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Petrak v Griffith University & Ors[2020] QCAT 351

Petrak v Griffith University & Ors[2020] QCAT 351

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Petrak v Griffith University & Ors [2020] QCAT 351

PARTIES:

Melissa Jane Petrak

(applicant)

v

Griffith University

CAROL-JOY PATRICK

KIERAN TRANTER

(respondents)

APPLICATION NO/S:

ADL092-16

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

11 September 2020

HEARING DATES:

7 and 8 May 2019, 31 July 2019, and 11 May 2020.

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The complaint is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that she had been treated badly by the university – whether the construction of a hypothetical comparator can be informed by factual findings, including the ‘reason why’ – whether direct discrimination

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where a university student with the attribute of impairment complained that the university had not made reasonable adjustments in the timing and manner of her assessments – where her indirect discrimination claim had been struck out by the tribunal – the extent to which a failure to make reasonable adjustments can be direct discrimination

Anti-Discrimination Act 1991 (Qld), s 5, s 8, s 10, s 11, s 178, s 208

Human Rights Act 2019 (Qld), s 13, s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 95

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

Kalu v Brighton and Sussex University Hospitals NHS Trust (2014) UKEAT/0609/12

Lyons v State of Queensland [2015] QCA 159

McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

Petrak v Griffith University and Ors [2018] QCAT 356

Purvis v New South Wales (2003) 217 CLR 92

Shamoon v Chief Constable of the RUC [2003] UKHL 11

Vuga v Persal & Co Trading Pty Ltd [2017] QCAT 368

Waters v Public Transport Corporation (1991) 173 CLR 349

Woodforth v State of Queensland [2017] QCA 100

Yu Ping Xi v WorkCover Queensland [2016] QCATA 134

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

A C Freeman counsel, instructed by Minter Ellison

REASONS FOR DECISION

  1. [1]
    Melissa Jane Petrak made a complaint to the Anti-Discrimination Commission Queensland, now the Queensland Human Rights Commission, about how she had been treated as a student, by Griffith University and by two of its employees.
  2. [2]
    Ms Petrak claimed that she had attributes recognised by the Anti-Discrimination Act 1991 (Qld) and that she had been discriminated against on the basis of those attributes in various ways, and she had also suffered actionable victimisation.
  3. [3]
    The tribunal required Ms Petrak to file her ‘contentions’.  She relied on direct discrimination, indirect discrimination, and victimisation. 

The issues

  1. [4]
    Since the factual and legal issues in the complaint were unclear, and in response to an application from the respondents to strike out the complaint, a member of the tribunal held an oral hearing on 29 March 2018.  What happened at the hearing is reported at Petrak v Griffith University and Ors [2018] QCAT 356, a decision of 9 October 2018.
  2. [5]
    The issues in the complaints of direct discrimination and victimisation were identified.  However, the indirect discrimination complaint was struck out.  The reasons given were:

The Applicant was asked to articulate her complaint of indirect discrimination.  She was unable to say what term or condition might have been imposed on her, being an essential element of such a claim.  I do not think that any such claim can proceed.  To the extent that it currently forms part of the Applicant’s claims it is dismissed.

  1. [6]
    I confine myself strictly to the issues in the direct discrimination and victimisation complaints as identified in that decision as set out below.  That is the correct approach because it is those issues which have defined the course of the proceedings, and which have provided the basis for the evidence which has been adduced.  Also, the known issues may well have influenced discussions between the parties (there have been four compulsory conferences).
  2. [7]
    There is another reason why I must confine myself to the issues as set out in the decision of 9 October 2018.  The order that day was in these terms:

The applicant’s claim is limited to the matters set out in this Decision, subject to a right to seek leave to amend the claim upon notice to the respondents.

  1. [8]
    No application to amend was made.
  2. [9]
    Ms Petrak did seek on two occasions to try to reinstate her indirect discrimination claim.[1]  But instead of appealing against the order striking out that claim, she asked me to reject some of the submissions made on the respondents’ behalf which (she contended) were indirectly discriminatory.  I was unable to accede to these requests because her indirect discrimination claim had been struck out, and in any case it would have been quite inappropriate for the tribunal to interfere with the respondents’ submissions in this way.
  3. [10]
    The issues as identified on 9 October 2018 (using the same numbering as in that decision) were as follows:
    1. (i)
      Whether there was less favourable treatment by the First and Second Respondents in the Community Internship Project because of her impairment:
      1. medical certificates were not accepted as sufficient by the Second Respondent, the convenor of the Community Internship Project;
      2. being encouraged to withdraw from the Trinity Community Internship Project by the Second Respondent;
      3. being withdrawn from the Trinity Community Internship Project;
      4. not being given extra time to submit work to the Second Respondent;
      5. no consideration being given to an inability to type;
      6. work was marked by the Applicant’s son’s ex-girlfriend; and
      7. no portal being made available to her which set out when assessment was due.  This is also said to be because of the Applicant’s political beliefs.
    2. (ii)
      Whether there was less favourable treatment by the First and Third Respondents in the subject Civil Procedure because of impairment and family responsibilities:
      1. no special consideration being made for the Applicant in relation to her assessment and the sitting of a Civil Procedure exam;
      2. the requirement by the lecturer in Civil Procedure, the Third Respondent, to provide more information than that provided on a disability form to enable her to sit the exam;
      3. no response being given to a lengthy letter to the Third Respondent by the Applicant’s Disability Officer;
      4. refusal by the Third Respondent to allow the Civil Procedure exam to be assessed as 100% of the assessment; and
      5. no extra time being given to do Civil Procedure assessment.
    3. (iii)
      In the circumstances alleged by the Applicant that:
      1. others do not have their medical certificates questioned;
      2. others are given extra time if they are injured;
      3. adjustments have been given in other faculties;
      4. it contravenes Griffith University policy to withdraw someone from a project because of their disability;
      5. others have been allowed to do a 100% exam or a further exam.
    4. (iv)
      Victimisation on the basis that the Applicant was not granted ‘recognised prior learning’ in the Arts Faculty of the First Respondent.  Whether this was because the Applicant had complained to the Equity department of the First Respondent in July 2015 about the alleged conduct of the Second Respondent.
  4. [11]
    Of these issues, on behalf of the respondents it is conceded that Ms Petrak:[2]
  1. (a)
    at all material times, had a disability being an impairment for the purposes of the Anti-Discrimination Act 1991 (Qld) and had been registered with Disability Services at the university since 2011;
  2. (b)
    has family responsibilities and that she may have political beliefs.
  1. [12]
    In this particular case, the precise nature of Ms Petrak’s disability and the effect of it on her everyday life is not relevant to the outcome of the complaint.  Nor are the nature of her stated family responsibilities and political beliefs.  Hence there is no reason for me to recite details of these attributes in these reasons.

Hearing of liability only

  1. [13]
    The matter was listed before me for hearing over two days on 7 and 8 May 2019.  At the commencement of the hearing I raised with the parties the issues as identified on 9 October 2018.
  2. [14]
    It quickly became apparent that there were also difficult issues of remedy should Ms Petrak succeed in her claim.  For example, she was claiming ongoing loss of earnings by having been disadvantaged as a student at the university.  In the circumstances, all parties agreed that it was right to limit the hearing to liability only.  Should the tribunal find in Ms Petrak’s favour then further directions would be given to enable the issues on remedy to be identified and resolved by the tribunal.

