FVN v Secretary, Department of Education [2023] NSWCATAP 301

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FVN v Secretary, Department of Education [2023] NSWCATAP 301 Hearing dates: 29 September 2023 Date of orders: 08 November 2023 Decision date: 08 November 2023 Jurisdiction: Appeal Panel Before: A Balla, ADCJ, Principal Member Dr R Dubler SC, Senior Member Decision: 1. Complaint is substantiated. Pursuant to s 45A of the Civil and Administrative Tribunal Act 2013 (NSW), the Appellant is appointed guardian ad litem in respect of her son's complaint. 2. Appeal allowed. 3. Set aside the orders of the Tribunal of 24 May 2023. 4. In substitution for the Decision and orders of the Tribunal, the Appeal Panel makes the following orders: (a) Pursuant to s 108(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Appeal Panel finds the complaint substantiated in whole. (b) The Respondent is ordered to pay the Appellant damages of $15,000 by way of compensation for loss or damage suffered by reason of the Respondent's conduct. Catchwords: HUMAN RIGHTS – discrimination – whether the Respondent discriminated against the Appellant on the ground of disability in declining to provide home assisted education – whether differential treatment – what was the correct comparator – whether education services are provided to both the child and the parents within the meaning of s 49M of the Anti-Discrimination Act 1977 (NSW) Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Education Act 1990 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Brindabella Christian Education LTD ACN 100 229 669 v Respondent XD 561 of 2021 [2022] ACAT 37 Collins v Urban [2014] NSWCATAP 17 Dionysatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 Donato v The State of New South Wales (Department of Education) [2022] NSWCATAD 36 Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 FHH v Port Stephens Council [2023] NSWCATAP 239 IW v City of Perth (1997) 19 CLR 1 Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 at 638 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 Watts v Australian Postal Corporation (2014) 222 FCR 220 Waters v Public Transport Corporation (1991) 173 CLR 341 Texts Cited: Nil Category: Principal judgment Parties: FVN (Appellant) Secretary, Department of Education (Respondent) Representation: Counsel: V Bulut (Respondent)