Federal Court of Australia

Chircop v Technical and Further Education Commission [2022] FCA 1015

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 22 April 2022 be dismissed.

2.    Leave to make an application to the Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) be refused.

3.    The originating application be dismissed.

4.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Jonathon Chircop claims to have been the victim of unlawful discrimination on the ground of disability perpetrated by the Technical and Further Education Commission (TAFE). He complained about TAFE twice to the Australian Human Rights Commission. After he made the first complaint, he also complained that he was victimised for doing so. Each of his complaints was terminated by the Commission. He now wishes to obtain relief against TAFE in this Court for contravening the Disability Discrimination Act 1992 (Cth) (DDA). Before he can do so, however, he must overcome two legislative hurdles. One is the requirement for leave to commence the proceeding. The other is the limitation period.

2    Mr Chircop filed his originating application on 22 July 2021. On 6 April 2022 he filed an interlocutory application seeking an extension of time. Mr Chircop’s filed two affidavits he affirmed on 6 April 2022 and 18 May 2022. TAFE opposed the orders sought, relying on an affidavit affirmed on 9 May 2022 by its in-house counsel, Steven Mark Chester. All the affidavits were read and neither deponent was required for cross-examination.

3    For the reasons that follow, the interlocutory application should be dismissed and leave to commence the proceeding refused.

Background

4    The following is an overview of the allegations and procedural history drawn from Mr Chircop’s second complaint to the Commission and his originating application, together with the other evidence upon which the parties relied. It is necessary to refer in some detail to the claims made by Mr Chircop and the context in which they emerged because the case he seeks to make in his originating application is based on an elaborate sequence of events and a litany of grievances.

Alleged discrimination

5    At all relevant times Mr Chircop was a student at TAFE’s Ultimo campus. He was enrolled in a Diploma of Live Production and Technical Services (Costume).

6    The story begins on 4 March 2019.

7    On his account, at around 6 pm that day, Mr Chircop left his evening class to visit the acting head teacher, Sandy Barnett. He confided in Ms Barnett that he was severely depressed and at times did not want to live. During their conversation the phone rang. Ms Barnett told the caller that she would have to call her back because she had “Jono here who’s suicidal”. Although Mr Chircop did not then know it, the evidence indicates that the caller was the Disabilities Coordinator. Mr Chircop was upset about Ms Barnett’s disclosure. In his first complaint to the Commission, he described it as a violation of his privacy. He said that Ms Barnett’s disclosure caused him to have “a non-violent breakdown in an empty classroom”. He burst into tears, expressing his concern to Ms Barnett that he would always be typecast as “Jono who is suicidal”. He then walked into an empty classroom, stood at the windows which he knew “opened wide enough”. Shortly thereafter, Ms Barnett entered the room. She tried to talk him down but was unsuccessful. She then went to “fetch” Mathilde Montredon, one of Mr Chircop’s teachers. Later still security, police, paramedics and others arrived. Mr Chircop claims not to have behaved violently during this incident, but admits to raising his voice (using “high modality to make a point”) and holding up a chair in front of him “to tell a male security guard to leave”.

8    A slightly different account appears in TAFE’s response to the first complaint sent to the Commission on 6 March 2020, apparently based on information provided by Ms Barnett. According to TAFE, Mr Chircop told Ms Barnett that he was going to commit suicide and, when the Disabilities Coordinator happened to ring while he was with her, she passed on that information. This caused Mr Chircop to run out of the room to a nearby window, open the window, and threaten to jump. Out of concern for Mr Chircop’s safety, police, ambulance officers, and TAFE security, were called. Mr Chircop later threw a chair in the direction of the security personnel.

9    Four days after the incident, Mr Chircop received an email from Rachel Elliott, TAFE’s Manager, Services and Customer Stakeholder Relations, seeking a meeting with him before he resumed his studies. Ms Elliott telephoned Mr Chircop in advance of the meeting. According to Mr Chircop, she told him that it related to a “history of violence” and “throwing chairs” but did not provide any further explanation.

10    The meeting was held on 12 March 2019 with a panel of four TAFE staff, including Ms Elliott. At the meeting Mr Chircop denied throwing a chair, but admitted to raising his voice to tell a male security guard to leave and holding up a chair in front of himself. TAFE advised Mr Chircop that it would contact him regarding the outcome of the meeting and the “History of Violent Behaviour” procedure (HOVB procedure).

11    Following this meeting, a determination was made that Mr Chircop enter into a “Student Behaviour Management Plan” to enable him to continue his enrolment at TAFE and that a second meeting take place to discuss the implementation of this plan.

12    The second meeting with the panel was held on 15 March 2019. At this meeting, Mr Chircop claims that issues relating to his conduct and behaviour in class were raised, including that he had mood swings, swore, used suicidal language loosely, banged loudly, was defensive, lacked concentration, spent too much time in the head teacher’s office, and walked out of class.

13    At a third meeting with the panel on 25 March 2019, Mr Chircop was informed that he could no longer complete the draping unit in which he was enrolled. He claims he was told by one of the panellists that there were concerns about him not being able to pass the course and that “people around you are finding it difficult to participate fully in the classroom as a consequence of your behaviour”. He also claims he was told that TAFE wanted him to study during the day when support services would be available.

14    At the meeting Mr Chircop was presented with a draft behavioural management plan. Later that day he signed what he understood was an amended version of the draft. The behavioural management plan applied for 12 months and required him, amongst other things, to modify his behaviour so that it was “measured and moderate”, not to respond negatively to constructive criticism, to refrain from using inappropriate language, to limit contact with the head teacher, and to “leave the classroom and campus once class has been completed”.

15    Mr Chircop claims that on 26 March 2019 the head teacher, Tracey Malvern, gave him a lesson plan setting out the second year units, he could complete, that he was again told he would not be permitted to complete the draping unit, and that “2020 is still only a possibility”.

16    Mr Chircop was upset about this decision and sought counselling from TAFE’s head counsellor, Paul Chandler. Mr Chandler became concerned for Mr Chircop’s safety and called an ambulance, leading to his “forcible” admission to Nepean Hospital for assessment.

17    On 28 May 2019, Mr Chircop had a meeting with Ms Malvern and others about the decision not to allow him to complete the draping unit. He said that Ms Malvern explained that the decision was made partly because of the lack of support services on Monday nights, when the class was held, and partly because of the concerns of the draping teacher, Ms Montredon, who had witnessed the incident on 4 March 2019. Mr Chircop claims that he was offered no alternatives to the draping unit.

18    On 14 October 2019, Mr Chircop was informed by Roslyn O’Dell, a costume teacher, that he would not be allowed to complete the millinery course he was undertaking because he had missed too many classes. He claims that he was unable to complete these classes because he had been “excluded from class” due to the HOVB procedure. He complained that Bronwyn Shocks, the millinery teacher, did not tell him of the decision herself. He said he “broke down” in Ms O’Dell’s office as the effect of the decision was that he would be unable to complete any of the second year units he was promised he could complete as part of the lesson plan offered on 26 March.

The first complaint

19    On 1 January 2020 Mr Chircop submitted a complaint to TAFE about the above matters. TAFE responded to his complaint by requesting “more information about the specific actions you consider would satisfactorily resolve the issues you have raised”. He then sought a meeting with a seven-member panel consisting of the “main people involved” and an acknowledgement of “the truth”.

20    On 8 January 2020 Mr Chircop lodged the same complaint with the Commission. The complaint comprised an email and two written statements. It was accompanied by photographs of the lesson plan and the behaviour management plan. The complaint was summarised by Mr Chircop in the following terms (without alteration):

This is the formal complaint detailing specific examples of how I was discriminated against and how there has been gross negligence that’s resulted in incompletion of most of my diploma. Ultimately, I want acknowledgment of the mistreatment that is genuine and not just agreeing for the sake of agreeing, and a change in approach to these kinds of situations, especially in a “history of violence” procedural where a student has not actually been violent. The aim of this complaint is to inform faculty of my treatment, and seek understanding for the parts I don’t, without being given falsities, and get answers for what has gone unanswered. I want to know 2020 won’t be a repeat of the year before, since I am now forced to do a two-year diploma over three, and there’ll be better solutions in regards to the flow of my learning so no hinderances occur the likes of which were seen in 2019.

21    He described his disability as “mental health”.

22    The complaint was accepted by the Commission on 10 January 2020. Five days later, the Commission notified TAFE.

23    TAFE provided its response to the complaint on 6 March 2020. It denied that it had discriminated against Mr Chircop on the basis of his disability, instead claiming that the HOVB procedure and the behaviour management plan were undertaken as a result of the incident on 4 March 2019 and as a result of other reports about Mr Chircop’s behaviour. It claimed that the procedure was adopted and the plan implemented just as it would have been for students without a disability. It stated that Mr Chircop’s disability was taken into account in implementing the HOVB procedure. On the question of adjustments or supports, TAFE maintained it provided “continued support to Mr Chircop throughout his enrolment … including support for his disabilities through teacher consultant and disability teacher consultant assistance (via tutorial support etc), and counselling services”. If TAFE were found to have discriminated against him, TAFE foreshadowed that it would have a defence under §10.4 of the Disability Standards for Education 2005 (Cth) (DSE) because the action it took “was taken for the purposes of protecting the health and welfare of TAFE NSW staff and students (including Mr Chircop)”.

24    Mr Chircop provided a written reply to TAFE’s response on 1 April 2020.

Alleged victimisation

25    Mr Chircop deposed that meanwhile, on 7 February 2020, he received a phone call from Karen May, Customer and Stakeholder Relations at TAFE, informing him that serious allegations had been made against him. Four days later, on 11 February 2020, he received an email from Ms May attaching a letter concerning alleged breaches of the TAFE NSW Student Discipline Policy (2013) during 2019 and most recently on 3 February 2020.

26    The letter contained a series of allegations against Mr Chircop, including that he had breached the following clauses of the Student Discipline Policy in the manner indicated below:

4.5.11 any aggressive, abusive, threatening, intimidating or violent behaviour (including through the use of electronic devices or social media).

The allegations include:

•    Humiliating and intimidating other TAFE NSW students and staff by making belittling and demeaning comments

•    Excluding other students from classroom-related events and discussions

•    Angry outbursts, and directing profanities and inappropriate language to other TAFE NSW students.

•    Acting to isolate a student from other class members by stating they were not trustworthy.

