Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chi v Technical and Further Education Commission (No 2) [2013] NSWCA 15 Hearing dates: On the papers Decision date: 14 February 2013 Before: McColl JA; Barrett JA; Gzell J Decision: The notice of motion filed by the appellant on 18 December 2012 is dismissed with costs. [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: PROCEDURE - judgments and orders - amending varying and setting aside - application for order recalling judgment and setting aside orders because appeal decided on a ground on which the appellant was not heard - need to identify "comparator" when discrimination alleged - whether that need sufficiently recognised in the course of argument of the appeal Legislation Cited: Anti-Discrimination Act 1977, ss 17(2), 50(1)(c) Cases Cited: De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Consequential orders Parties: Johnny 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 Judgment 1THE COURT: Following dismissal of his appeal with costs on 17 December 2012, the appellant made application, by notice of motion filed on 18 December 2012, for orders that the judgment of this Court be recalled (and its orders vacated) so that the appeal might be redetermined. 2The appellant contends that he was denied procedural fairness because his appeal was determined on a ground on which he was not heard and on a factual basis that was not open on the evidence. 3The respondent to the appeal and the motion ("TAFE") acknowledges the Court's power to grant the relief sought by the notice of motion but submits that no occasion has arisen for the exercise of the power which it notes, by reference to De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215, entails for the appellant the "heavy burden" of showing that such an "exceptional course" should be taken. 4The appellant's complaint concerns paragraphs [29] to [36] of the reasons of 17 December 2012 which were in these terms: "29 The only part of the conduct alleged in the August 2004 complaint that might conceivably raise indirectly a matter of race is the particular example given of the repeated and continual criticism alleged to have been made by Ms McHugh from February 2004, that example being the statement 'You could not read English' allegedly made by her in front of the whole class. 30 It is a characteristic of people of many races that they cannot read English. The vast majority of persons who are born into societies where a language other than English is the native tongue cannot read English. It may therefore be taken to be a characteristic of persons of a great number of nationalities and ethnic or national origins that they cannot read English. At the same time, however, some persons born into societies where English is the native tongue and who have spoken English since infancy cannot read English. Problems of adult literacy in Australia and ongoing efforts to improve the reading skills of English-speaking adults in Australian communities may be taken to be notorious. 31 The general approach to be taken to questions of discrimination on particular grounds, such as race, was the subject of analysis by members of the High Court in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92. That was a case of alleged discrimination against a school pupil on the grounds of disability. The process to be engaged in is the same regardless of the type of discrimination that is alleged. The question to be addressed is whether the treatment that was in fact afforded to the particular person possessing the particular characteristic (such as race or disability) differed from that which would have been afforded in like circumstances to a person within a relevant comparator group. 32 There was a difference of opinion in the High Court as to how the relevant comparator group should be defined. The pupil concerned was excluded from the school because of violent behaviour produced by brain damage that he had suffered at birth. The brain damage was the disability. The majority held that the comparator group was violent pupils whose violent behaviour did not result from a disability (see Gleeson CJ at [11], Gummow, Hayne and Heydon JJ at [223] - [225] and Callinan J at [273]). 33 In the circumstances of the present case, therefore, the comparator group is students unable to read English whose inability does not result from race, ethnicity or national origin. 34 Let it be assumed, for the purpose of argument, that Ms McHugh did speak to the appellant in the presence of the whole class in the way he alleges, that is, that she said, "You could not read English"; and that that statement was believed by Ms McHugh to be a true statement warranted by her observations of the appellant in the course of teaching him. It is then necessary to hypothesise a TAFE student within the comparator group whose attributes are the same as those of the appellant except for race (but including, according to Ms McHugh's assessment, inability to read English), to place that hypothetical student in the position that the appellant occupied in relation to Ms McHugh and to determine whether that hypothetical student would have been addressed by Ms McHugh in the terms she used in addressing the appellant. 