How this complaint has been resolved by the tribunal

  1. [15]
    I have had to resolve this matter without Ms Petrak having completed her cross-examination of the respondents’ witnesses and without receiving final oral submissions.  I need to explain why this happened because Ms Petrak has in the past strongly argued that she should complete her cross examination and that she should address the tribunal orally, rather than in writing.
  2. [16]
    On day 1 of the hearing, that is 7 May 2019, Ms Petrak gave evidence and was cross examined.  Her case closed.  The Second Respondent, Ms Patrick, was called and was cross examined by Ms Petrak for 1½ hours.
  3. [17]
    On day 2 Ms Petrak continued her cross examination of Ms Patrick but after a short time was unable to continue.  The matter was adjourned part-heard and relisted for completion on 31 July 2019.
  4. [18]
    On 31 July 2019 Ms Petrak did not attend the hearing.  She said that she was unwell and this was supported by medical evidence filed subsequently.
  5. [19]
    Following the hearing on 31 July 2019 the tribunal gave directions that it proposed to proceed to a final decision on the papers having regard to the evidence already given, with written final submissions.  Each party was given an opportunity to object to this proposed course.  There was no objection on behalf of the respondents, but Ms Petrak did object and so I held a directions hearing on 4 November 2019, where I discussed with the parties the most appropriate way to proceed.  Ms Petrak explained that she was better orally than in writing, and was better in the afternoons. 
  6. [20]
    So the matter was relisted for completion over two afternoons on 11 and 15 May 2020.  Because of the Covid-19 pandemic those afternoon hearings had to be listed as telephone hearings.
  7. [21]
    On 11 May 2020 although Ms Petrak was on the telephone at the hearing, difficulties seemed to prevent her from participating in the hearing and it had to be abandoned.  In the light of these difficulties the hearing on 15 May 2020 was vacated.  Directions were made giving all parties one final opportunity to say how the application could be resolved.  On behalf of the respondents it was suggested that the tribunal should make a decision on the papers in the light of the evidence already given with written final submissions, but Ms Petrak did not offer any other solution.
  8. [22]
    On 22 June 2020 my directions were for written final submissions following which a final decision on this matter would be made on the papers having regard to the evidence already given.
  9. [23]
    Ms Petrak has not filed written final submissions.
  10. [24]
    By section 31 of the Human Rights Act 2019 (Qld), but also as a matter of procedural fairness and natural justice, parties have a right to a fair hearing.  That right may only be limited when justified, taking into account all the constraints and factors in section 13 of the Act.
  11. [25]
    I am satisfied that Ms Petrak has been given a reasonable opportunity to complete her cross examination and to make final submissions.[3]  I am also satisfied that her complaint is not weakened by the course taken to resolve it.  Ms Petrak has given her evidence and been cross examined.  I note that counsel for the respondents curtailed the cross examination of Ms Petrak to keep within the timetable established on day 1.  I was assisted by Ms Petrak’s cross examination of Ms Patrick who was an important witness, and this helped to give me a taste of the matter.  Ms Petrak has also filed a considerable amount of written material with details of her claim. 
  12. [26]
    I am uncertain about Ms Petrak’s suggestion that she is better orally than in writing.  She is able to put things in writing if she needs to, and indeed when going through the timetable with her on day 1 of the hearing, she said that she would be able to make final submissions in writing.[4]
  13. [27]
    It seems to me that trying to relist this matter is not going to improve my ability to resolve this complaint, but would prejudice the respondents in the manner described in the submissions about this.[5]  I am not confident that any relisted hearing would proceed.  The last three hearings have had to be aborted.  On 4 November 2019 Ms Petrak gave me ‘100% assurance’ that she would be able to participate if the matter were relisted, but this did not turn out to be the case, despite limiting the hearings to afternoon only.  And Ms Petrak has not filed written final submissions.
  14. [28]
    Section 208 of the Anti-Discrimination Act 1991 (Qld) provides that I am not bound by the rules of evidence,[6] and I am aware that I can, in an appropriate case, reach an inference.[7]  However, it is right to say that the outcome of this complaint does not turn on the credibility of those witnesses who have not been cross examined.
  15. [29]
    In so far as the proceedings were not completed in the usual way, this was required by the need to balance the right of all the parties to a fair hearing.  Overall, I am satisfied that a fair hearing has been achieved.

The law which applies

  1. [30]
    It is a contravention of the Anti-Discrimination Act 1991 (Qld) for an educational authority to discriminate (of relevance to this complaint) by treating a student unfavourably in any way in connection with the student’s training or instruction. 
  2. [31]
    In this complaint Ms Petrak says she was discriminated against within the terms of section 10 of the Act (direct discrimination).  Direct discrimination is prohibited by section 9.  By section 10, direct discrimination happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.  The attributes are listed in section 7 and include impairment, political belief or activity and family responsibilities, relied on in this case. 
  3. [32]
    By section 129 victimisation, as defined in section 130, is a contravention of the Act.
  4. [33]
    In a direct discrimination complaint, section 10 requires a comparison to be made between the treatment of the complainant and the treatment of an actual or hypothetical comparator.  In this case there are no actual comparators so it is necessary to construct hypothetical comparators.  This is one of those cases where success or failure for the applicant in some of her complaints depends on the characteristics of the hypothetical comparator.  There have been several recent reported cases disclosing the decision-maker’s difficulties in this area.
  5. [34]
    The complaints fall into one or more of these three categories and it is necessary to consider the correct construction of the hypothetical comparator separately for each of the categories:
  1. (a)
    Straightforward complaints – (ii)B (being encouraged to withdraw from a course), (ii)C (actually being withdrawn from a course), (ii)F work marked by someone with conflict of interest, (ii)G (information on portal not available).
  2. (b)
    Treatment related to disability complaints – (ii)A (medical certificates not accepted), (iii)B (asking for more information than on disability form), (iii)C (no response to disability officer).
  3. (c)
    The reasonable adjustments complaints – (ii)D (not being given extra time to submit work), (ii)E (no consideration given to inability to type), (iii)A (no special consideration given for assessments), possibly (iii)C (no response to disability officer), (iii)D (refusal to allow one exam to be 100% of marks) and (iii)E (no extra time for an assessment).
  1. [35]
    The importance of the comparator in direct discrimination cases in the Anti-Discrimination Act 1991 (Qld) can be seen from the definition of direct discrimination in section 10:

10 Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example—

R refuses to rent a flat to C because—

  • C is English and R doesn’t like English people
  • C’s friend, B, is English and R doesn’t like English people
  • R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person’s motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people.  R’s conduct amounts to discrimination against C.

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [36]
    Making the comparison of the treatment of the complainant with that of the comparator therefore answers the two questions which determine whether or not there had been direct discrimination: (a) whether there was less favourable treatment and (b) if so, whether the less favourable treatment was on the basis of an attribute. 
  2. [37]
    Under the wording of section 10, the comparator is a person in the same or not materially different circumstances, but without the attribute.  Deciding for this purpose what differences in circumstances are ‘material’ and what are ‘not material’ can in some cases be a crucial but necessary exercise.  This is what must be decided under the Queensland legislation; in other jurisdictions which require such a comparison, the statutory wording defining the comparator may be slightly different.
  3. [38]
    Where the task of defining the comparator is difficult, it is helpful to recognise that the comparator is simply a statutory tool enabling the real question to be answered accurately and objectively, with proper regard for the fact that a person may act unconsciously or as a result of unrecognised prejudices.  In this respect, the United Kingdom cases are helpful.  As stated by Lord Nicholls in Shamoon v Chief Constable of the RUC [2003] UKHL 11 when referring to the two step approach of deciding firstly whether there was less favourable treatment and then if so, the reason for that treatment:[8]

No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason-why issue.  The two issues are intertwined.