•    Repeated inappropriate comments about other students including, but not limited to; teacher’s pet, sleeping around, drug user

•    Regular disdainful and aggressive looks, including:

°    Failure to respond to teacher and staff greetings

°    Scowling and directly pointing at individuals in the classroom

•    Persistent and unjustified criticism of others, such as making continual remarks intended to humiliate over minor mistakes

•    Rude and directed Facebook posts against other students

4.4.4 use of inappropriate or offensive language

The allegations include:

•    Making comments about the physical appearance of students’ breasts in front of multiple people and refusing to stop after being asked.

•    Making derogatory remarks about students including:

°    Calling two students “fucking bitches” on multiple occasions and specifically in term 3 in a student workroom

°    Comparing a student to a “drug addicted prostitute or stripper” and suggesting they “worked on a street corner”

4.5.22 wilfully obstructing or disrupting any TAFE NSW operations, official meeting, ceremony, teaching environment, class, examination or other activity

The allegations include:

•    Failing to respond to teacher and staff questions or instruction including but not limited to refusing repeated requests to remove headphones in the classroom

•    Raising your voice inappropriately to staff and students

•    Repeatedly leaving a classroom when directed not to do so and disrupting others in the learning environment

27    The letter sought a response by 4 March 2020 and advised Mr Chircop that he was not permitted to attend any TAFE campus until a review had concluded and the allegations determined.

28    Mr Chircop replied within two hours. He variously denied or tried to justify or contextualise the allegations, said he was not given enough information to respond, and made allegations against other students.

29    On 5 March 2020, Ms May wrote to Mr Chircop informing him of the outcome of the review. She advised that each of the alleged breaches of the Student Discipline Policy had been substantiated (aggressive, abusive, threatening, or violent behaviour; use of inappropriate or offensive language and wilfully obstructing or disrupting any TAFE NSW operations etcetera), but some allegations were considered to be unfounded or unsubstantiated due to insufficient evidence. She told him that the penalty imposed was exclusion from all TAFE campuses for a period of six months, noting that his adverse behaviour had persisted despite the fact that he had agreed to the behaviour management plan in March 2019 and to entering into a new behaviour management plan when the exclusion period came to an end.

30    On 12 March 2020 Mr Chircop lodged an appeal with Paul Spencer Williams, TAFE’s Deputy Regional General Manager. On 26 March 2020, he participated in a teleconference with Mr Williams to discuss his appeal. Mr Chircop claims that during that call he was told that he would be blocked from accessing TAFE counselling services. He participated in a second teleconference regarding his appeal on 22 April 2022. Mr Chircop claims that during both calls he was not given a fair opportunity to present his case.

31    On 6 May 2020 Mr Chircop was advised that the Committee had decided not to interfere with the findings of the review but would vary the penalty by allowing him to enrol in a single online course on certain conditions, effectively setting aside the six-month exclusion from TAFE. The conditions involved agreeing to, and complying with, a behaviour agreement and management plan and continuing to work with student support services as necessary to help him catch up with other students and/or to support his learning generally. He enrolled in a draping unit and a theory unit for the major project but elected not to attend classes in person because, as he put it, he felt uncomfortable. He claims he was never contacted to explain his non-attendance “the way other absent students are”.

Amendment to first complaint

32    On 6 October 2020, Mr Chircop submitted a statement to the Commission including additional allegations of unlawful discrimination and victimisation against TAFE in the period up to 3 September 2020. He alleged that TAFE had victimised him, contrary to s 42(2)(f) of the DDA, by making “fabricated or exaggerated” allegations that he had breached the Student Discipline Policy in response to his complaints in January 2020. He claimed to have suffered anguish and humiliation from the disciplinary process. He felt he was treated differently from other students and not given a fair opportunity to respond to the allegations.

33    On 9 October 2020 a delegate of the President of the Commission granted Mr Chircop leave, pursuant to s 46PA of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), to amend his complaint to include the statement submitted on 6 October 2020.

Attempted conciliation

34    On 6 November 2020 Mr Chircop informed the Commission that, unless all members of the panel from March 2019 (and certain other specified staff members) participated in a conciliation conference, he was not willing to participate and would press for his complaint to be terminated so that he could commence legal action.

35    On 10 November 2020 the Commission wrote to TAFE and observed that, unless it agreed to Mr Chircop’s request, the delegate did not believe that the matter could be resolved and was prepared to terminate the complaint as Mr Chircop had requested.

36    On 12 November 2020 TAFE responded stating that it was agreeable to a conciliation, but that only two staff members would attend. It accepted that, if Mr Chircop was not agreeable to this, the complaint should be terminated.

37    The next day, the Commission wrote to TAFE, advising that, as the parties were not able to agree on the conciliation, the complaint would be referred to the delegate for termination.

Commission’s termination of first complaint

38    On 17 November 2020 the delegate terminated Mr Chircop’s complaint under s 46PH(1B)(b) of the AHRC Act on the basis that there was no reasonable prospect of the matter being settled by conciliation.

39    The reasons, which were furnished to both parties, contained the standard advice that the person affected by the alleged discrimination could apply to this Court or the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) within 60 days of the date of termination to have the allegations decided. But Mr Chircop made no such application.

Further alleged discrimination and victimisation

40    Meanwhile, on 2 November 2020, Mr Chircop lodged a complaint with TAFE against one of the other students in his class. He complained that the student had used inappropriate and derogatory language throughout 2019 and early 2020.

41    On 6 November 2020 TAFE advised Mr Chircop that he was required to raise the complaint with his head teacher, Ms Barnett, first and accordingly the complaint had been passed on to her. TAFE informed Mr Chircop that Ms Barnett would gather further information about the complaint from him and other students. On 10 November 2020 Mr Chircop met with Ms Barnett and another staff member to discuss his complaint. Mr Chircop claims that Ms Barnett told him that the issues he had raised were “completely inappropriate” and that she was dealing with them “right now”. In an email on 12 November 2020, Ms Barnett said that she had raised with the student two of the complaints that involved breaches of student policies.

42    On 19 November 2020, during an evening draping tutorial, Mr Chircop claims that he became noticeably upset and anxious after he was criticised by the teacher for his work. The teacher asked Mr Chircop if he wanted to call anybody and he declined, instead leaving to wash his face in the bathroom. On his return, he noticed that Ms Barnett was in the classroom. He said that he did not feel comfortable being around her, to which Ms Barnett allegedly responded: “Well then pack up your things and leave”. Mr Chircop said he replied: “Do not speak to me like that; how dare you”. Ms Barnett then left the room and said she would call security. Mr Chircop claims that when she returned she told him that “multiple reports have come from all over about you making people walk on eggshells around you”. In his statement, Mr Chircop noted that no-one might have been around at the time to help him because it was an evening class.

43    On 23 November 2020 Mr Chircop received a letter from Ms Elliott concerning allegations that he had breached the Student Discipline Policy on 16 and 19 November 2020 by engaging in “abrupt, demanding and aggressive” communications with a teacher during class. The allegations included disrupting the functions and duties of the teacher, “scream[ing] at the Head Teacher”, calling his teacher’s integrity and professionalism into question, engaging in intimidating and hostile behaviour, and claiming that his lack of support from TAFE was the reason for his repeated outbursts of anger and disruption. The letter stated that he had been formally warned about such behaviour in the past and that “[m]ultiple or repeated incidents of misconduct may be viewed more seriously than a single offence”. He was given two weeks to respond.

44    In a written response, Mr Chircop claimed that the allegations were “vexatious and equivocal” and that, even if his tone was intimidating and hostile, so was Ms Barnett’s.

45    On 8 December 2020, Mr Chircop attended a meeting with Ms Elliott and the Head of Skills for Creative and Design Ideation in Fashion Technology, Richard Cass. At the meeting Mr Chircop says he denied the allegations against him. He claims that Mr Cass told him that it did not sound like he was “able to moderate [his] behaviour very well” and that he had a “distorted view” of the situation. He also claims that Ms Elliott told him there had been concerns about is behaviour in 2019 but that these were not passed on to her by teaching staff until 2020.

46    On 18 December 2020, TAFE concluded its investigation into Mr Chircop’s behaviour. It found that he had committed a breach of TAFE’s Student Discipline Policy, substantiating all the allegations that had been levelled against him. It imposed on Mr Chircop a 12-month exclusion from all TAFE premises and required that he undertake a history of violence assessment before he could be accepted into any further “enrolments”.

47    On 18 January 2021 Mr Chircop lodged an appeal against the findings and penalty. He complained that TAFE’s investigation process was “not thorough”; that the penalty imposed was disproportionate to the severity of his conduct; and that other students who had committed similar breaches of the Student Discipline Policy had been treated differently. On 3 February 2021 he sent a supplementary letter in support of his appeal containing further allegations against other students in his draping class.

48    On 8 February 2021 Mr Chircop’s appeal was dismissed. The letter notifying Mr Chircop of the decision stated that he had “failed to provide any evidence that [he] had not repeatedly displayed standards of behaviour and student conduct” that breached the Student Discipline Policy. TAFE found that Mr Chircop had not established that the penalty imposed was excessive or inappropriate and that the behaviour of the other students had been “investigated and action taken as was appropriate”. TAFE informed Mr Chircop that the appeal decision was not subject to any further review and that he must comply with it. It advised, however, that if he was dissatisfied with the decision, he could contact the NSW Ombudsman.

The second complaint

49    On 16 February 2021 Mr Chircop lodged with the Commission a second complaint against TAFE claiming disability discrimination on the basis of his “mental health” and victimisation. On the complaint form, Mr Chircop wrote:

I have previously put in a complaint about TAFE before, but it was advised to me to make another complaint to add in additional further obvious discrimination I have been subject to for legal purposes. It is all a cohesive package. That is the only way I can present my claim, both the history and the current issue, for the HRC to accept the matter. All is explained in the attached document.

50    A lengthy statement attached to the complaint raised substantially the same grievances as his first complaint to the Commission, but added further claims of discrimination and victimisation arising from November 2020, as discussed above at [40]–[48].

