitted that the applicant, unlike his peers, required primarily the spoken word as the language of instruction, whereas the respondent provided mostly Auslan. This fact, it was argued, was established by evidence from both the parents and experts including a speech pathologist and an audiologist. It was also argued that the applicant used his RF unit either intermittently or not at all, despite his alleged need of the unit, to gain any benefit from his voice tuition and that the applicant received significantly less tuition than his peers with all his teachers. Finally, in this regard, it was submitted that there is significant evidence to show that the applicant could not understand Auslan and that there was no evidence provided to the contrary. These were the matters of fact that were disputed by the applicant and provided the foundation for the proposed questions of law, to the effect that the finding of the Tribunal was contrary to the evidence before it.

In addition, it was submitted for the applicant that the threshold for finding of discrimination pursuant to the provisions of the Equal Opportunity Act is not high and, therefore, there need only be a denial of the benefit in the provision of education for a breach of the provisions of the Equal Opportunity Act to occur. Finally, broadly speaking, it was submitted that the treatment of the applicant constituted a substantial injustice, namely, that the matter was concerned with the proper education of a child with a disability in the public education system and the finality of the ramifications of the order of the Tribunal below. On this basis, therefore, it was submitted that leave to appeal should be granted.

The applicant proposed a number of questions if leave to appeal was granted. A substantial component of the questions were concerned with the findings of fact of the Tribunal with respect to the method of tuition made available to the applicant. In other words, the extent to which the applicant received tuition via the spoken word (compared with Auslan). I was taken at some length through the evidence before the Tribunal. Without revisiting the evidence in its entirety I was satisfied for present purposes that there was extensive evidence before the Tribunal to support its finding that the applicant received tuition via the spoken word[5].

For present purposes I am satisfied that the findings of the Tribunal in respect of the mode or method of tuition provided by the college was open to the Tribunal on the evidence before it. I could not be satisfied, therefore, that the proposed questions challenging the findings of fact of the Tribunal raise real or substantial argument. Rather, they seek to re-visit findings of fact that were adverse to the claim of the applicant.

The applicant made further complaints and posed an additional question concerning the findings of the Tribunal with respect to an individual teacher of the applicant, Ms Lucy. The Tribunal found that in 2002 and until August 2003 the teacher spent the majority of her time teaching the applicant by voice, as distinct from Auslan. Again I was taken through extensive evidence in this respect. I observe that evidence was given by the individual teacher, Ms Lucy, before the Tribunal. I observe that she gave evidence before the Tribunal to the effect that she spent the majority of her time teaching the applicant by voice. The Tribunal accepted this evidence. In my view, for present purposes, there is no real or substantial argument with respect to the potential question posed. It is not for this court to substitute its own or a different finding of fact.

The applicant made further complaint and posed potential questions on an appeal concerning the understanding of the applicant of Auslan. I observe that the Tribunal found that the applicant could, to a certain extent, understand Auslan although it was acknowledged he was not proficient at it. The Tribunal, therefore, made a finding of fact in respect of the level of understanding of the applicant that was consistent with the evidence provided on behalf of the applicant before the Tribunal[6]. It seems to me, again for present purposes, that the questions posed with respect to the applicant's understanding of Auslan did not raise any real or substantial argument on a question of law.

The next category of questions potentially posed by the applicant concerned the usefulness of a hearing aid known as the "RF unit". The evidence of the teacher before the Tribunal was that the applicant was taught to a significant extent by way of voice without using an RF unit. There was also other evidence to the effect that the applicant could hear oral communications without the use of the hearing unit, the RF unit. I am satisfied, therefore, that it was open to the Tribunal to reject the complaint that the applicant required the use of an RF unit to hear oral communication. Again, I cannot be satisfied that the questions postulated raise any real or substantial argument on a question of law. To the contrary, the applicant seeks to challenge the findings of the Tribunal as to matters of fact.