  1. [39]
    It is also understood that in some cases it will be necessary to make findings of fact and find the reason why before a comparator can be constructed.  This is explained in Kalu v Brighton and Sussex University Hospitals NHS Trust (2014) where it was said that ‘the purpose of making the comparison needs to be understood before a comparator may properly be identified’.[9]  That this can be the correct approach when necessary in Queensland is also shown by section 10(4), which is engaged when a person has two or more reasons for the less favourable treatment.  In such circumstances, the tribunal would need to find whether the attribute was a substantial reason for the treatment, and then proceed to construct a comparator to suit.  I discussed this effect in Vuga v Persal & Co Trading Pty Ltd [2017] QCAT 368 and tried to explain why, because of the effect of section 10(4), I needed to distinguish the approach suggested in Purvis v New South Wales (2003) 217 CLR 92 in so far as it differed.[10]
  2. [40]
    As demonstrated by lines of authority in several other jurisdictions in Australia, it is now understood that in appropriate cases, the two step approach in Purvis can be regarded as a single question.[11]  However, under the Queensland legislation the comparison of the treatment of the complainant with that of the comparator is necessary even where the reason why is clear.  This is a product of the wording of section 10(1), which seems always to require the comparison to be made.  As explained in Dovedeen Pty Ltd & Anor v GK [2013] QCA 116, section 10 is akin to a deeming provision and the statutory definition must be applied to decide whether there was direct discrimination on the basis of an attribute.  In turn, this means that the characteristics of a comparator must always be identified.[12]
  3. [41]
    In this case, as shown by the characteristics of the comparators which I have chosen, the choice of those characteristics has been informed by findings of fact and the reason why.  It seems to me that this is the correct approach in the light of the analysis above.  Also it seems to me that it is not inconsistent with Purvis.  It is notable that in Purvis the ‘reason why’ was not in dispute.  The appeal proceeded on the premise that the principal had decided to exclude the complainant from the school because of bad behaviour,[13] and it seems clear that the comparator was constructed on that basis, it being said that there was no reason to reject that reason,[14] and that it would be artificial to exclude it.[15]  Hence, as stated in Purvis itself, ‘the central question will always be – why was the aggrieved person treated as he or she was?’.[16]
  4. [42]
    The minority in Purvis said that the provisions of the Disability Discrimination Act 1992 (Cth) should not be construed narrowly to correct ‘centuries of neglect of, and discrimination and prejudice against, the disabled’.[17]  They identified the concern of the Full Court of the Federal Court as being the ‘draconian consequences’ on the first respondent to read the Act otherwise,[18] but that it was essential ‘to give full effect to the language and purpose of the ameliorative provisions whatever opinion individual judges may have of the justice or wisdom of particular provisions’.[19]  In 2009 the definition of ‘disability’ in the Disability Discrimination Act 1992 (Cth) was amended by adding these words:-

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

  1. [43]
    In Queensland, a result similar to the 2009 amendment is achieved by section 8 of the Anti-Discrimination Act 1991 (Qld).  It reads:

8 Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

  1. [44]
    A explained in Woodforth v State of Queensland [2017] QCA 100, [53] and [57], in a case where a characteristic which a person with an attribute generally has or which is often imputed to them is in issue, then paragraphs (a) and (b) of section 8 require a comparator not to have that characteristic.  In other words, in such cases the characteristic will always be a materially different circumstance for the purpose of section 10.  This means that it would be directly discriminatory to treat a person with an attribute and a section 8 characteristic of that attribute less favourably than a person without the attribute and a section 8 characteristic of that attribute.
  2. [45]
    I turn now to the hypothetical comparators which need to be constructed in Ms Petrak’s case.

Straightforward complaints 

  1. [46]
    For the first category of complaints, the straightforward ones, this is easy.  It is simply a student in the same circumstances but without the attribute relied on.

Treatment related to disability complaints 

  1. [47]
    The second category of complaints is more difficult because the circumstances in which Ms Petrak found herself, that is having to submit medical certificates, having a disability form, or having recommendations from a disability officer, would not have happened to a student without her attribute of impairment.  It is sometimes argued by respondents that such a complaint should be dismissed because it is impossible to construct a comparator.  And it is sometimes argued by complainants that the complaint should succeed because the only comparator that can be constructed is a person without the attribute and who did not suffer the treatment.
  2. [48]
    The conundrum is resolved by constructing a comparator in such a way as will enable the real question to be answered, which in Queensland is: was the complainant treated unfavourably because of attribute or a section 8 characteristic of that attribute?  As explained in Kalu, the exact circumstances which are material to the construction of the comparator to enable that question to be answered may turn on findings of fact.
  3. [49]
    Applying this approach to the complaint about not accepting medical certificates, Ms Petrak submitted the medical certificates to try to achieve a relaxation of the usual rule about one of her assessments.  The respondents’ explanation for not accepting the medical certificates was that they did not provide sufficiently relevant information.  The comparator would depend on whether I accept that explanation.  If I accept that explanation then the comparator would be a student without the attribute of impairment who needed some relaxation of the usual rule about an assessment and who submitted documents in support of the request which did not provide sufficiently relevant information.  If I do not accept the explanation then the comparator would be a student without the attribute of impairment who needed some relaxation of the usual rule about an assessment and who submitted documents in support of the request which did provide sufficiently relevant information.
  4. [50]
    It can be seen therefore, that before constructing the comparator I have had to decide whether I accept the reason for not accepting the medical certificates was a genuine one and unaffected in any way either consciously or unconsciously, by the attribute.

Reasonable adjustment complaints 

  1. [51]
    The third category of complaints are the ‘reasonable adjustments complaints’.  The complaints are that the university failed either of its own initiative, or when prompted, to remove or reduce the substantial disadvantage faced by Ms Petrak in her assessments by reason of her disability.  She says that the usual university rules about the timing and manner of those assessments should have been relaxed in her case, to remove or reduce that disadvantage. 
  2. [52]
    In many jurisdictions, there is a statutory duty to make adjustments to remove or reduce substantial disadvantage by reason of disability, provided such adjustments would be reasonable in all the circumstances of the case.[20]  This has been described as positive discrimination, in the sense that a person with a disability may by such provisions, be entitled to more favourable treatment than a person who does not have a disability. 
  3. [53]
    There are no such provisions in the Anti-Discrimination Act 1991 (Qld).  Instead, the Act seeks to achieve a similar result by a combination of the indirect discrimination provisions in section 11 and the addition of section 10(5) in the direct discrimination provisions.
  4. [54]
    The indirect discrimination provisions in section 11 apply where, subject to the test of reasonableness, there is a condition, requirement or practice which is or will be imposed on a person, and which has a disparate impact on the person because of the person’s disability.  It would have been on that basis that Ms Petrak’s reasonable adjustments complaints might have proceeded if her complaint of indirect discrimination had not been struck out.
  5. [55]
    My concern is the extent to which the reasonable adjustments complaints are capable of coming within the direct discrimination provisions in section 10.
  6. [56]
    In the reasonable adjustments complaints Ms Petrak is saying that she was treated the same way as other students, but because of her attribute, the result was that she was treated less favourably than those other students.  In Yu Ping Xi v WorkCover Queensland [2016] QCATA 134, one of the complaints was that a person whose English was poor was not offered an interpreter when speaking to WorkCover on the telephone.  In this respect therefore she was treated the same way as other callers, but she said she was at a disadvantage when compared with those other callers.  The Appeal Tribunal, citing Waters v Public Transport Corporation (1991) 173 CLR 349, was of the view that the words of section 10 required that there was different treatment of the complainant compared with the comparator but left it to the tribunal on remission to decide whether there was such different treatment.[21] 
  7. [57]
    Certainly it is possible to conceive of situations like this where the same treatment, or a failure to change the usual treatment, results in less favourable treatment to a particular complainant.  And we know from section 10(5) that such a result is within section 10 at least where section 10(5) applies.  Conceptually therefore such a result is within section 10 in cases where section 10(5) does not apply.
  8. [58]
    So on the face of it, the reasonable adjustments complaints could come within section 10.  But it seems to me there is a constraint upon this which arises from the construction of the comparator itself. 
  9. [59]
    Taking Ms Petrak’s complaint that the university failed either on its own initiative or when prompted, to adjust the timing and manner of her assessments and this was less favourable treatment, the question arises whether the comparator is:
  1. (a)
    a student without the attribute of impairment who needs adjustments in the timing and manner of her assessments; or
  2. (b)
    a student without the attribute of impairment who does not need adjustments in the timing and manner of her assessments.
  1. [60]
    If the comparator is in terms of (b) then it would mean that (except for the work area) there would be a positive and absolute duty in every case to ensure that a person with a disability is not disadvantaged compared with others in the same or not materially different circumstances who did not have a disability.[22] 
  2. [61]
    That this is not what is intended by section 10 is shown by two things.
  3. [62]
    Firstly, it would mean that the safeguard in section 11 (indirect discrimination) that it is only the imposition of unreasonable conditions, requirements or practices having a disparate impact that would amount to indirect discrimination, would be lost.  This is because section 10 would make it discriminatory even to impose reasonable conditions, requirements or practices having a disparate impact.
  4. [63]
    Secondly, it would be quite inconsistent with section 10(5) which makes specific provision where a person requires special services or facilities.  Section 10(5) forces the comparator to be of type (b) when special services or facilities are required.  In such cases the comparator would be someone without the attribute of impairment in the same or not materially different circumstances as the complainant and without any requirement for special services or facilities.[23]  Where section 10(5) applies therefore, it will be difficult to deny discrimination where the special services or facilities have not been provided to a person who required them by reason of a disability.  Any such discrimination would, however, not be unlawful if the provision of the special services or facilities would be an unjustifiable hardship as defined in section 5.[24]
  5. [64]
    Special services or facilities are not defined in the Act, but do not apply to any of Ms Petrak’s allegations. 
  6. [65]
    It is my view therefore, that for her reasonable adjustments complaints the comparator must be in terms of (a) above. 