51    Mr Chircop pointed to the following matters in his statement as highlighting either direct or indirect discrimination by TAFE:

(a)    a “discriminatory comment” made by a substitute teacher to Mr Chircop that he “can’t do this course to do drag and you can’t make things for yourself” (at [5] of his statement);

(b)    Ms Elliott’s email and comments to Mr Chircop on 8 March 2019 indicating that he could not return to class until a meeting was held following the incident on 4 March 2019 (at [14]);

(c)    the allegations against Mr Chircop of misbehaviour raised by the panel at the meeting on 15 March 2019 (at [17]);

(d)    statements made to Mr Chircop at the meeting with the panel on 25 March 2019 that he could not complete the draping unit; must limit contact with the head teacher; and should study during the day (which he stated “cause[d] an unnecessary detriment” to his studies) (at [21], [23]–[24]);

(e)    the requirement for him to sign the behaviour management plan on 25 March 2019 which he claimed was “unfair” and implied he was a risk to students and staff (at [25]-[26]);

(f)    the events of 26 March 2019 when he was given a lesson plan for second year unit options, told he could not complete the draping unit, or his major project and was “forcibly” admitted to hospital (at [27]);

(g)    the comments made to him at the meeting on 28 May 2019 that he could not complete the draping course partially due to the lack of available supports on a Monday night and the failure to offer him an alternative to the draping unit (at [28]–[30]);

(h)    the advice that was given that he could not complete his millinery course because he had been excluded from previous classes due to the HOVB procedure (at [32]);

(i)    the phone call to him on 7 February 2020 in which he was told that there were serious allegations against him and he could not return to class until they were investigated (at [36]);

(j)    the decision, made on 9 March 2020, to exclude him from all TAFE campuses for six months, despite his mental health issues (at [48]);

(k)    TAFE’s written response to the first complaint (at [49]);

(l)    the statements to him on 26 March 2020 that he would be blocked from accessing TAFE counselling services, which contradicted previous assurances and “reneg[ed] on [his] right as a student” to access counselling under TAFE’s policies (at [51]);

(m)    not being given a fair opportunity to present his case during the appeal of the six month exclusion decision (at [54]);

(n)    the decision to set aside the six-month exclusion but not to revisit the findings that he had breached the Student Discipline Policy (at [58]);

(o)    never being contacted to explain why he was not attending classes in person “the way other absent students are” (at [59]);

(p)    the email sent to him on 6 November 2020 regarding his complaint to TAFE about the behaviour of a student which advised that Ms Barnett would investigate the complaint (at [63]);

(q)    the difference in the punishment given to another student about whom he had complained and the punishment he received (at [66]–[67]);

(r)    the incident with Ms Barnett on 19 November 2020 and the subsequent allegations of misbehaviour made against him, claiming that Ms Barnett “reneged” on his right as a student to access counselling and highlighted a “double standard” and that the allegations “overstate the nature of what in fact happened” (at [69]–[70], [72]–[73]);

(s)    the comments of Ms Elliott and Mr Cass at the meeting on 8 December 2020 (at [76], [78]–[79], [81]);

(t)    the decision made on 18 December 2020 to ban him from all TAFE campuses for 12 months and to require him to undertake a history of violence assessment before being permitted to enrol in any future courses (at [85]); and

(u)    the dismissal of his appeal from the 12 month exclusion decision which rejected his concerns regarding the treatment of other students who had allegedly engaged in similar misconduct (at [87]–[88], [91]–[94]).

52    Mr Chircop also alleged that TAFE breached the Disability Standards by not providing reasonable adjustments for his disability.

53    Mr Chircop claimed that he was victimised “as a result of asserting [his] rights as a student with a disability”, contrary to s 42(2)(f) of the DDA. He claimed that, after he made complaints to TAFE and the Commission in January 2020, the allegations of misbehaviour were raised against him, leading to his exclusion from campus which put a financial strain on him and caused him anguish and humiliation. He noted that, despite concerns about his behaviour in 2019, the allegations were only raised against him in 2020 after he complained to the Commission.

54    On 19 February 2021 the Commission wrote to Mr Chircop advising that most of his second complaint appeared to contain the same subject matter as the first complaint. Mr Chircop replied three days later, contending that the context of the entire statement was necessary and, in any event, since the time to file an application in respect of the first complaint had “already long passed”, he had “no other option” but to make the second complaint. The Commission accepted the complaint on 24 February 2021 “in full”.

55    On 5 March 2021 the Commission requested further supporting information. Mr Chircop forwarded to the Commission a copy of the email from TAFE of 6 November 2020 concerning his complaint against the other student; the 23 November 2020 letter from TAFE containing the allegations against him (Mr Chircop) and his reply; TAFE’s letter of 18 December 2020 setting out its findings and punishment in relation to the allegations; his appeal request; and the letter dismissing the appeal.

56    In response to the complaint, TAFE advised the Commission that it would provide no further comments and did not consider that there were “prospects of resolution via Conciliation”.

57    On 30 March 2021 Mr Chircop was invited by the Commission to provide any further information in support of his complaint. About three weeks later, Mr Chircop provided further information and submitted that having the complaint terminated under s 46PH(1B)(b) of the AHRC Act would be “prudent”.

The Commission’s decision

58    On 13 May 2021, a delegate of the President of the Commission terminated Mr Chircop’s second complaint under s 46PF(1)(b) and 46PH(1)(c) of the AHRC Act.

59    Section 46PF relevantly provides:

(1)    Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:

(a)    consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and

(b)    if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and

(c)    unless the President terminates the complaint under paragraph (b) or section 46PH—inquire into the complaint and attempt to conciliate the complaint.

(1A)    For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).

…

(5)     The President may decide not to inquire into the complaint, or, if the President has started inquiring into the complaint, may decide not to continue to inquire into the complaint, if:

(a)    the President is satisfied that the person aggrieved by the alleged acts, omissions or practices does not want the President to inquire, or to continue to inquire, into the complaint; or

(b)    the President is satisfied that the complaint has been settled or resolved.

60    Section 46PH(1)(c) relevantly provides:

Discretionary termination of complaint

(1)    The President may terminate a complaint on any of the following grounds:

…

(c)    the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted [.]

61    By s 19, read with s 8, the President may delegate any or all of these powers to another person, provided the other person is not a member of the Commission.

62    In the present case, for the purposes of s 46PH(1)(c), the delegate considered the timing of the allegations, other actions that had been taken and/or other available remedies, and the prospect of a practical outcome or remedy being achieved through the Commission’s processes.

63    The delegate remarked that a significant number of Mr Chircop’s allegations were included in the first complaint. As that complaint had been terminated, the delegate said that it was unclear why Mr Chircop did not take the option available to him under s 46PO(1) of making an application to this Court to pursue the allegations.

64    The delegate noted that, in relation to the allegations of discrimination and victimisation that occurred after the first complaint was finalised, TAFE’s appeal decision advised Mr Chircop that, if he was dissatisfied with the outcome, he could contact the NSW Ombudsman. The delegate stated that it was unclear whether Mr Chircop had elected to do so or whether the option remained open to him.

65    The delegate observed that, where the Commission does inquire into a complaint, its powers are limited to assisting the parties to attempt to resolve the complaint by conciliation. As the parties were unable to reach an agreement to participate in a conciliation process to resolve the first complaint, and noting TAFE’s belief there was little prospect of resolution by conciliation, the delegate considered that the prospect of Mr Chircop achieving a practical outcome through the Commission’s complaint process was “very limited”.

66    Having regard to all the circumstances, the delegate decided that an inquiry into the complaint was not warranted.

67    The delegate noted that Mr Chircop could apply to this Court to pursue the allegations, but stated that he must do so within 60 days and that the application can only be made if the Court grants leave.

The originating application

68    Mr Chircop filed an originating application in this Court on 22 July 2021. In it, he made substantially the same claims against TAFE as he made in the second complaint, alleging that TAFE discriminated against him under ss 5, 6, 10, 11, 22, 23, 32 and 123 of the DDA and engaged in acts of victimisation. The grounds were expressed as follows, the number at the beginning of each paragraph being a reference to the section of the DDA upon which he would rely:

5. Direct disability discrimination came from banning me from the classroom and from doing a certain unit because a teacher took issue with my having a mental health breakdown, and the victimisation in 2020 from making my matters heard with the AHRC. The victimisation resulted in allegations of acts that were not attended to when said to have happened, and the TAFE NSW staff member investigating these chose to ignore the advice of TAFE NSW Disability and Counselling staff who advised against harsh penalties.

6. Indirect disability discrimination in the way of bringing up alleged breaches of student conduct only after I suffered a mental health breakdown in an empty classroom, and in that they did not find reasonable adjustment to a unit I was banned from.

10. Act done because of disability and for other reason: the new Headteacher calling security on me after I chastised her for telling me to leave campus when I expressed my discomfort around her. Falsified allegations from her followed this.

11. Unjustifiable hardship in that it has worsened my mental health in severe ways, and therefore my disability. If I were to return to TAFE, it will take me five years and upward to complete this two-year diploma. This adds to the cost of fees, materials, travel, locker hire, mental health management if victimisation and discrimination continued, and any alternative education. It is also more difficult to find employment whilst studying, and therefore income is affected. The accruing bouts of discrimination has left me untrusting of such an institute and only two TAFE NSW campuses offer this course, so alternatives are limited.

22. Education: has greatly been affected as well as my progression in this tertiary educational institute. They have denied me access and limited my access to any benefit provided by the educational authority by disallowing me to do most second-year units when I was a second-year student. The course has curriculum that they often schedule for the evenings and I was personally disallowed from studying in the evenings as their “intent is for [me] to be only studying in the day because that is when [their] support services are available”. The TAFE has created multiple detriments for me, mainly the Headteacher of 2019 telling me “[studying in] 2020 is still only a possibility” and, later, only being allowed to reenrol in the course only after undertaking a “History of Violence” procedural.

23. Access to premises in that I was told by the HOV Panel (and sign in the Behavioural Management Plan) that I must limit contact with the Headteacher and that I am to leave campus immediately after my other classes are finished “to ensure the safety of staff and students”—mainly the draping teacher. One lecture I had to leave immediately because the draping teacher walked in, and I failed the unit because I couldn’t hand in the lecture notes needed to pass. This requirement to leave the premises greatly affected all needs outside of the classroom like the library and counselling/disability facilities. I reiterate that I was told by the same Panel that I could not study in the evenings because they did not have the services my disability may need at that time. In 2020 during the investigation, the head of TAFE Ultimo told me to cease use of TAFE NSW counselling services.

32. Unlawful to contravene disability standards

123. Conduct by directors, employees, and agents in due processes, learning environments, in making reasonable adjustments, and during mental health crises.

