Chi v Technical and Further Education Commission [2012] NSWCA 421

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chi v Technical and Further Education Commission [2012] NSWCA 421 Hearing dates: 3 July 2012 Decision date: 17 December 2012 Before: McColl JA (at [1]); Barrett JA (at [2]); Gzell J (at [42]) Decision: 1. Appeal dismissed. 2. That the appellant pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: HUMAN RIGHTS - discrimination - racial discrimination - victimisation - student at TAFE alleges that he was refused enrolment in certain course modules because of a complaint made by him about alleged conduct of certain TAFE staff - whether alleged conduct complained of "would amount to" contravention of prohibition on racial discrimination - only potentially relevant alleged conduct consisted of statement by a teacher to appellant "You could not read English" - need to compare that alleged conduct towards appellant with conduct that would have been engaged in towards a member of the relevant comparator group - such group consists of students perceived by teacher to be unable to read English where the inability does not result from race, ethnicity or national origin - PROCEDURE - appeal - appeal confined to appeal on question of law - whether question whether conduct is contravention of statutory prohibition is a question of law. Legislation Cited: Administrative Decisions Tribunal Act 1997, s 119 Anti-Discrimination Act 1977, ss 4(1), 17(2), 50 Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Chi v Technical and Further Education Commission [2010] NSWADTAP 67 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Johny Chi - Appellant Technical and Further Education Commission - Respondent Representation: R Francois - Appellant P Ginters - Respondent Gilbert & Tobin - Appellant I V Knight, Crown Solicitor - Respondent File Number(s): 2011/34507 Decision under appeal Citation: Chi v Technical and Further Education Commission [2010] NSWADTAP 67 Date of Decision: 2010-10-11 00:00:00 Before: Patten D - Deputy President; Huntsman C - Judicial Member; Hiffernan N - Non-Judicial Member File Number(s): 061089