Considerations in each of the issues

  1. [66]
    The context of the complaint is that Ms Petrak started the 1276 Bachelor of Laws/Bachelor of Arts degree course with the university in 2011.  That course required 490 credit points.  At the end of the semester in May 2015 she requested a transfer into the ‘new law program’; that is, a transfer to the 1485 Bachelor of Laws/Bachelor of Arts degree course, requiring 440 credit points. 
  2. [67]
    As part of the degree course on which she was enrolled, Ms Petrak needed to be assessed for Civil Procedure.  Her assessment for Civil Procedure in Semester 1 2014 was deferred until 2015.  Issues (iii)A to (iii)E concern what happened with respect to the Civil Procedure assessment in 2015 and subsequently.
  3. [68]
    Ms Petrak was also enrolled in the Community Internship Project (CIP).  Issues (ii)A to (ii)G are about this.  The CIP was 50 hours of internship with a non-profit organisation external to the university.  Although there was no requirement for an undergraduate to do an internship, it did carry marks.  The stages and marks were Internship Plan (worth 25 marks), Peer Discussion (20 marks), Internship Report (45 marks) and Professional Conduct (10 marks).[25] 
  4. [69]
    Initially, having attended an interview, Ms Petrak enrolled with Trinity Disability Support Services (Trinity) to do her CIP in December 2014 and January 2015.  When she was unable to complete that internship, she enrolled to do her CIP with a different organisation, Reporters Without Borders.  This was for Semester 1 of 2015.  Ms Petrak completed the necessary internship hours with Reporters Without Borders by 20 March 2015.[26]  The reason why she changed from one CIP to another may be controversial and is best left for findings when dealing with each issue below.
  5. [70]
    On 3 October 2014 Ms Petrak was involved in a motor vehicle accident.  The respondents concede that this caused her to have a second impairment for the purposes of the Anti-Discrimination Act 1991 (Qld).
  6. [71]
    I shall now consider the issues one by one.

Issue (ii)A 

  1. [72]
    This is an allegation that Ms Petrak’s medical certificates were not accepted as sufficient by Ms Patrick, the convenor of the Community Internship Course.  Issue (iv)A may be said to be relevant: ‘others do not have their medical certificates questioned’.
  2. [73]
    Ms Petrak’s evidence about this is on pages 8, 13 and 15 of the original complaint.  When dealing with this issue it is necessary to consider all the occasions when she provided medical certificates, that is on 19 December 2014, 5 February 2015, 16 February 2015 and 2 May 2015. 
  3. [74]
    On the first occasion, 19 December 2014, Ms Petrak submitted a medical certificate from Dr Mark Noden dated 17 December 2014.  She submitted this to support her request for an extension of time to submit the Internship Plan.  The medical certificate stated that Ms Petrak ‘had sustained a tendon tear involving her right shoulder which will have affected her ability to write at recent exams’.  Ms Patrick informed Ms Petrak in an email of 22 December 2014 that the medical certificate was insufficient and she should use an official university medical certificate template in accordance with the Study Guide.[27]  The email explained that the official university medical certificate template asked the correct specific question about how the injury will affect the assessment.  The email explained that the problem with Dr Noden’s certificate as submitted was that it only referred to past effects, and not future ones. 
  4. [75]
    Then Ms Petrak requested that she be given a Results Withheld grade on her academic transcript on the basis of a promise to commence her CIP in late February.  On 5 February 2015 Ms Petrak provided some medical information in support, but this information was largely historical (from October and November 2014), the most recent document being a record of an ultrasound on 15 January 2015.  So Ms Patrick regarded that medical material as insufficient for the Results Withheld application. 
  5. [76]
    However, the next medical report which was provided on 16 February 2015, was sufficient and Ms Patrick used this to present the application for a Results Withheld grade to the Assessment Board.
  6. [77]
    The fourth time Ms Petrak submitted medical evidence was on 2 May 2015, when she provided a medical report from Dr Glenn Rosendahl.  This was submitted in an attempt to avoid having a reduction of 10% in the marks because her Internship Plan was a day late.[28]  Ms Petrak’s explanation for being a day late was that  she had had a specialist appointment on the day it was due.  Ms Patrick informed Ms Petrak that to save the marks she would need proof of this appointment.  However, Dr Rosendahl’s medical certificate did not provide such proof.
  7. [78]
    I accept the case presented on behalf of the respondents that on each occasion when medical certificates were provided by Ms Petrak as described above, they were insufficient to achieve what Ms Petrak wanted except for the certificate provided on 16 February 2015.  In my view Ms Patrick had little choice but to refuse to accept the other certificates as sufficient, unless she was willing to favour Ms Petrak over other students in the same situation, which as she explained in evidence, she was not willing to do.  I accept that she was not willing to do this because (as she told me) she endeavoured to ‘maintain equity and fairness across all students’ this being a requirement of the university’s policies and procedures, and that she applied ‘the same policies as are administered for all other students’.[29]  It follows that Ms Patrick’s decisions about the medical certificates were not influenced by Ms Petrak’s attribute of impairment.
  8. [79]
    To apply the statutory test therefore, in deciding that the medical information was inadequate on the three specified occasions to achieve the purpose for which they were required, Ms Patrick did not treat Ms Petrak less favourably than she would have treated another student in the same or not materially different circumstances but who did not have the attribute of impairment.  That hypothetical comparator is a student who did not have the attribute of impairment, who wanted a relaxation of the usual rule about an assessment and who provided documentation in support of the request which did not provide sufficiently relevant information.  Ms Patrick would have treated such a student in the same way.  This part of the complaint fails because this was not direct discrimination.

Issue (ii)B and Issue (ii)C 

  1. [80]
    It is convenient to take these two issues together.  The first is a complaint that Ms Petrak had been encouraged to withdraw from the Trinity Community Internship Project by Ms Patrick and the second is that she was actually withdrawn from it.  Issue (iv)D may be said to be relevant: ‘it contravenes Griffith University policy to withdraw someone from a project because of their disability’. 
  2. [81]
    The Trinity Community Internship Project was the CIP which Ms Petrak had enrolled to do over the summer semester of 2014/15, but which she did not do. 
  3. [82]
    Ms Patrick did say in an email of 22 December 2014:

I notice from your Academic Transcript that you are still endeavouring to carry a full study load for the second half of summer regardless of your physical problems.  This is going to make it close to impossible for you to engage fully in Community Internship and my suggestion would be that you delay the internship.  I can organise for a “continuing” grade to be recorded on your transcript at the end of semester so that you don’t have to re-enrol in the course if you wish.