This treatment would not be given to a person without a disability because such a person would not require the disability and counselling services that have affected most of TAFE NSW’s decisions.

69    The remedies Mr Chircop is seeking from TAFE include an apology from TAFE, compensation for “four years’ worth of emotional damages”; compensation for a $600 fee he paid for a course which he claims was never refunded; $9,000 for rental payments he made due to moving into a share house closer to TAFE; and an unspecified amount to “comfortably study a similar course elsewhere”.

Extension of time

70    Section 46PO(2) of the AHRC Act requires that any application to this Court under subs (1) be made within 60 days of the notice of termination “or within such further time as the court concerned allows”. Mr Chircop’s originating application was filed 10 days outside the statutory period. He therefore requires an extension of time to make it.

71    The discretion to grant an extension of time must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions, which is the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) s 37M(1) and (3). See also Stepien v Department of Human Services [2018] FCA 1062 at [21] (Mortimer J). The civil practice and procedure provisions include provisions of any Act with respect to the practice and procedure of the Court: s 37M(4)(b). The overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

72    In Ferrus v Qantas Airways Limited [2006] FCA 812 at [19], Collier J set out the following principles applicable to exercise of the discretion under s 46PO(2), taken from the oft-quoted remarks made by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 in the context of an application for an extension of time under the Administrative Decisions (Judicial Review) Act 1977 (Cth):

1.    There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ … is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550).

2.    It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a precondition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A’Hearn (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302).

3.    Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 42 ALR 283 at 287).

4.    Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension (see Doyle at 287).

5.    The mere absence of prejudice is not enough to justify the grant of an extension (see Lucic at 416).

6.    The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted (see Lucic at 417).

7.    Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (see Wedesweiller v Cole (1983) 47 ALR 528).

73    In Reurich v Sureway Employment and Training Pty Ltd [2018] FCA 680 at [18], Markovic J observed that the three main considerations in a case of this kind are the explanation for the delay; any prejudice to the respondent, and whether the applicant has an arguable case.

74    There is an overlap between these principles and the principles governing the grant of leave, discussed below.

75    In his originating application Mr Chircop attributed the delay in lodging the application to the time taken by Justice Connect “trying to locate a barrister”, the time it took to respond, and its ultimate decision not to provide him with legal advice, which meant he had to file the application himself. He also attributed the delay to the lockdowns in Sydney associated with the COVID-19 pandemic which, he said, affected his ability to access library resources and hindered him seeking help for his “concentrative problems”. Finally, he said that his time was occupied by “caring for his mother who has a collapsed lung”.

76    The explanation was not supported by the evidence. The explanation Mr Chircop offered in his affidavit of 6 April 2022 was different. In his affidavit Mr Chircop deposed that he did not know when the 60 day time period started or finished and blamed the delay on a “mix-up” based on “misinformation” from the Court. He also said that the “amount of days out from the allotted 60” were taken up by “research and waiting over the weekend and following week for responses from potential legal aid”. The majority of law firms, he said, were found to be “incompatible” and he could not get an appointment with Legal Aid until 5 April 2022. In oral argument, he also claimed to be “naïve at some of [the] processes” and once again professed not to know when time began to run.

77    No weight can be attached to the explanation proffered in the originating application and repeated in oral argument since they were bare assertions not supported by, and to some extent inconsistent with, the evidence. For the following reasons it is also difficult to put any weight on the evidence itself.

78    First, notwithstanding his claimed ignorance, the Commission advised Mr Chircop twice that he had 60 days to lodge an application with the Court “commencing from the date of the notice of termination”, once in its notice of termination of the first complaint and again in its notice of termination of the second complaint.

79    Second, Mr Chircop’s alleged communications with the Court occurred on 23 March 2022, well after the 60 day period had expired.

80    Third, the evidence regarding his attempts to obtain legal representation indicates that this, too, occurred well after the expiration of the period, in and around April 2022, in response to my encouragement at a case management hearing on 25 March 2022 that he obtain legal representation. No evidence was adduced to support the statement made in the originating application that “[the] majority of the allotted sixty days was spent by Justice Connect trying to locate a barrister and often waiting a week for responses for them”. Even if the explanations contained in his originating application were to be taken into account they lacked any detail about his discussions with Justice Connect, the nature of his “concentration problems” and how they may have hindered his ability to file the application, the nature of the library resources he needed to access in order to do so or what kind of care he gave his mother and when he provided it.

81    I accept that the delay in lodging his originating application is not especially long. Still there must be some evidence capable of persuading the Court that the extension of time should be granted: Tang v AHG Services (NSW) Pty Ltd [2011] FCA 1532 at [14] (Jagot J). Here, there is scant material to support the request. Having regard to the dearth of supporting material for the assertions in the originating application, the apparent inconsistencies between them and those made in the evidence, and the problems with the evidence itself, I do not consider that Mr Chircop has provided an adequate or acceptable explanation for the delay.

82    TAFE argued that Mr Chircop, in effect, rested on his rights by not filing an application following the termination of the first complaint, and that his current application is an attempt to re-litigate the earlier complaint. It also pointed to the concern raised by the Commission regarding the similarities between Mr Chircop’s first and second complaints, as summarised in the Commission’s decision at p 3:

On 19 February 2021 the Commission contacted you to advise that it appeared that the majority of what you had submitted was the same subject matter as previous complaint against TAFE NSW that was terminated on 17 November 2020.

On 22 February 2021 you emailed the Commission and submitted that the context of your entire statement lodged on 16 February 2021 is necessary. You said the Commission may not have the hindsight to foresee ramifications on any legal process if you were to have fragmented filings. You also stated that the period to file the President’s Delegate’s original termination has already long passed and you have no other option here.

83    Despite these concerns, however, the Commission accepted Mr Chircop’s second complaint “in full”. There is nothing in the Commission’s decision to suggest that it only considered the allegations that occurred after November 2020. There is also nothing in the AHRC Act that would prevent Mr Chircop from making a complaint raising the same allegations as those he had raised in his previous complaint, save for the Commission’s powers to terminate a complaint on the basis that it was lodged more than six months after the alleged acts took place (s 46PH(1)(b)), or that it was vexatious, misconceived or lacking in substance(s 46PH(1B)(a)), or because the subject matter of the complaint had already been dealt with by the Commission (s 46PH(1)(f)). No question of issue estoppel arises either. No court proceeding was commenced with respect to the first complaint, let alone determined. And the doctrine of issue estoppel does not apply to an administrative tribunal (see Commonwealth v Snell (2019) 269 FCR 18 at [51] (Allsop CJ, Reeves and Derrington JJ), let alone the President of the Commission or her delegate. In any event, the allegations contained in the first complaint were not determined by the Commission on their merits. Mr Chircop was therefore not re-litigating the first complaint by making the application.

84    Still, Mr Chircop was aware of the need to file an application 60 days after the termination of the first complaint and rested on his rights by failing to make an application within that period. Mr Chircop filed the second complaint with the Commission 91 days after the termination of the first, and TAFE was made aware of the second complaint on 12 March 2021, some 24 days later. On the other hand, there is no evidence of actual prejudice.

85    Mr Chircop relied on six judgments of the Federal Magistrates Court of Australia (as it then was) and a single case of this Court as examples of similar situations in which an extension of time was granted under s 46PO(2). But none of these cases assist him. Each involved discretionary considerations related to the specific factual circumstances of the particular case and, in any event, as decisions of an inferior court, they are not binding on this Court.

86    TAFE contended that the delay between the decision terminating the second complaint and the date of filing of the originating application was deceptively short, pointing to the long delay in serving the originating application. It argued that this delay meant that it was entitled to regard the claim as being finalised (see Doyle v Chief of Staff (1982) 71 FLR 56 at 60; 42 ALR 283 at 287; 4 ALD 636 at 639). Under r 8.06 of the Federal Court Rules 2011 (Cth), an applicant must, as soon as practicable and at least five days before the return date fixed in an originating application, serve a copy of the originating application personally on each named respondent. The application was not served on TAFE until 11 February 2022, four days after the first case management hearing and 204 days after Mr Chircop filed the originating application. Once again, however, TAFE did not claim to have been prejudiced by this delay.

87    I am not satisfied that Mr Chircop has provided a reasonable explanation for his delay in filing the originating application. That is a matter that must be weighed in the balance in determining whether the extension he seeks should be granted. The delay was not trivial but it was not extensive. Furthermore, there is no evidence to suggest that TAFE was prejudiced by the delay. In these circumstances, the merits or otherwise of the application are the dominant consideration. Since this is the same hurdle Mr Chircop must overcome to make the application, it is convenient to turn to that consideration now.

Application for leave

88    Section 46PO of the AHRC Act relevantly provides:

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

…

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

89    Section 46PH(1)(h) concerns a situation in which the President (or the President’s delegate) terminates a complaint because she (or he) is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by this Court or the Federal Circuit Court. Section 46PH(1B)(b) concerns a situation in which the President (or a delegate) terminates a complaint because she (or he) is satisfied there is no reasonable prospect of the matter being settled by conciliation.

90    Since the second complaint was terminated under neither s 46PH(1)(h) nor 46PH(1B)(b), Mr Chircop cannot move on his application unless the Court grants him leave. This much is common ground. While Mr Chircop’s first complaint was terminated by a delegate under s 46PH(1B)(b)), his second was not. Since Mr Chircop chose not to make an application to the Court alleging unlawful discrimination the subject of the first terminated complaint, it is beside the point that there was no requirement for leave to apply to the Court in relation to that complaint.

91    Section 46PR provides that, in proceedings under s 46PO the Court is “not bound by technicalities or legal forms”, subject to Ch III of the Constitution.

The relevant principles

92    Section 46PO(3A) was inserted into the AHRC Act by the Human Rights Legislation Amendment Act 2017 (Cth), following a recommendation by the Parliamentary Joint Committee on Human Rights in its report on Freedom of Speech in Australia, tabled in Parliament on 28 February 2017: Explanatory Memorandum on Human Rights Legislation Amendment Bill 2017 [166]. It seems from the Committee’s report that the recommendation was made to provide a screening mechanism to avoid the burdens imposed on the parties and the courts in responding to, or dealing with, unmeritorious complaints.