35 There can be no real doubt, to my mind, that Ms McHugh would have spoken to the hypothetical student in exactly the same terms as she spoke to the appellant. The ability to read English was an objective and well-based requirement for all students if they were to engage effectively in the study, examinations and other tasks involved in the particular e-commerce course. The course was conducted in English and the written materials that students were required to study were in English. The set assignments were in English. The examination papers were in English. A statement in the terms alleged would properly have been directed to any student unable to read English, regardless of the student's race, ethnicity or national origin. The statement was concerned with a proficiency that was an essential qualification for undertaking a course conducted in the English language and involving written materials of various kinds in English. It was the proper province of a teacher to raise with a student the teacher's perception that the student lacked that particular proficiency. A teacher doing so could not be regarded as acting on the grounds of race. 36 This assessment of the element of TAFE's alleged conduct consisting of Ms McHugh's statement "You could not read English", coupled with the fact that the balance of the August 2004 complaint went to matters having no conceivable racial connotation or basis, leads to the conclusion that the appellant did not, by communicating that complaint, allege acts of the kind referred to in s 50(1)(c)." 5Referring to paragraph [33] of the reasons, counsel for the appellant made the following submission on the motion: "10. The appellant contends that he was denied procedural fairness by the Court in making this finding. At no time was the appellant on notice that there was any issue in relation to a comparator. In particular: (a) it was not the basis upon which this issue had been determined adversely to him by the primary decision makers in the Administrative Decisions Tribunal or by the Appeal Panel of the Administrative Decisions Tribunal; (b) it was not an argument made by the respondent at any time in the litigation between the parties; and (c) it was not put to the appellant at any stage by the Court during the hearing of the appeal or at any time prior to judgment." 6The submissions continue: "11. Further, the finding of the Comparator is not open on the evidence. The appellant was not, and is not, unable to read English. In the Tribunal, it was not in dispute that the appellant could speak, read and write English. The unchallenged documentary evidence in the Tribunal clearly demonstrated that the appellant had previously successfully completed courses conducted in English by the respondent (Blue 135 to 138) one of which (Blue 135) was the entry point for enrolment in his then course (Blue 76V)." 7Counsel for the appellant then says that the question of an appropriate comparator was never raised by TAFE and that this was presumably because TAFE accepted that the comparator would be a student with qualifications similar to those of the appellant who was appearing to have difficulty understanding some of the conceptual aspects of the course but who, unlike the appellant, did not have English as a second language. 8The central question upon the appeal was as to the quality of the allegations made by the appellant in the August 2004 complaint - more particularly, whether any act alleged in that document "would ... amount to a contravention of" the Anti-Discrimination Act 1977. That was a question of law. There was no dispute that the only species of contravention that could be relevant was that referred to in s 17(2) of that Act, that is, discrimination against a student "on the ground of race" by denying or limiting the student's access to a benefit provided by the educational authority. 9The question was not whether TAFE had discriminated against the appellant on the ground of race (or at all). It was whether the appellant had made an allegation of an act amounting to discrimination on the ground of race. The inquiry was thus a hypothetical inquiry, being an inquiry into the quality of conduct that may or may not have actually occurred but was alleged. 10The August 2004 complaint alleged that TAFE had denied the appellant certain opportunities given to other students and treated him less favourably than other students; and that it had done so in circumstances and for reasons stated in the August 2004 complaint. Only one of the stated reasons was of such a kind that it could conceivably have caused the alleged conduct to partake of the quality of a contravention of the Act. The reason in question was that conveyed by the words allegedly spoken by Ms McHugh to the appellant: "You could not read English". 11Every question whether conduct (actual, assumed, alleged or hypothesised) amounts to discrimination "on the ground of" some characteristic necessitates a process of comparison. Discrimination entails differentiation. It is necessary to compare the treatment afforded to the person allegedly discriminated against with the treatment afforded (or that would be afforded) to some other person or persons; and to determine whether the particular characteristic was the source of or reason for the any differentiation established by the process of comparison. Counsel for the appellant acknowledged this in her oral submissions when she described "direct discrimination on the grounds of race" as "to treat someone less favourably". The word "than" naturally follows. The indispensable need to identify a comparator was thus recognised. 