  1. [83]
    The email also said that if Ms Petrak was going to continue with the internship then she would need to discuss how she was going to deal with all her study commitments.
  2. [84]
    Ms Patrick became aware that Ms Petrak would be requiring hospital treatment, and on 5 February 2015 asked what were the chances of Ms Petrak being able to complete her studies in Semester 1 as well as the CIP, saying ‘Your best option may be to apply in retrospect for withdrawal on compassionate grounds, so you can pick up the course when you are physically able’.[30] 
  3. [85]
    By 17 February 2015, Ms Patrick informed Ms Petrak that the Trinity internship was no longer available, so that there were two options: either select another internship or apply for compassionate withdrawal, which would leave it open to do the CIP at Trinity.[31]  There was no response to this, so on 24 February 2015 Ms Patrick emailed to say that she assumed Ms Petrak had chosen compassionate withdrawal.
  4. [86]
    Meanwhile, unknown to Ms Petrak at the time, her supervisor at Trinity has expressed unhappiness with her lack of contact and said that Trinity was unwilling to give her a second chance.[32]  It was in this way that Ms Petrak lost the Trinity internship. 
  5. [87]
    It can be seen therefore that the withdrawal from the Trinity internship itself was not caused by anything Ms Patrick did, or the university did, but was caused by Ms Petrak’s failure to take up the internship.  Accordingly allegation (ii)C fails.
  6. [88]
    As for allegation (ii)B (being encouraged to withdraw from the Trinity internship), offering Ms Petrak a way to withdraw from the Trinity internship in the way in which this was done could be regarded as encouragement to do so.  Ms Patrick was concerned that Ms Petrak was overburdening herself and identified a way for her to withdraw from the CIP without academic disadvantage.  In the circumstances the treatment was not unfavourable to Ms Petrak.
  7. [89]
    When comparing this treatment to the way in which a hypothetical comparator would have been treated, that is to say a student who would have caused Ms Patrick concern that she was overburdening herself but without the attribute of impairment, then I am sure Ms Patrick would have treated such a student in the same way as she treated Ms Petrak.  This is because I accept Ms Patrick’s explanation that she was trying to assist and support Ms Petrak.[33] 
  8. [90]
    This part of the complaint fails because this was not direct discrimination.

Issue (ii)D 

  1. [91]
    This issue was not being given extra time to submit work (relating to the CIP).  Issues (iv)B and (iv)C may be said to be relevant: ‘others are given extra time if they are injured’ and ‘adjustments have been made in other faculties’. 
  2. [92]
    The complaint is that Ms Petrak asked for an extension of the ‘first assessment’, that is the Internship Plan, and for the second assessment, that is the Peer Discussion, both of which were refused.[34]  It may also be a complaint that more time was not given to submit the Internship Report.
  3. [93]
    In fact, Ms Patrick did permit two short delays in the submission of the Internship Plan.[35]  Despite this, Ms Petrak submitted it a day late.  Issue (ii)D is incorrect therefore in so far as it is about the Internship Plan.  In so far as the complaint is about not being allowed an extra day to submit the Internship Plan, this is discussed under issue (ii)A above.
  4. [94]
    The evidence about a request for an extension of the Peer Discussion, its refusal, and any detriment arising from it, is insufficient to support this particular claim.  It does seem to be the case that it was submitted late, but there is no evidence that it was marked down for that reason.
  5. [95]
    In so far as the complaint may be about not being given more time to submit the third assessment, the Internship Report, this was due on 29 May 2015 and it is true that no extension was granted in the first instance.  However, Ms Petrak was permitted to resubmit the Internship Report and was given until 10 July 2015 to do so, which deadline she was able to meet. 
  6. [96]
    In so far as the complaint might be that even more time should have been given to submit the Internship Report,[36] the difficulty is that Ms Petrak was not asking for this at the time.
  7. [97]
    With respect to all three pieces of work therefore, the factual basis of issue (ii)D is incorrect. 
  8. [98]
    This allegation also seems to be based on a misunderstanding that it is possible directly to discriminate against someone who has an attribute, simply by not treating them well.  This seems to be what is meant by issue (iv)B – ‘others are given extra time if they are injured’ and (iv)C – ‘adjustments have been given in other faculties’.  This is not direct discrimination.  Direct discrimination requires different and less favourable treatment because of an attribute or a section 8 characteristic of the attribute.
  9. [99]
    This part of the complaint fails.

Issue (ii)E

  1. [100]
    This issue was no consideration being given to an inability to type.  This allegation suffers from a lack of evidence in support, and without a final submission from Ms Petrak it is difficult to understand.  It is not a complaint that Ms Petrak should have been assisted with ‘special services or facilities’, within section 10(5) of the Act.
  2. [101]
    This allegation is understood by the respondents as being based on unexpected difficulty in the Reporters Without Borders internship because that internship involved a lot of typing.[37] 
  3. [102]
    Alternatively it could be a complaint that Ms Petrak lost marks for her Internship Report because she had cut and pasted material which then should have been updated  but was not.[38]  It seems possible that she may have had difficulty updating the material if she could not type.
  4. [103]
    When Ms Petrak enrolled for the CIP in the summer semester of 2014/15, Ms Petrak answered ‘no’ to a question whether she had any health related conditions which may affect her in the internship.  The form was completed prior to her motor accident on 3 October 2014, although it was added to after her accident.[39]
  5. [104]
    Then on 19 December 2014 Ms Patrick received the medical certificate of Dr Noden on 17 December 2014 which stated:[40]

This is to certify that Melissa has sustained a tendon tear involving her right shoulder which will have affected her ability to write at recent exams.

  1. [105]
    That medical evidence was submitted by Ms Petrak to support her request for more time to submit the Internship Plan.
  2. [106]
    Then on 2 May 2015 Ms Patrick received a medical certificate from Dr Rosendahl dated 15 April 2015 which stated:[41]

Ms Melissa Petrak suffered a motor vehicle accident on October 10, 2014, and suffered injuries to her RIGHT shoulder and LEFT elbow, low back and LEFT knee.  These injuries adversely affect her ability to get around, write and type.  She has been advise [sic] to have a knee operation for the cruciate ligament damage to the knee. The upper limb injuries are amenable to operative intervention as well.

In the meantime she is limited in her ability to write and type, as well as to drive her car into limited parking spaces.  I request these factors be taken into account in making deadlines for her assignments.

  1. [107]
    This was submitted by Ms Petrak to show why the Internship Report was submitted a day later than the deadline.
  2. [108]
    It is noted that the medical evidence does not support the factual basis in issue (ii)D that Ms Petrak had an ‘inability to type’.  More that her ability to type had been affected by the injury. 
  3. [109]
    In evidence, Ms Petrak complained that Dr Rosendahl’s medical certificate was ‘ignored’.[42]
  4. [110]
    Had the Queensland legislation imposed a positive duty on the university to ensure that a student with a disability should have such reasonable adjustments as were required to remove or reduce a substantial disadvantage arising from the disability, or had this been an indirect discrimination case, it might be said that the medical evidence could have triggered some enquiry and response by the university to see what adjustments ought to be made.  But such considerations have no relevance to a direct discrimination complaint except where special services or facilities are required.
  5. [111]
    It is clear to me that the reaction of Ms Patrick and of the university generally to the possibility that Ms Petrak had difficulty typing was not influenced by the attribute of impairment.  Both Ms Petrak and the university would have reacted in the same way to a student in the same or not materially different circumstances but without the attribute of impairment.
  6. [112]
    This part of the complaint fails.