93    In James v WorkPower Inc [2018] FCA 2083 at [31], Mortimer J observed that the “governing consideration” in the exercise of the grant of leave under s 46PO(3A)(a) is the interests of the administration of justice. Her Honour went on to say (at [32]):

The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

94    After reviewing the legislative history and context of the provision, her Honour concluded at [37] that in determining whether to grant leave “it is appropriate” for the Court to consider whether the claims made by the applicant are “reasonably arguable” and “at the least – not fanciful”. Her Honour observed that this interpretation was consistent with the language used in s 46P(1A), which requires that the acts, omissions or practices the subject of a written complaint lodged with the Commission be reasonably arguable. Her Honour continued:

I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

95    In the same case at [38], Mortimer J suggested that other permissible considerations might include:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications – such as prejudice to a party.

96    Her Honour observed that it would be a denial of procedural fairness, and a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), for the Court to “embark on a detailed consideration and determination of the merits of the applicant’s underlying arguments”. If questions of fact and law are raised that are at least arguable, her Honour said, they should be determined at trial (at [39]).

97    There was no dispute between the parties as to the correctness of Mortimer J’s views. And they have been repeatedly applied by this Court, including in Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460 at [13]–[16] (Steward J); Ryan v Commissioner of Police NSW Police Force [2019] FCA 1607 at [21]–[23] (Abraham J); Matthews v Markos [2019] FCA 1827 at [29]–[34] (Abraham J); Budini v Sunnyfield [2019] FCA 2164 at [50]–[51] (Charlesworth J); Jones v Westpac Banking Corporation [2020] FCA 238 at [66]–[67] (Kerr J); Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080 at [19]–[20] (Gleeson J); Owen v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management [2020] FCA 1826 at [20] (McKerracher J).

98    In Matthews Abraham J considered the proper approach to weighing up the various considerations identified in James (at [37]):

First, the purpose of s 46PO(3A) in this legislative scheme is, as described by Mortimer J in James v WorkPower Inc at [37], “to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level”. Second, whether a matter is reasonably arguable is a consideration, unlike others, which must necessarily be satisfied before leave will be granted. It would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit (in the manner described in James v WorkPower Inc). Third, if a matter is considered to be reasonably arguable, the other relevant considerations do not fall away. Rather, the weight to be given to each of the relevant considerations will necessarily be case specific. Moreover, the content of each of the considerations referred to in James v WorkPower Inc may inform the significance of other considerations (e.g. delay may contribute to the assessment of whether a matter is reasonably arguable if it affects the ability to establish the factual basis of the claim, and may also inform the question of prejudice to the respondents).

99    In Budini, Charlesworth J added one qualification to Mortimer J’s views that, if a claim does not have reasonable prospects of success, leave should not be granted (at [52]):

To her Honour’s observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

…

(c)    no reasonable cause of action is disclosed[.]

100    In Jones at [73], Kerr J did not consider Charlesworth J’s qualification to impose a stricter test than that set out by Mortimer J in James or to be inconsistent with her Honour’s views. Citing Mortimer J’s remarks that the applicant’s claims must be “reasonably arguable” and “not fanciful” and should not be “disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding”, his Honour considered that this reflected the summary judgment principles inherent in r 26.01 of the Rules. I respectfully agree.

Does the applicant have a reasonably arguable case?

101    Whether a claim is reasonably arguable is a consideration, unlike others, which must be satisfied before leave will be granted: Matthews at [37].

102    A claim will be reasonably arguable if there is a “rational factual substratum for the allegations”, that is, there is some “factual basis” for the claims, even at the threshold level required for leave: James at [43]; Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86] (Abraham J).

103    It is necessary to consider the allegations made in the originating application in determining whether a claim is reasonably arguable. As Abraham J observed in Wilson at [93]:

Assessing whether the claims are reasonably arguable can only be assessed against what is alleged. The evidence cannot be considered in a vacuum, absent the legal basis of the claims. As Mortimer J in James v WorkPower observed, an unmeritorious complaint may, inter alia, be one because it is not arguable as a matter of law, or because there is no rational factual substratum for the allegations: James v WorkPower at [43]. That observation necessarily directs attention to the nature of the claim as pleaded, in addition to the factual basis. The pleadings may result in a matter not being arguable as a matter of law. They may also demonstrate, that as a matter of fact, the claims pleaded are not arguable. Moreover, it is plain that the scheme of the AHRC Act is such that the statutory cause of action in s 46PO only lies in respect of the subject matter of the complaint to the Commission: Grigor-Scott v Jones [2008] FCAFC 14; (2008) 168 FCR 450 at [18]. It operates as a constraint on the relief a complainant to the AHRC can later seek in the Court: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 (Dye) at [46]. That, of itself, also necessarily directs attention to the pleadings. It follows that a consideration of the complaint to the AHRC is also a necessary component of addressing the issue of whether the applicant has established that leave ought to be granted.

104    I am mindful of the need to only undertake an impressionistic assessment of Mr Chircop’s claims and the facts supporting them in assessing whether leave should be granted, without embarking on a detailed consideration and determination of the merits. Nonetheless it is necessary at least to determine whether there is a factual and legal basis for the claims.

The legislative framework

105    Discrimination on the ground of disability is covered by Pt 2 of the DDA (ss 15–58). Mr Chircop’s complaint raises for consideration Div 2, which includes discrimination in education and access to premises; Div 2A, which deals with disability standards; Div 4 (offences); and Div 5 (exemptions).

106    Section 22 of the DDA relevantly provides 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.)

107    Section 23 provides that:

It is unlawful for a person to discriminate against another person on the ground of the other person’s disability:

(a)    by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or

(b)    in the terms or conditions on which the first‑mentioned person is prepared to allow the other person access to, or the use of, any such premises; or

(c)    in relation to the provision of means of access to such premises; or

(d)    by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e)    in the terms or conditions on which the first‑mentioned person is prepared to allow the other person the use of any such facilities; or

(f)    by requiring the other person to leave such premises or cease to use such facilities.

108    “Discrimination” is defined in ss 5 and 6 of the DDA.

109    Section 5 addresses direct discrimination. It provides:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b)    the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

(3)    For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

110    Section 6 of the DDA is concerned with indirect discrimination. It provides:

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c)    the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2)    For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)    the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b)    because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c)    the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3)    Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4)    For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

111    Dawson and Toohey JJ explained the essential difference between direct and indirect discrimination in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourable than the latter … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

See also the discussion in Sklavos at [18]–[20].

112    “Adjustment” is not a defined term. It therefore carries its ordinary meaning of “an alteration or modification”: Watts v Australian Postal Corporation (2014) 222 FCR 220 at [22]. An adjustment is deemed to be reasonable unless making the adjustment would impose an unjustifiable hardship on the person: DDA, s 4. The expression “unjustifiable hardship” is defined in s 11(1), which relevantly provides that:

For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a)    the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b)    the effect of the disability of any person concerned;

(c)    the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d)    the availability of financial and other assistance to the first person;

(e)    any relevant action plans given to the Commission under section 64.

113    The burden of proving that the adjustment would impose an unjustifiable hardship rests with the person making that claim: s 11(2).

114    For the purposes of the DDA, if an act is done for two or more reasons and one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act), that act is taken to be done for that reason (s 10).

115    Section 32 provides that it is unlawful for a person to contravene a “disability standard”. The term “disability standard” is defined under s 31(1) to mean a legislative instrument made by the Minister “in relation to any area in which it is unlawful under this Part for a person to discriminate against another person on the ground of a disability of the other person”. The effect of s 34 is that, if a person acts in accordance with a disability standard, the person’s actions are not unlawful.

116    The relevant standard is the DSE.

117    Section 5.2 of the DSE relevantly provides:

(1)    The education provider must take reasonable steps to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability, and without experiencing discrimination.

(2)    The provider must:

(a)    consult the student, or an associate of the student, about whether the disability affects the student’s ability to participate in the courses or programs for which the student is enrolled and use the facilities or services provided by the provider; and

(b)    in the light of the consultation, decide whether an adjustment is necessary to ensure that the student is able to participate in the courses or programs provided by the educational institution, and use the facilities and services provided by it, on the same basis as a student without a disability; and

(c)    if:

(i)    an adjustment is necessary to achieve the aim mentioned in paragraph (b); and

(ii)    a reasonable adjustment can be identified in relation to that aim;

make a reasonable adjustment for the student in accordance with Part 3.

118    A “reasonable adjustment” is defined in §3.4(1) of the DSE as an adjustment that “balances the interests of all parties affected”. Section 3.4(2) provides:

In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:

(a)    the student’s disability;

(b)    the views of the student or the student’s associate, given under section 3.5;

(c)    the effect of the adjustment on the student, including the effect on the student’s:

(i)    ability to achieve learning outcomes; and

(ii)    ability to participate in courses or programs; and

(iii)    independence;

(d)    the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;

(e)    the costs and benefits of making the adjustment.

119    Section 10.4 provides:

These Standards do not render it unlawful for an education provider to isolate, or discriminate against, a student with a disability if the disability is an infectious disease or other condition and it is reasonably necessary to so isolate or discriminate to protect the health and welfare of the student with a disability or the health and welfare of others.

120    It is an offence to commit “an act of victimisation”, punishable by imprisonment for six months: DDA, s 42(1). For these purposes, s 42(2) provides that:

[A] person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)    has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

(b)    has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

(c)    has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

(d)    has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

(e)    has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

(f)    has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

(g)    has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

121    Mr Chircop relies on s 42(2)(f).

The applicant’s case

122    As outlined in his originating application Mr Chircop’s case is that:

(1)    contrary to s 5 of the DDA, he was discriminated against because TAFE “bann[ed] [him] from the classroom and from doing a certain unit because a teacher took issue with [him] having a mental health breakdown”. He also claims to have been directly discriminated against because of the victimisation he allegedly suffered in 2020 as a result of making complaints to the Commission;

(2)    contrary to s 6, he was indirectly discriminated against because TAFE “did not find a reasonable adjustment to a unit [he] was banned from”. He claims to have suffered an “unjustifiable hardship” because TAFE’s actions have “worsened” his mental health “in severe ways” and that it would take him up to five years to complete his two-year diploma, costing time, money, and making it difficult to source employment;

(3)    contrary to s 22, he was discriminated against in education as his access to benefits offered by TAFE, such as “most second-year units” and certain evening classes, were denied on the basis of his disability;

(4)    contrary to s 23, he was discriminated against on the basis that, under the HOVB procedure, he was required to limit contact with the head teacher and leave campus immediately after his classes were finished, which affected his access to resources such as the library and “counselling/disability facilities”.