Hence, thus far, the applicant by way of the proposed questions of law sought to challenge findings and conclusions of fact made by the Tribunal below. In the analysis of the evidence before me it is apparent that there was sufficient evidence before the Tribunal to make the findings that it did.

I turn then to questions of law proposed by the applicant that deal with other aspects. The applicant raised as a question of law that a requirement for full-time voice tuition was an integral feature of his impairment. This was specifically rejected by the Tribunal. I observe, for present purposes, that there was no evidence before the Tribunal that it was part of the impairment of the applicant that he required full-time voice tuition. Rather, it appeared to be a matter that was asserted on his behalf. At best, communication by way of the spoken word seemed to be the preference of the appellant. The Tribunal found as much and, further, that it was not part of his impairment. I note that in this respect the Tribunal took into account evidence that at the home of the applicant and elsewhere his parents communicated with him by way of voice. More significantly, the Tribunal found as a fact that the applicant was not treated less favourably than other students at the college. I am satisfied, for present purposes, that the question postulated by the applicant with respect to whether a requirement for fulltime voice tuition was a part of his impairment does not raise any real or substantial argument on a question of law.

The next matter raised by the applicant concerned a claim of direct discrimination. It was alleged that while other students at the college were provided with tuition via Auslan, which they required, the applicant was denied alternative, suitable tuition, by way of voice that suited his needs. The Tribunal provided a number of reasons as to its finding that the characterization of the treatment of the applicant did not constitute direct discrimination. It found that the college treated the applicant and the rest of his classmates differently but that he received one on one voice tuition when the rest of the class received tuition through Auslan. The Tribunal found that as a result of this different treatment no comparison could be made because the circumstances of the applicant and the rest of the class were not the same or similar. It seems to me that the approach of the Tribunal in this respect did not raise a question of law. The Tribunal determined a particular set of facts within "the same or similar circumstances" as required by the Statute[7]. This does not raise a question of law. It raises a question of fact: see Australian Gaslight Co v Valuer-General[8]; also, Australian Telecommunications Corporation v Lambroglou[9].

Nevertheless, the Tribunal embarked upon a comparison between the treatment by the college of the applicant compared with the treatment of other students in his class. Upon making that comparison the Tribunal held, as a matter of fact, that the comparison did not reveal less favourable treatment.

In a similar vein the applicant posed a question of law with respect to a comparison between the applicant and fellow students without his impairment or with a different impairment or attribute. The Tribunal was criticised for not finding the appropriate comparison. In effect, the Tribunal was criticised because the applicant said it failed to properly consider "in the same or similar circumstances" as set out in s.8 of the Equal Opportunity Act. I was taken through the evidence. It seems to me that the comparison alleged on behalf of the applicant was misconceived. The respondent put it this way, the treatment of a deaf child in a deaf school and the treatment of a child who is not deaf in a mainstream school is not a comparison of treatment in "the same or similar circumstances". The Tribunal rejected the comparison. I cannot see that there was an error of law. In any event, the determination by the Tribunal involved consideration and determination of a set of facts. Its findings constituted a finding of fact within the description set out in s.8 of the Equal Opportunity Act. It was, therefore, a finding of fact[10]; there is no real or substantial error that could be argued.

I cannot be satisfied, therefore, that the applicant has identified a question of law with any prospect of success. In accordance with the appropriate test, therefore, I am satisfied that leave to appeal should be refused. I will order accordingly.

[1] Sections 8 and 9 of the EO Act respectively.

[2] (2) An educational authority must not discriminate against a student - (a) by denying or limiting access to any benefit provided by the authority ...

[3] [1999] VSCA 17 at 335 per Phillips JA.

[4] State of Victoria v Bacon (1998) 4 VR 269 at 285.35, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 523.5.

[5] See affidavit of Sarah Rey of 16 March 2004.

[6] See the evidence of Mr Hopkins and Ms Zygorodimos.

[7] Section 8 of the Equal Opportunity Act.

[10] See Australian Gaslight Co v Valuer-General, ibid.

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