Issue (ii)F 

  1. [113]
    This issue is that work was marked by Ms Petrak’s son’s ex-girlfriend.  The complaint here is that the son’s ex-girlfriend was the academic adviser who marked the second piece of assessment for the CIP, that is the Peer Discussion.  Ms Petrak says that she got a low mark but that this was because the academic adviser had a ‘conflict of interest and was unfair to me as a sole parent, with disabilities’.[43]
  2. [114]
    The less favourable treatment alleged here as established by the list of issues, is not that the mark was lower than it should have been because of any attribute, but that if Ms Petrak had not had the attribute of impairment the Peer Discussion would have been assessed by someone more neutral and it was less favourable treatment for it to be marked by the academic adviser concerned. 
  3. [115]
    Ms Patrick as course convenor of the CIP was responsible for choosing the academic advisers,[44] and I accept that she did choose the academic adviser concerned.  However, I accept from Ms Patrick’s evidence that there was no conscious decision in choosing this academic adviser to treat Ms Petrak less favourably than another student would have been treated; to the contrary, the idea was to provide Ms Petrak with a fresh start for Semester 1, 2015 and Ms Patrick thought that would be beneficial.[45] 
  4. [116]
    There is little room for any unconscious attempt on Ms Patrick’s part to cause difficulties for Ms Petrak because of a conflict of interest because (on my findings) Ms Patrick was unaware of the possibility of any such conflict.[46]  Although Ms Petrak said in evidence that she had made Ms Patrick aware of this, I do not accept this in the light of Ms Patrick’s denial about it.  This is because what Ms Petrak said about this when giving evidence made the possibility of any perceived conflict of interest unlikely.[47]
  5. [117]
    In any case there is nothing to suggest that the way Ms Patrick dealt with this was anything to do with Ms Petrak’s attribute of impairment.  It is clear to me that Ms Patrick would have acted the same way in the case of a student in the same or not materially different circumstances but without the attribute of impairment.
  6. [118]
    This part of the complaint fails.

Issue (ii)G 

  1. [119]
    This issue is no portal being made available which set out when the assessment was due.  This allegation is not that Ms Petrak could not access the portal at all.  It was that the Reporters Without Borders CIP material did not appear on her portal.  Her case is that this she was deliberately being shut out from access to the materials she needed, in particular the templates she needed for the assessments, and so she was put to a distinct disadvantage compared to other students.[48] 
  2. [120]
    Ms Patrick accepted that there was sometimes a delay in materials becoming available on the portal,[49] and the emails demonstrate that the first time the necessary materials for the Reporters Without Borders CIP appeared on Ms Petrak’s portal was on 23 March 2015.[50]  Students could however, access the necessary material in other ways if they needed to.
  3. [121]
    In the circumstances I do not accept that Ms Petrak was at a disadvantage compared with other students with respect to the accessibility of her course materials.  She was not treated any less favourably than other students were, or would have been treated, and certainty not because of the attribute of impairment, or (as she has also alleged) by reason of the attribute of political belief.
  4. [122]
    This part of the complaint fails.

Issue (iii)(A) and issue (iii)E 

  1. [123]
    It seems convenient to take these together.  Issue (iii)A is that no special consideration was made for Ms Petrak in relation to her assessment and the sitting of a Civil Procedure exam, and issue(iii)E is that no extra time was given for her to do the Civil Procedure assessment.  Issues (iv)B and (iv)C may be said to be relevant: ‘others are given extra time if they are injured’ and ‘adjustments have been made in other faculties’. 
  2. [124]
    These rather wide ranging allegations suffer from not being particularised.  It seems reasonable however, to identify the nature of the allegation from Ms Petrak’s complaint to ADCQ.[51]  This is because any variation from the complaint would require an application to amend the complaint,[52] and there has been no such application.
  3. [125]
    From the complaint to ADCQ, leaving aside the discrete issues in (iii)B to (iii)D, it can be seen that the complaint which concerns the Civil Procedure examination is about Ms Petrak not being permitted to sit a deferred Civil Procedure examination in July 2015 or thereabouts, with extra time as recommended by the university’s disability officer in an email of 14 July 2015.[53]  Ms Petrak has called such an adjusted examination procedure a ‘disability exam’.  The university calls it an ‘Alternative Examination Arrangement’ or AEA.  This would mean an examination adjusted to remove or reduce any substantial disadvantage suffered by a student by reason of a disability. 
  4. [126]
    From the evidence it appears that what happened was the result of an unfortunate administrative error.  Having enrolled in Semester 1 2015, Ms Petrak was scheduled to sit the Civil Procedure examination on 24 June 2015.[54]  On 19 June 2015 she applied with a medical certificate from her GP for the examination to be deferred.[55]
  1. [127]
    This request was considered by an officer in the Student Administration, Examinations and Timetabling office, and was initially refused on the basis that the medical certificate did not have a provider number and contact details.  When these details were received, the application for deferral was approved.  Ms Petrak was told that her application had been successful and that she had to monitor the portal to discover the new date for the examination, which would be in the next exam period.[56]
  2. [128]
    Unfortunately no new date for the new examination was set.
  3. [129]
    This meant that the new examination date did not appear on Ms Petrak’s portal.  It therefore appeared to her that the university had not provided her with a deferred examination after all.[57]
  4. [130]
    To the university however, it appeared that Ms Petrak had withdrawn from the course altogether.[58]  Her grades were finalised on that basis.  Then nearly a year later, the record was altered to reflect what the university thought had happened, with her grade being marked down, and recorded as a ‘FAIL’.  This was said to be ‘part of the usual business process to finalise outstanding grades’.[59]
  5. [131]
    The error was not discovered until Ms Petrak made her formal complaint to the university on 21 June 2016.[60]  In that complaint she asked why she had not been given ‘a disability exam for a core law course Civil Procedure despite a request from my disability officer for one to be organised’.[61]  In the email of 5 July 2016 in reply, the university accepted that no such examination with appropriate modification had been provided.[62]
  6. [132]
    Why was this error not discovered earlier?  There is nothing to show that Ms Petrak’s progress was being monitored either by the course convenor, by the university’s internal systems, or at least by the Disability Office as would be expected.  If there was any monitoring, there is nothing demonstrating any follow up with Ms Petrak.
  7. [133]
    This extraordinary failure in communication and organisation seemed to have prompted Ms Petrak’s complaint to ADCQ.  It is the respondents’ evidence and submissions that this error was subsequently corrected, but overall it appears that there was serious detriment to Ms Petrak arising from the delays and disruption caused by this error.
  8. [134]
    On these facts, had this been an indirect discrimination complaint, it would be difficult to defend.  That is because, in such cases, it would not be a defence to say there was an administrative error to blame for the imposition of the condition, requirement or practice.
  9. [135]
    But as a direct discrimination complaint, it is difficult for it to succeed.  There is a detailed description of how the error came about in Ms McGrath’s statement.[63]  It is clear from this description that the error was accidental, with no room for it to have been influenced by the fact of Ms Petrak’s disability or her family responsibilities as alleged.
  10. [136]
    Professor Tranter also denies that anything was done because of Ms Petrak’s impairment or because of her family responsibilities.[64]
  11. [137]
    It must be accepted that what happened was as a result of an unfortunate administrative error combined with the lack of any, or any effective, monitoring of the progress of students with disabilities.  There is nothing to show that what happened was because of the attribute of impairment or family responsibilities.
  12. [138]
    I accept the evidence about this matter adduced by the respondents therefore.  Applying the statutory test, Ms Petrak was treated the same way as another student would have been treated, without the attribute of impairment or family responsibilities but who needed adjustments in the timing and manner of her assessments.
  13. [139]
    The complaint in this allegation must fail.