123    Mr Chircop also made a claim, purportedly under s 10 of the DDA, that “the new Headteacher calle[ed] security on [him] after [he] chastised her for telling [him] to leave campus” and made false allegations against him.

124    In his originating application Mr Chircop alleged that “[t]his treatment” would not be meted out to a person without a disability “because such a person would not require the disability and counselling services that have affected most of [TAFE’s] decisions”.

The submissions

125    Mr Chircop’s submissions did not expressly address the question of leave nor the considerations referred to in James. Instead, his submissions focused on the merits of his originating application, which I take to be directed to the question of whether he has a reasonably arguable case.

126    In a nutshell, his arguments were:

(1)    as a result of the HOVB procedure, he was barred by TAFE from his draping class (and not offered any alternative classes), limited from entering campus, and therefore prevented from progressing his diploma;

(2)    those actions were taken because of his disability, or a manifestation of it, namely his “mental health breakdown”;

(3)    he was victimised in retaliation for the complaints he had made to TAFE and the Commission;

(4)    the victimisation consisted of the making of “falsified” allegations against him; and

(5)    the allegations were raised only after his mental health breakdown following which he was excluded from TAFE campuses, first for six months and later for 12.

127    Mr Chircop relied on Hurst v Queensland (2006) 151 FCR 562 in support of his indirect discrimination claim. In that case, a severely to profoundly deaf child was required to be taught without the assistance of an Auslan teacher or interpreter. The Full Court found that, even though the child would be able to “cope” with the requirement, she would suffer a serious disadvantage. The circumstances are different here. Mr Chircop argued that the condition imposed on him was his exclusion from evening classes in order to ensure he could access appropriate support services. The disadvantage he claims he has suffered is being unable to participate in the classes required to complete his diploma. However, in order to make out indirect discrimination, the condition must apply to everyone but affect the individual differently such that they would be seriously disadvantaged by it or unable to comply with it. Here, the condition was imposed only on Mr Chircop. It cannot be indirect discrimination.

128    Mr Chircop relied on Hills Grammar School v Human Rights and Equal Opportunity Commission (2000) 100 FCR 306 for his direct discrimination claim. Hills Grammar School declined to enrol a student who had spina bifida on the ground of unjustifiable hardship. The Commission found that the defence had not been made out, and the judicial review application was dismissed. The relevance of the judgment is elusive. Mr Chircop merely argued that TAFE had not suffered any unjustifiable hardship and, in contrast, he had suffered extensive financial hardship.

129    TAFE’s written submissions also addressed the merits of Mr Chircop’s claims. They were deficient in that they were only directed at the events that took place after the termination of the first complaint. As I have found, however, and as TAFE’s counsel conceded in oral argument, the second complaint purported to capture all the allegations that were contained in the first complaint and was treated as such by the Commission.

130    TAFE’s written submissions were also problematic in that they addressed the complaint the subject of the Commission’s decision rather than the case outlined in Mr Chircop’s originating application. While the contents of the complaint are unquestionably important, s 46PO(3) makes a distinction between an “application” and a “complaint”. The question is whether leave should be granted to make the application, not to make the complaint.

131    Be that as it may, in oral argument TAFE addressed the substance of the claims made in the originating application, including the allegations that were originally made in the first complaint. TAFE submitted that leave should be refused because Mr Chircop’s claims are speculative and do not adequately compare his treatment to others in the same or similar circumstances or otherwise disclose that there was a causal relationship between his disability and its conduct.

The alleged disability

132    Section 4 of the DDA relevantly defines a “disability” as “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment” and includes a “behaviour that is a symptom or manifestation of the disability”.

133    The nature of Mr Chircop’s disability was not identified in the originating application. But TAFE did not dispute, and I am prepared to assume for the purposes of determining the application for leave, that at all relevant times Mr Chircop had a disability within the meaning of s 4.

134    Mr Chircop claimed in his second complaint that he had “anxiety, low moods and depression” as well as suicidal ideation. He provided evidence that he was registered with TAFE’s disabilities unit in April 2018 and a discharge summary from Nepean Hospital dated 29 March 2019 records a diagnosis of “[c]hronic dysthymia [a persistent depressive disorder] with histrionic and borderline traits”.

The alleged unlawful discrimination

135    In oral argument, when invited to identify the acts of discrimination the subject of his application, Mr Chircop pointed to five matters: (1) being informed during the third panel meeting in March 2019 that he could not complete the draping unit in which he was enrolled because of the unavailability of support services during the evening classes; (2) being told by Ms Malvern on 26 March 2019 that studying in 2020 was “only a possibility”; (3) the lack of tutorials offered in substitution for the draping unit and being prevented from progressing to the latter stages of his course due to the failure to provide “reasonable adjustments”; (4) being told by Ms O’Dell rather than the millinery teacher, Bronwyn Shooks, on 14 October 2019 that he could not complete his millinery unit; and (5) being prevented from completing his second year units, which was inconsistent with the lesson plan offered as part of the HOVB procedure.

136    TAFE is unquestionably an “educational authority”. The evidence adduced on the application indicates that it at least limited Mr Chircop’s access to certain benefits it provided. It also indicates that TAFE refused Mr Chircop access to its premises. TAFE accepts that at all relevant times Mr Chircop had a disability within the meaning of the DDA. But these matters alone are insufficient to raise a prima facie case of unlawful discrimination.

137    There are several problems with Mr Chircop’s case.

138    First, while in his application and submissions Mr Chircop repeatedly asserts that TAFE’s actions involved discrimination, in many instances his real complaint was that he was unfairly treated. Without more, unfair treatment is not unlawful discrimination.

139    Second, Mr Chircop did not point to a factual basis to support his claim that TAFE discriminated against him “on the ground of” his disability for the purpose of ss 5, 6, 22 and 23 of the DDA. The person’s disability must be the “true basis” or “real reason” reason for the discrimination: Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 at [13] (Gleeson CJ), [166] (McHugh and Kirby JJ); Munday v Commonwealth (No 2) (2014) 226 FCR 199 at [59] (Katzmann J). In other words, there must be a causal connection between the disability and the discrimination. While it is not necessary to show that the discriminator had any intention or motive to discriminate, motive or purpose may be relevant to the question of causation: Waters at 359 (Mason CJ and Gaudron J); Purvis at [160] (McHugh and Kirby JJ), [236] (Gummow, Hayne and Heydon JJ).

140    Here, Mr Chircop has alleged that TAFE discriminated against him by imposing various conditions and requirements on him under the HOVB procedure, or by failing to offer reasonable adjustments. He broadly asserts that conditions and requirements were imposed on him because of his “mental health breakdown”. As Mr Chircop frankly acknowledged in argument, however, the proposition that he was unlawfully discriminated against on the ground of his disability was based, at its highest, on inferences he drew and suppositions he made. He also volunteered that he could not identify the person or persons responsible:

It’s probably speculative, but I don’t know how much conference there was between the panel and between the section, and I don’t know who devised actually the lesson plan, because that doesn’t actually say that. But I don’t really know if the panel gave the orders here or if this is really just Tracey Malverne having to pick up the pieces because the panel was just, like, “Deal with it”.

141    The stated purpose of the HOVB procedure is to “provide a framework to assess any current risk to TAFE staff, students and visitors posed by current or prospective students with a history of violent behaviour”. The evidence discloses that it was developed to support a TAFE management policy and assist TAFE institutes “to meet the requirements under Work Health and Safety (WHS) legislation and the Disability Discrimination Act 1992”. For the purposes of the procedure “violence” is defined broadly. It is not restricted to physical acts. It includes “any behaviour that seriously interferes with the physical or psychological safety and wellbeing of staff and students” and expressly captures “threats to commit violence, aggressive behaviour which is non-contact in nature and may also include offensive, aggressive or abusive language directed to staff and students”.

142    The behaviour management plan, implemented as part of the HOVB procedure, refers only to issues with Mr Chircop’s behaviour and the measures to manage and respond to it. The lesson plan also appears to have been implemented to ensure he would complete classes when appropriate supports were available. Understandably, having regard to the reasons for its development, the HOVB procedure specifically contemplates circumstances where a student has a disability, stating that regard must be had to the student’s behaviour not their disability:

Is it relevant that the student has a disability?

If the student has a disability TAFE NSW has a legal obligations, under the Disability Standards for Education 2005, to provide the student with reasonable accommodation and support and reasonable adjustments should be made to the TAFE NSW environment to accommodate the student.

The fact that a student has a disability does not constitute reasonable grounds for TAFE NSW to determine that he or she is a risk to the health and safety of people at TAFE. It is the behaviour of the student that needs to be considered in assessing whether or not the student poses a risk of violence and not whether or not they have a disability.

(Original emphasis.)

143    While Mr Chircop submitted that his behaviour during the incident on 4 March 2019 was distinguishable from the violent behaviour of the student in Purvis, this is not to the point. The question is why TAFE imposed the HOVB procedure. On the material before the Court, TAFE identified Mr Chircop as engaging in behaviour, both on 4 March 2019 and on other occasions, which met the broad definition of “violence” under the HOVB procedure. It seems tolerably clear that the only reason the HOVB procedure was put in place was to protect the safety and welfare of staff and other students. Mr Chircop submitted that TAFE failed to recognise that some of his behaviour was linked to his anxiety (and hence his disability) and was “[b]rand[ed]” as “behavioural issues”. I do not doubt that certain behavioural problems could be a manifestation of a mental illness or disorder. But Mr Chircop’s submission was not supported by evidence. Expert evidence would be required to show that the behaviour which prompted TAFE to act as it did was a manifestation of his disability. No such evidence was adduced. Nor did Mr Chircop point to the availability of any such evidence.

144    Further, without more, Mr Chircop’s claim that he was discriminated on the ground of his disability because “the new Headteacher calle[ed] security on [him] after [he] chastised her for telling [him] to leave campus” is bound to fail.

145    In the result, while I acknowledge that a high bar should not be imposed for the grant of leave under s 46PO(3A)(a) of the AHRC Act, based on the evidence before the Court and the way Mr Chircop framed his case, I am not satisfied that it is reasonably arguable that the alleged unlawful discrimination occurred because of Mr Chircop’s disability: cf. Owen v Serendipity at [27]; Wilson at [121], [124].

146    Third, in his originating application Mr Chircop noted that TAFE was “firm” that it had not treated him any differently from other students “without disability” but could not prove it. But it is Mr Chircop, not TAFE, who carries the burden of proof. He has to prove that TAFE treated him less favourably than it would treat a student without his disability.