12Once an issue of "less favourable" treatment was recognised as relevant to the inquiry into the discriminatory quality of the conduct alleged in the August 2004 complaint, the identification of a relevant "comparator group" was simply part of the essential process of legal analysis that had to be undertaken in order to answer the question of law at the centre of the appeal. It was necessary to determine the quality of the conduct towards the appellant alleged by him in the August 2004 complaint; and in resorting to Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 as a basis for identification of that "comparator group" as students unable to read English whose inability does not result from race, ethnicity or national origin, this Court merely applied legal reasoning enunciated by the High Court of Australia in a case to which direct reference was made in the course of submissions (both written and oral) and which had been referred to in the decision under appeal. 13The appellant's counsel submitted upon the motion that the appellant was never on notice that there was any issue in relation to a comparator. That submission cannot be accepted. It does not recognise the essential nature of the case. Because the question of law before this Court went to any discriminatory quality of the conduct alleged by the appellant in the August 2004 complaint, there was, fundamentally and of necessity, an issue of comparison. Since differentiation is of the essence of discrimination, a process of comparison is an inevitable part of the decision-making process whenever the discriminatory character of conduct arises for decision. 14Identification of the relevant comparator was, in any event, canvassed in the following exchange between the bench and counsel for TAFE upon the hearing of the appeal: "GINTERS: . . . As your Honours have noted in arguendo with my friend the complaint which is lodged in August 2004 amorphously referring to 'a long period of discrimination and harassment' does not identify that that discrimination was on the base of race-- MCCOLL JA: Save to the extent that para 4 ascribes to a remark about Mr Chi's English speaking abilities to Ms McHugh. GINTERS: It is, with respect, a leap of faith to read that as satisfying the test of 50(1)(c). MCCOLL JA: I'm just saying that's how Ms Francois put it. GINTERS: I understand that and perhaps leap of faith is too unkind and I don't mean that with any disrespect. BARRETT JA: From your point of view that's the most vulnerable part of this document, isn't it? GINTERS: Yes, that's correct. BARRETT JA: So what do you say about that part of it, the statement you could not read English? I take it you're saying [it] involves too much of a leap of faith to get it to a racial content. GINTERS: Or to get it to the level of saying 'would amount' to a breach of the legislation that's correct. Firstly because it doesn't have the causal nexus with race and secondly-- BARRETT JA: Does that mean that inability to read English or ability to read English only poorly is not something that of its nature belongs only to people of certain races? GINTERS: It may well be, your Honour. BARRETT JA: There are plenty of people of various races who can't read English, even those whose native language English is. GINTERS: Yes, your Honour. The test is not 'could amount' or 'may amount' it's 'would amount' to a contravention of the Act. It's a short point but it's the point we make that that document read in its context under the heading of a subject 'Complaint of unfair mark' does not amount to a document which alleges that another person, namely Ms McHugh, has committed an act which would amount to a contravention of the Act." 15Counsel for the appellant did not refer to this in her submissions in reply. 16It remains to deal with the submission that the finding of the Court as to the comparator group was not open on the evidence (because the appellant was not and is not unable to read English). That submission raises a false issue. The personal attributes of the appellant simply did not arise. The only thing that was in issue was the quality of the conduct towards the appellant alleged by him in the August 2004 complaint (whether or not that conduct had actually occurred) and, in particular, whether that alleged conduct in the context of the alleged statement to the appellant that he "could not read English" entailed discrimination on the ground of race. It was entirely beside the point that, as a matter of fact, the appellant could or could not read English or had any particular degree of proficiency in the reading of English. 17The appellant has not made good his claim that the Court should, in the interests of justice and in the exercise of its discretion, take the exceptional course of recalling its decision, setting aside its orders and determining the appeal anew. 18The notice of motion filed by the appellant on 18 December 2012 is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2013