Issue (iii)B and Issue (iii)D 

  1. [140]
    These two issues are taken together because they are closely related.  In issue (iii)D, it is said that it was directly discriminatory because of impairment or family responsibilities for Professor Tranter to refuse to allow the Civil Procedure exam to be assessed as 100% of the assessment and in issue (iii)B for him to require more information than that required by the disability form.  The disability form is a yellow form showing the adjustments required to the examination procedure to reduce or remove substantial disadvantage faced by a student by reason of a disability. 
  2. [141]
    Ms Petrak had been given a mark of 0/50 for the mid semester assessment for Civil Procedure.  The reason for this is explained in Professor Tranter’s statement.[65]  There is no allegation that being given this mark was an act of discrimination, however Ms Petrak does say she should have been allowed to improve on this mark.
  3. [142]
    She tried to do this by requesting by email on 9 July 2015 that the deferred Civil Procedure examination should count as 100% of the marks for the assessment, instead of 70% in the usual way, with the mid semester assessment counting as 30%.  This request was made to Professor Tranter.[66]  If allowed, it would have circumvented the effect of the 0/50 mark and would have enabled Ms Petrak to start again from scratch by attending the examination later in the month.
  4. [143]
    In response, Professor Tranter asked for evidence and detailed submission to support what would be a ‘significant modification of the assessment for the course’.[67]  It is said therefore, that he was wrong to do this because he was asking for more information than on the disability form.  Professor Tranter sought advice about this from the disability officer who told him that Ms Petrak’s disability did not impact upon her capacity adequately to complete an assessment item like the mid-semester assignment that had a three week completion window.[68]
  5. [144]
    Professor Tranter explains his reasons for not complying with the request made by Ms Petrak in paragraph 43 of his statement and states that his reasoning was nothing to do with her family responsibilities or her attribute of impairment.  Although I am conscious of the fact that Professor Tranter’s evidence about this has not been tested in cross examination, on the face of it Professor’s Tranter’s reasons for this decision would, if correct, be valid ones and non-discriminatory.  It does seem to me that it is inherently unlikely that he was influenced in any way by Ms Petrak’s attribute of impairment or family responsibilities, and there is nothing else which tends to show that could be the case.  In particular, he was anxious to obtain and seemingly to abide by, the advice of the disability officer, which tends to indicate the other way.
  6. [145]
    Applying the statutory test, in both these issues Ms Petrak was treated the same way as another student would have been treated, without the attribute of impairment or family responsibilities but who had applied on insufficient grounds for a forthcoming examination to count for 100% of the marks.
  7. [146]
    In the circumstances, these allegations fail.

Issue (iii)C

  1. [147]
    This is an allegation that there was no response given to a lengthy letter sent to Professor Tranter by the Applicant’s disability officer.  The ‘letter’ is in fact an email, dated 14 July 2015.[69]  Ms Petrak’s evidence about this is in her complaint to ADCQ.[70]  She says that the disability officer emailed the convenor of the Civil Procedure course Professor Tranter, asking for a ‘disability exam request’, but this request was refused.  A ‘disability exam’ is what the university calls an ‘Alternative Examination Arrangement’ or AEA and refers to reasonable adjustments to remove or reduce substantial disadvantage by reason of a disability.
  2. [148]
    The email was addressed not only to Professor Tranter but also to others.  But the allegation is limited to his failure to respond to it.
  3. [149]
    The email explained that Ms Petrak had been registered with the Disability Office since 2011, and that in the law examinations to take place in the following week, that is 22 to 25 July, she should only sit one examination per day and only in the afternoon, and that she needed an additional 15 minutes of writing time per hour, an additional 10 minute rest break per hour.  She should also be permitted to bring in heat packs, highlighter pens and colour overlay and be able to sit with other Alternative Examination Arrangement students.
  4. [150]
    Of the allegation that there was no response to this from Professor Tranter, this is incorrect.  He replied to the email about 45 minutes later asking the disability officer about Ms Petrak’s request to have her mid-semester assessment mark disregarded and marking her deferred examination as 100% of the marks for the course, something Professor Tranter said he was extremely reluctant to do.  Although the disability officer did not reply to that email they spoke on the telephone.[71]
  5. [151]
    Ms Petrak does not say that the university failed to make the adjustments to the examinations in 22 to 25 July 2015 recommended by the disability officer.  Instead her complaint is closely connected to that which I have dealt with in issue (iii)A because in fact she did not sit any of those examinations so the issue about being given more time became irrelevant.[72]
  6. [152]
    The reason why Ms Petrak did not sit any of the examinations is because of the unfortunate error made by the university, as explained when considering issue (iii)A, and which also inadvertently seriously affected her mark. 
  7. [153]
    For the issue which I am considering here, it remains to be said that Professor Tranter did respond to the email referred to in issue (iii)C so its factual basis is incorrect.  In so far as the allegation is not being given reasonable adjustments for the examination, I have considered that when dealing with issue (iii)A. 
  8. [154]
    This part of the complaint fails.

Issue (v)

  1. [155]
    This issue is victimisation on the basis that Ms Petrak was not granted ‘Recognised Prior Learning’ in the Arts Faculty of the First Respondent.
  2. [156]
    Victimisation occurs when a person is detrimentally treated because of a protected act.  Of relevance here, one type of protected act is that the person alleged in good faith that a person committed an act that would amount to a contravention of the Anti-Discrimination Act 1991 (Qld).[73]
  3. [157]
    It is said that the protected act was Ms Petrak’s complaint to the Equity department of the university in July 2015 about Ms Patrick.  In fact this is an email sent on 1 June 2015, which is to be found on page 110 of Ms Petrak’s statement received by the tribunal on 7 March 2019.  In the email she said that she was having difficulty with Ms Patrick.  She explained that she was a registered disability student and complained that Ms Patrick was never satisfied with the medical certificates provided and she had had assessment extensions denied.  The treatment was said to be ‘highly unethical, discriminatory and unlawful’, and that she felt bullied by Ms Patrick.  She said that she will be seeking legal advice and lodging a complaint with Equal Opportunities as soon as she completed her four law exams.
  4. [158]
    There is no doubt that the email of 1 June 2015 was a protected act within section 130 of the Act, because it alleged a contravention of the Act, that is discrimination on the basis of the attribute of impairment.  It is not suggested by the respondents that the email was not sent in good faith.[74]  There were a number of other complaints made by Ms Petrak over the period with which we are concerned, which are not relied on as protected acts, although clearly they could also support such a claim.[75]
  5. [159]
    It is said that it was an act of victimisation contrary to section 130 for the university not to grant Ms Petrak Recognised Prior Learning (RPL).  RPL was credit given for work done in ways other than through the course concerned.  For this to be an act of victimisation, the refusal of RPL would have to be because of the protected act.
  6. [160]
    Ms Petrak had applied for RPL at some point prior to October 2015.  The application was based on past work experience.  In October 2015 Ms Petrak enquired as to progress with this application.  She resubmitted the application on 18 December 2015.  This time it was made based on ‘prior informal and non-formal learning’.
  7. [161]
    There was an unfortunate delay in processing the application.  It was given to Dr Anthony May for assessment.  He decided against giving any credit.  His assessment is an exhibit to Ms McGrath’s affidavit at CM16.  It was done on an assessment form which required the assessor to tick boxes showing whether the knowledge, skills, and application of knowledge and skills of the ‘course learning outcomes’ and ‘program learning outcomes’ were satisfied, and the ‘volume of learning being met’.  If credit was not approved the assessor was obliged to give reasons in a ‘comments’ section.
  8. [162]
    Dr May did not give Ms Petrak any credit for her prior learning on any of the four courses.  His stated reasons on the form for Media and Campaign Strategies was ‘The only evidence supplied relates to promotional work for Logan City Council regarding children’s understating of water conservation and the natural environment.  The course deals with political campaign strategies’.
  9. [163]
    For Media Audiences the reasons were ‘The application is based on experience in advertising and promotions.  The course deals with the institutions of media and cultural industries and their theorization and history with regard to mass audiences.  The experience is not relevant’.
  10. [164]
    For Journalism Internship the reason was ‘The course introduces students to real time newsroom experience and the applicant shows no experience in this field’.
  11. [165]
    For Magazine and Design Layout the reason was ‘The course trains students in newspaper and magazine layout software (InDesign and Photoshop) and magazine and newspaper layout principles.  The student does not have experience of these elements.’
  12. [166]
    On 28 June 2016 Ms Petrak was informed by a Client Administration Officer on what appears to be the online message system that no credit would be given and the reasons were given.[76]
  13. [167]
    On the question whether credit was refused because of Ms Petrak’s complaint to the Equity department, it is clear that this had no part in the decision at all.  The claim of victimisation fails.

Supplementary statement of Cathy McGrath

  1. [168]
    An application has been made on behalf of the respondents to adduce further evidence from Ms McGrath in a statement dated 8 May 2020.  In support it is said that the tribunal needs an update and will be assisted by evidence about how Ms Petrak has been treated by the university since the filing of the witness statements.  Ms Petrak does not consent to the new evidence. 
  2. [169]
    Having read the statement, I do not think it assists me in making my findings on liability in this complaint.  It provides information about events subsequent to those complained of.  The statement would be relevant on the question of remedy, or possibly costs, but not for a liability only determination.
  3. [170]
    Accordingly, I do not give leave for the statement to be filed.