147    Fourth, the comparison the DDA requires is between TAFE’s treatment of him and the way TAFE would treat a person without his disability “in circumstances that are not materially different”. Before the comparison can be made, it is necessary to identify and examine the circumstances attending the treatment given or proposed and an examination of “what would have been done in those circumstances if the person concerned was not disabled”: Purvis at [223] (Gummow, Hayne and Heydon JJ). In Purvis the High Court held that, where a disabled child had a disability that caused him to behave violently at school and was excluded from school, the relevant comparison was between the child concerned and another child without the disability who behaved in a similarly violent way: Purvis at [12] (Gleeson CJ), [221]–[225] (Gummow, Hayne and Heydon JJ), [273] (Callinan J). All the “objective features” that surround the disabled person’s treatment must be identified first, because the comparison the Act requires between the person with the disability and the person without it must be made in circumstances that are not materially different: Purvis at [224].

148    Here, Mr Chircop did not identify critical objective features that would enable the requisite comparison to be made. Instead, he merely claimed that the other student also engaged in disruptive conduct “and committed breaches of student conduct” but “did not receive an exclusion, an investigation, a penalty, a ban, and the need for an appeal since he was in class the following day after he had had a meeting about [the complaint he had made against the student]”.

149    Mr Chircop submitted that the approach of the majority in Purvis “gives rise to nonsensical comparators”. Regardless, I am bound to apply it. While the DDA has been amended since Purvis, none of the amendments affect this aspect of the judgment.

150    In a statement attached to his second complaint (JWC-53), Mr Chircop stated that “the ‘exact same’ discipline I am receiving is not given to other students”. Assuming this to be true, it begs the question.

151    In his originating application Mr Chircop identified as a comparator another student about whom he had complained:

A comparator to how he was treated contrary to other students without disability exhibiting similar or heavier misbehaviour is when he made a complaint against a fellow student to the TAFE NSW online complaints process. Said student was still attending class by next lesson after one meeting with the Headteacher and did not receive the severe level of discipline and process the Applicant received—class exclusion, a panel to discuss allegations, a decision and penalty (a behavioural management plan), any campus ban, or a need for an appeal process—despite having made transphobic remarks about a transitioning student, stealing property of staff, taking an unsolicited photo of a student on campus to mock them, comparing a teacher to a stroke victim because of her speaking voice, and using foul language to humiliate students in class and to criticise TAFE NSW staff for self-created perceptions. None of this behaviour is due to mental health issues.

152    In his submissions, he claimed to have “comparators in three undisciplined students without disabilities that manifest similar ‘disruptive’ behaviours”. But he provided no further details.

153    The comparator offered in the originating application appears to have been the subject of the complaint lodged by Mr Chircop in November 2020.

154    There are problems with the comparison. There is no suggestion, for example, that the student in question had a history of misbehaviour. Mr Chircop did not contend that other complaints had been made against the student, that the alleged conduct occurred over an extended period, or that the misconduct was substantiated after an investigation. Nor did he say that the student had previously been found to have breached student policies.

155    In his complaint about that student, Mr Chircop mentioned another student he claimed had also engaged in disruptive behaviour on one occasion. Even if Mr Chircop could prove that the students engaged in the conduct complained of, this is the wrong approach: Wilson at [118]-[119].

156    Mr Chircop bears the burden of establishing that his case is reasonably arguable. I am not satisfied (accepting the low bar for determining leave) that he can show that the circumstances of the two cases are sufficiently alike so as to enable him to establish a case of direct discrimination.

157    Fifth, Mr Chircop’s claim of indirect discrimination is misconceived. It is described in the originating application as “bringing up alleged breaches of student conduct only after I suffered a mental health breakdown in an empty classroom, and in that they did not find reasonable adjustment to a unit I was banned from”. On its face Mr Chircop’s complaint appears to be that, by implementing the HOVB procedure which led to a lesson plan being developed resulted in Mr Chircop not being permitted to complete his draping unit, TAFE indirectly discriminated against him by not offering him “reasonable adjustments”. There are several problems with such a claim.

158    A “requirement or condition” for the purposes of s 6 must be one of “general application” and be “facially neutral”: Abela v State of Victoria [2013] FCA 832 at [85]–[92] (Tracey J). Here, the alleged requirement or condition is neither general nor neutral as it was directed to addressing Mr Chircop’s behavioural issues.

159    Mr Chircop claimed that he was required not to attend the draping class on Monday nights as support services would not be available then. Despite his assertion that evening classes “always disenfranchise students with disabilities”, there is no evidence that this was a requirement imposed on anyone else. If anything, this would be a case of direct discrimination within s 5(2).

160    While Mr Chircop has effectively claimed that the same conduct constituted direct discrimination in education in contravention of s 22 of the DDA, the definitions of direct and indirect discrimination are mutually exclusive: Waters at 392–3 (Dawson and Toohey JJ), 400 (McHugh J); Sklavos v Australian College of Dermatologists (2017) 256 FCR 247 at [13]–[14] (Bromberg J); [179] (Griffiths J); [213] (Bromwich J). In other words the same conduct cannot amount to both direct and indirect discrimination: Sklavos at [13], [16]. Although it might have been open to him to allege that the conduct amounted to direct discrimination and in the alternative indirect discrimination, he has not done so: Sklavos at [16] (Bromberg J); cf. Munday at [157].

161    In his submissions Mr Chircop asserted that:

TAFE courses that run from the afternoon to the late evening when disability services are not available will always disenfranchise students with disabilities, and constitutes as indirect discrimination.

162    Mr Chircop claims that Deborah Hyam (Head of Skills for Creative and Design Ideation in Fashion Technology) told him at the meeting of the panel on 25 March 2019 that “[o]ur intent is for you to be only studying in the day because that is when our support services are available”. According to his own account of that meeting, Gillian Blackburn (Head of Disabilities Counselling and Support Services) said that “[t]here are concerns about you not being able to pass the course and that people around you are finding it difficult to participate fully in the classroom as a consequence of your behaviour”. This was the reason Mr Chircop could not continue with the draping unit. In any event, on 6 May 2020 the six month ban was lifted and Mr Chircop was told that he could do half a draping unit and a theory unit for the Major Project. At his own request, TAFE also arranged for him to be provided with additional tutorial support for the draping unit. He was in the draping class with Fiona Holley when the incident of 19 November 2020 occurred which led to the 12-month ban. This account undermines Mr Chircop’s case that reasonable adjustments were not made and that he was unable to attend and participate in a draping unit (or second year units more generally). In any event Mr Chircop did not point to a particular requirement or condition imposed upon him by TAFE with which he was unable to comply because of his disability.

163    Whether his claim arises under s 6(1) or (2), Mr Chircop has not alleged, let alone identified, a basis for demonstrating that he could not comply with any of TAFE’s requirements or conditions “because of his disability” or that, “because of his disability”, he could only comply with a requirement or condition if there were reasonable adjustments. Mr Chircop did not identify the “reasonable adjustments” he claims TAFE should have implemented. It is one thing to say that a condition or requirement was imposed on a person because of his disability. That is a question of direct discrimination. It is another thing, however, to say that he could not comply with that condition or requirement because of his disability. Yet that is what ss 6(1)(b) and (2)(b) require.

164    Sixth, to the extent that Mr Chircop claims to have been directly discriminated against by not being permitted to undertake a draping class on Monday nights when support services were not available, and not being offered reasonable alternatives, the exemption in s 45(1)(b)(i) of the DDA would surely apply.

165    Section 45(1)(b)(i) relevantly provides that it is not unlawful to do an act that is reasonably intended to afford persons who have a disability access to facilities or services to meet their special needs in relation to education. It reads:

Special measures

(1)    This Part does not render it unlawful to do an act that is reasonably intended to:

…

(b)    afford persons who have a disability or a particular disability, goods or access to facilities, services or opportunities to meet their special needs in relation to:

(i)    employment, education, accommodation, clubs or sport [.]

166    As Sackville and Stone JJ observed in Catholic Education Office v Clarke (2004) 138 FCR 121 at [129]:

Section 45 is primarily designed to make lawful affirmative conduct, “reasonably intended” to provide services or facilities to disabled people that are not available to the general community or to provide benefits to particular classes of disabled persons to meet their special needs, even though the benefits are not made available to other disabled people[.]

167    According to Mr Chircop’s submissions, “[f]unds for private tutorials [were] put in place after the HOVB” to provide an alternative class to the draping unit he could not do which were allocated to a first year unit he had not completed. Without delving into the question of whether the alternative class was “reasonably intended” to afford Mr Chircop access to services to meet his needs, this would appear to be a particular weakness in Mr Chircop’s case, particularly as TAFE’s lesson plan was apparently designed to ensure that he could access TAFE’s support services.

The alleged contravention of Disability Standards.

168    This allegation was barely coherent.

169    In respect of s 32, Mr Chircop simply stated in his originating application: “Unlawful to contravene disability standards”. His second complaint contains slightly more, but still scant, detail. In it, he wrote:

The Disability Standards for Education 2005 also appear relevant. For the standards of Reasonable adjustments, most were not reasonable in relation to my disability since they did not balance the interests of all parties affected.

170    The same sentence is repeated in his submissions. Nowhere in the materials, however, did Mr Chircop identify what “reasonable adjustments” should have been implemented by TAFE for the purpose of complying with the Disability Standards. Assuming he is referring to the reasonable adjustments he claimed should have been made after he was required not to complete his draping class, again, he did not identify them. Nor did he explain how they meet the definition of “reasonable adjustment” in § 3.4 of the Disability Standards. Furthermore, he did not address TAFE’s claim that its actions were not unlawful because they were taken to protect the health and welfare of staff and students including Mr Chircop.

171    Mr Chircop bears the onus of proving that his claims are reasonably arguable. He has not discharged that onus.

The alleged victimisation

172    It will be recalled that s 42 of the DDA creates an offence. There is conflicting Full Court authority on whether, in these circumstances, this Court has jurisdiction to hear and determine a claim of victimisation. In Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; 63 AILR ¶101–302 at [70]–[71] Marshall, Rares and Flick JJ held that it does. In Dye at [71] the Full Court said:

[T]he purpose of s 46PO of the AHRC Act is to create a private cause of action … for unlawful discrimination including a contravention of s 94 of the Sex Discrimination Act. That statutory cause of action attracted the broad range of statutory remedies in s 46PO(4), including a right to damages by way of compensation for any loss or damage suffered because of the conduct of the respondent (s 46PO(4)(f)). Thus, the AHRC Act, read together with s 94 of the Sex Discrimination Act, creates a range of remedies for victimisation that includes damages, being expressly within the definition of unlawful discrimination s 3(1) of the AHRC Act.

173    These remarks apply with equal force to s 42 of the DDA. Section 94 of the Sex Discrimination Act 1984 (Cth) is its analogue. The definition of unlawful discrimination in s 3(1)(a) of the AHRC Act also expressly includes “any acts, omissions or practices that are unlawful under … Part 2 of the DDA” in which s 42 appears.

174    In obiter dicta and without referring to Dye, however, another Full Court considered that the Court had no jurisdiction to hear a claim of victimisation: Walker v State of Victoria [2012] FCAFC 38 at [98]–[100] (Gray J, Reeves J agreeing at [167]). In Chen v Monash University (2016) 244 FCR 424 at [123] yet another Full Court (Barker, Davies and Markovic JJ) cited with apparent approval the remarks of Gray J in Walker, again without referring to Dye. At the same time, though, the Full Court in Chen held that the approach taken by the primary judge — to enable the allegations of victimisation to be considered as part of the applicant’s claim of sex discrimination — disclosed no appealable error.

175    In these circumstances, the remarks in Walker should not preclude the grant of leave: Wilson at [138]. But the question remains whether Mr Chircop has an arguable case of victimisation.

176    An allegation of victimisation is a serious one, particularly since it is a criminal offence to commit an act of victimisation. This circumstance affects the strength of the evidence necessary to establish a claim of victimisation, even in a civil case: Evidence Act 1995 (Cth), s 140. Inexact proofs, indefinite testimony or indirect inferences are not enough: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2 (Dixon J).

177    Although Mr Chircop does not refer to s 42 in his originating application, in his second complaint he claimed to have been victimised on the ground covered by s 42(2)(f) and made substantially the same allegations of victimisation in his originating application. There are two such claims, the first involving conduct in February 2020 and the second involving conduct in November 2020:

Victimisation occurred after an initial complaint detailing 2019’s events was made to the Human Rights Commission. After the first lesson of 2020, he was barred from class and sent a letter of allegations—most of which were unsubstantiated after the lengthy investigation—and he was given a six-month ban from all TAFE NSW campuses. This was later appealed.

…

Victimisation occurred again in November 2020 when former acting Headteacher—now appointed Head of that section—told him to leave campus after telling her that he does not feel comfortable being around her [due to 2019]. Falsified allegations were made by the TAFE NSW staff and the Applicant was banned from all TAFE NSW campuses for twelve months. He can only return after another “History of Violence” panel.

178    In his second complaint, Mr Chircop relevantly stated:

In breach of s.42(2)(f) of the Disability Discrimination Act 1992, I have been victimised as a result of asserting my rights as a student with a disability, by reason of the following events, occurring after I asserted such rights:

a.    The allegations of my alleged behaviour following the period of March 2019 only arose in 2020, not 2019. In addition, there is no mention of anything specific happening in 2020 in the allegations letter. It was admitted by a TAFE NSW staff member that there were complaints passed on about me from staff in 2019, but were only raised following my complaint made against TAFE to AHRC on 3 January 2020;

b.    I was not given a fair opportunity to respond to said allegations as my responses and concerns were ignored or dismissed by the staff of TAFE NSW during the proceedings that were held;

c.    I was subsequently banned from all of TAFE NSW’s premises as a result of mostly false allegations and TAFE NSW’s willingness to believe any allegations against me is victimising;

d.    I will take longer to complete the course, which puts a financial strain on me; and

e.     The above ultimately caused me anguish and humiliation.

(Emphasis added.)

179    The “staff member” referred to in the complaint appears to be Ms Elliott. Mr Chircop claimed that on 18 November 2019 she told him that she had not received any “reports” about his behaviour but that she later told him that “concerns” had in fact been raised about him while he remained under the behaviour management plan and that she had not acted on the concerns until after Mr Chircop made his complaints. He also claimed that he had told Ms Elliott in 2019 that he planned to make a complaint against TAFE to the Commission.

180    It will be recalled that Mr Chircop made his first complaint to the Commission on 8 January 2020. On 15 January 2020 TAFE was notified of the complaint and provided its responses on 6 March 2020. On 11 February 2020, 27 days after it was notified of the complaint, but before it formerly responded, TAFE sent a letter to Mr Chircop containing his alleged breaches of the Student Discipline Policy during 2019 and 2020 and barred Mr Chircop from attending any TAFE campus until an investigation into those allegations was completed. On 5 March 2020, which was one day before its formal response to the Commission was lodged, TAFE informed Mr Chircop of the outcome of the investigation.

181    One might well be suspicious of the timing, since most of the allegations concerned incidents that were said to have occurred over a year earlier. The material before the Court also raises a concern about the fairness of the internal appeal procedure. No reports or statements were attached to the letter. When Mr Chircop asked for more information, he claims that no more information was provided. And the appeal process was concluded within a month.

182    These matters alone, however, are not enough to found a case of victimisation.

183    Section 42(2) requires that the alleged victimisation be “on the ground that” the aggrieved person has done or proposes to do one of the matters in subs (2)(a)–(g)”. This matter must be a “substantial and operative factor” for the detriment imposed. As Buchanan J pointed out in Penhall‑Jones v State of NSW [2007] FCA 925 at [85]:

At least one circumstance from the list in s 42(2) of the Act must be a reason for the alleged detriment or threatened detriment. It must afford a rational explanation, at least in part, ‘why’ an action was taken. The connection cannot be made by a mere temporal conjunction of events, by an incidental but non-causal relationship or by speculation. The establishment of the suggested ground is as much a matter for proper proof as any other factual circumstance.

(Emphasis added.)

184    Although TAFE’s conduct is arguably suspicious, Mr Chircop did not adduce, or point to the availability of, any evidence which could prove that the alleged acts of victimisation were done for a substantial and operative reason that he had asserted, or proposed to assert, any rights he might have under the DDA or the AHRC Act. To the extent that Mr Chircop addressed the question of causation, he submitted:

Rachel Elliott of the HOVB Panel stated on 18 November 2019 in a session with TAFE Ultimo Head Counsellor Paul Chandler that she had not received any reports on Mr Chircop. Ms Elliott admitted however on 8 December 2020 that there were reports from the section in 2019 while a Behavioural Management Plan (JWC-12 and JWC-13) was in effect for Mr Chircop but did nothing with those reports for the length of time between 18 November 2019 and 7 February 2020. Since the Fact Sheet in Annexure JWC-21 and JWC-22 mention a 28-day period of raising issues with a student once received, it would be argued that TAFE found the complainant’s allegations on the first day of 2020 (JWC-21) an opportune time to raise their issues with the Applicant after the 28 days expired 26 December 2019, amalgamated allegations from two sources into one letter and was retaliatory for the Mr Chircop’s First Complaint since Ms Elliott had been made aware in 2019 that Mr Chircop aimed to raise his issues with the AHRC from the meeting with Paul Chandler.

185    On the assumption that these assertions can be proved, they are insufficient to support a claim of victimisation. It is evident that this claim is based on a “mere temporal conjunction of events”, an “incidental but non-causal relationship”, or “speculation”.

186    The second act of victimisation allegedly occurred after the first complaint to the Commission was terminated. The allegation made in the originating application is that “victimisation occurred again in November 2020” and relates to the conduct of Ms Barnett on 19 November 2020. In his submissions, Mr Chircop said he would argue that Ms Barnett “failed her duty of care when she catastrophised a mental health situation [that day] by telling [him] to ‘pack up his things and leave’” the campus and calling security when he told her he did not like being spoken to in that way. Mr Chircop’s claim is that, after he argued with Ms Barnett on 19 November 2020, “falsified” allegations were again made against him resulting in his 12 month exclusion from campus.

187    The fundamental problem with this allegation is that Mr Chircop has not identified any matter covered by s 42(2) for which this conduct was in retaliation. Mr Chircop telling Ms Barnett not to speak to him “like that” after she allegedly told him to leave the classroom cannot be characterised as a reasonable assertion of his rights under the DDA or the AHRC Act for the purposes of s 42(2)(f).

188    Ms Barnett was certainly aware that Mr Chircop had made a complaint about another student on 3 November 2020. The complaint, annexed to Mr Chircop’s affidavit of 20 May 2022, refers to several inappropriate comments made by the student which Mr Chircop contended “created an unsafe and distressing learning environment”. But nothing in that complaint relates to Mr Chircop’s disability or refers to any asserted rights under the DDA or AHRC Act.

189    Mr Chircop did not point to any available evidence to indicate that this complaint or any of his earlier complaints to TAFE and the Commission was or were a substantial and operative factor(s) for the further allegations.

190    This is another application of the logical fallacy that, since TAFE took action against him after he asserted his rights under the legislation, it took the action because he asserted those rights.

191    For these reasons, I am not satisfied that Mr Chircop’s claims of victimisation are reasonably arguable.

Other considerations

192    The parties did not address any of the other permissible considerations listed by Mortimer J in James. Since I have concluded that Mr Chircop does not have a reasonably arguable case, it is not strictly necessary to do so. I would, however, make the following observations.

193    Mr Chircop is understandably aggrieved. His exclusion from TAFE campuses doubtless means it will take (or has taken) him longer to complete his diploma, causing him financial hardship, anguish and humiliation. The whole saga may well have had a deleterious effect on his mental health. The subject matter of his complaint is of importance to him. The Commission did not inquire into the complaint and it appears that TAFE has not attempted to address his allegations outside the Commission process. All these matters would otherwise weigh in favour of a grant of leave. Here, however, the merits of his case are the overriding consideration. As Abraham J remarked in Matthews at [37], “[i]t would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit”.

Conclusion

194    Mr Chircop has made a series of allegations of unlawful discrimination, including victimisation, which are either misconceived or lacking a sufficient foundation. In the circumstances, granting an extension of time to make the application would not be the best way to promote the overarching purposes of the civil practice and procedure provisions. Nor would it be in the interests of the administration of justice to grant leave to do so.

195    Leave to commence the proceeding should therefore be refused and the originating application dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    1 September 2022