Conclusion

  1. [171]
    My conclusion on liability is that the complaint is dismissed.

Footnotes

[1]In the hearings on 7 May 2019 and on 4 November 2019.

[2]Respondents’ contentions filed on 29 November 2017.

[3]In that respect I have taken into account the provisions of section 95 of the QCAT Act.

[4]Transcript 1-62 line 34, 1-63 line 38.

[5]Submissions of 25 May 2020.

[6]This is also in section 28(3)(b) of the QCAT Act.

[7]In the circumstances discussed in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243, [22] to [41].

[8][8]. Shamoon was considered by McHugh and Kirby JJ in Purvis v New South Wales (2003) 217 CLR 92.

[9]Langstaff J and two others, sitting in the English Employment Appeal Tribunal reported at UKEAT/0609/12, [24] also [28] to [30].  Kalu was appealed to the English Court of Appeal but not on this point.

[10]The majority decision: [213].

[11]See for example, Lifestyle Communities (No3) (Anti-Discrimination) [2009] VCAT 1869, [182], Bonner v Secretary, Department of Industry [2017] NSWCATAD 229, [16] (NSW Civil and Administrative Tribunal), and Ley v Director General of the Department of Education [2019] WASAT 130, [19] (West Australia State Administrative Tribunal),

[12]Dovedeen, [27].

[13]Gummow, Hayne and Heydon JJ, [219], [225]; Callinan J, [247].

[14]Gleeson CJ, [14].

[15]Gummow, Hayne and Heydon JJ, [224].

[16]Gummow, Hayne and Heydon JJ, [236].

[17]McHugh and Kirby JJ at [17].

[18][18].

[19][20].

[20]Examples are section 5 of the Disability Discrimination Act 1992 (Cth), sections 20, 33, 40 and 45 of the Equal Opportunities Act 2010 (Vic), and section 20 of the Equality Act 2010 in the United Kingdom.

[21][31], [32].

[22]In the work area this effect is tempered by section 36 which provides the defence of unjustifiable hardship in all types of discrimination on the basis of impairment.

[23]An effect recognised in Lyons v State of Queensland [2015] QCA 159, [38] where it was said that section 10(5) has precisely the same effect as section 5(2) of the Disability Discrimination Act 1992 (Cth).

[24]And which is applied to the work or work-related area by section 35, the education area by section 44, the goods and services area by section 51, the accommodation area by section 92, and the club membership and affairs area by section 100.

[25]Ms Patrick’s statement of 11 April 2019, [12].

[26]Transcript 1-71 lines 34 to 36.

[27]Email chain in CJP9.  An example of the certificate required is in CJP8.

[28]It had been submitted on 25 March 2015.

[29]Her statement of 11 April 2019, [41](a) and [104](b).

[30]CJP15.

[31]CJP16.

[32]Ms Patrick’s statement of 11 April 2019, [32], [33] and [61].  Although Ms Petrak takes issue with who was to blame for this, she does confirm that it was Trinity’s decision that she could do her internship with them: transcript 1-50 line 7.

[33]Ms Patrick’s statement of 11 April 2019, [50] and [63].  This is shown from a study of the email chains.

[34]Pages 11 and 13 of the original complaint to ADCQ.

[35]The first was Ms Patrick’s decision, the second was through the Academic Adviser to whom Ms Patrick delegated the decision: Ms Patrick’s statement of 11 April 2019, [82] and [91](d).

[36]A point which seems to have been made by Ms Petrak in cross-examination: transcript 1-80 to 1-81.

[37]Respondents’ submissions, [114] to [122], based on transcript 1-71 lines 34 to 36.

[38]Ms Patrick’s statement of 11 April 2019, [120].

[39]The form is at CJP1.  Ms Petrak told me that this question on the enrolment form was answered by her son on her behalf on 25 September 2014, which was a few days before her accident.

[40]CJP5.

[41]CJP30.

[42]Transcript 1-81 line 43.

[43]Page 11 of the complaint to ADCQ, and pages 180 and 181 of Ms Petrak’s statement received on 7 March 2019.

[44]Statement of 11 April 2019, [5].

[45]Statement of 11 April 2019, [87].

[46]As she says in her statement of 11 April 2019, [92].

[47]Transcript 1-78 line 34 to 1-79 line 9.

[48]Pages 10 and 11 of the original complaint to ADCQ.

[49]Statement of 11 April 2019, [76].

[50]CJP26.

[51]Email of 6 July 2016, and complaint form.

[52]Section 178 of the Anti-Discrimination Act 1991 (Qld).

[53]This email, and any response to it, is considered in more detail under issue (iii)C below.

[54]Statement of Ms McGrath, [21].

[55]CM5 and CM6.

[56]CM7.

[57]This appears for example from her contentions of 10 November 2017, page 3.

[58]Professor Tranter’s statement of 12 April 2019, [52].

[59]Professor Tranter’s statement of 12 April 2019, [61].

[60]Email of that date in attachment 1 to the ADCQ complaint.

[61]The email also asked other things and made complaints, which are not relevant to this issue.

[62]Email from Student Complaints – attachment 2 to the ADCQ complaint.

[63][27].

[64]Professor Tranter’s statement of 12 April 2019, [8] and [61].

[65]At [28] to [32].

[66]KT12.

[67]Email of 10 July 2015 in KT12.

[68]His statement of 12 April 2019, [45].

[69]KT13.

[70]Page 17.

[71]See issue (iii)D about what was said.

[72]Professor Tranter’s statement at [50] to [52] and Ms McGrath’s statement at [21].

[73]Section 130 of the Act.

[74]Which otherwise would take it outside section 130.

[75]Prior to the alleged detriment, Ms Petrak made a number of complaints to the university that she had been discriminated against.  These complaints were made on 5 February 2015, 24 February 2015, 21 March 2015, and 24 March 2015.

[76]CM17.

Close

Editorial Notes

  • Published Case Name:

    Petrak v Griffith University & Ors

  • Shortened Case Name:

    Petrak v Griffith University & Ors

  • MNC:

    [2020] QCAT 351

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    11 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bonner v Secretary, Department of Industry [2017] NSWCATAD 229
1 citation
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Cite 1 - [2017] NSWCATAD 229
Dovedeen Pty Ltd v GK [2013] QCA 116
3 citations
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Cite 1 - [2013] QCA 116
Cite 2 - [2013] QCA 116
Cite 3 - [2013] QCA 116
Ley v Director General of the Department of Education [2019] WASAT 130
1 citation
Jump To
Cite 1 - [2019] WASAT 130
Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869
1 citation
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Cite 1 - [2009] VCAT 1869
Lyons v State of Queensland[2016] 2 Qd R 41; [2015] QCA 159
2 citations
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Cite 1 - [2015] QCA 159
Cite 2 - [2015] QCA 159
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
2 citations
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Cite 1 - [2013] QCAT 243
Cite 2 - [2013] QCAT 243
Petrak v Griffith University [2018] QCAT 356
2 citations
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Cite 1 - [2018] QCAT 356
Cite 2 - [2018] QCAT 356
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
8 citations
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Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Cite 3 - (2003) 217 CLR 92
Cite 4 - (2003) 217 CLR 92
Cite 5 - (2003) 217 CLR 92
Cite 6 - (2003) 217 CLR 92
Cite 7 - (2003) 217 CLR 92
Cite 8 - (2003) 217 CLR 92
Shamoon v Chief Constable of the RUC [2003] UKHL 11
2 citations
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Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368
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Walters v Public Transport Corporation (1991) 173 CLR 349
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Woodforth v State of Queensland[2018] 1 Qd R 289; [2017] QCA 100
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Cite 2 - [2017] QCA 100
Yu Ping Xi v WorkCover Queensland [2016] QCATA 134
2 citations
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Cite 1 - [2016] QCATA 134
Cite 2 - [2016] QCATA 134

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1

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