JQ v Double Bay Out of School Hours Inc (No 2) CaseBase | [2010] NSWADT 257 | BC201055268 JQ v DOUBLE BAY OUT OF SCHOOL HOURS INC (NO. 2) BC201055268 Unreported Judgments NSW · 143 Paragraphs New South Wales Administrative Decisions Tribunal Needham J Sc — Deputy Presidentgill M — Non-Judicial Memberlowe A — Non-Judicial Membero'Sullivan M — Non-Judicial Member 081078, 091060 16 March 2009, 29 May 2009, 4 February, 5 February, 19 March, 28 October 2010 Jq v Double Bay Out of School Hours Inc (No 2) [2010] NSWADT 257 Headnotes DISCRIMINATION IN PROVISION OF GOODS AND SERVICES — marital status — whether shared care parenting responsibilities a characteristic of marital status of “divorced” — indirect discrimination. VICTIMISATION — marital status — damages — failure to mitigate damages — reduction of amount payable on basis of applicant’s failure to act. (NSW) Administrative Decisions Tribunal Act 1997 (REVIEW) Anti-Discrimination Act 1977 (CTH) Disability Discrimination Act 1992 (CTH) Family Law Act 1975 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165; Bear v Norwood Private Nursing Home (1984) EOC 92-019; Bogie v The University of Western Sydney [1990] EOC 92-313; Bonella & ors v Wollongong City Council [2001] NSWADT 194; Carter v Brown [2010] NSWADT 109; Catholic Education Office v Clarke (2004) 138 FCR 121; Clarke v Catholic Education Office (2003) 202 ALR 340; Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22; Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 63; Correy v St Joseph's Hospital [2007] NSWADT 104; Crewdson v President, Anti- Discrimination Board of New South Wales [2000] NSWADT 60; Goode & Goode [2006] FamCA 1346; Hurst v Queensland [2006] 151 FCR 562; JQ v Double Bay Out Of School Hours Inc [2008] NSWADT 337; Lal v President, Anti-Discrimination Board [2000] NSWADT 68; Queensland Health v Forest (2008) 168 FCR 532; Sheikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44; Walker v State of New South Wales (2003) NSWADT 13; Waters v Public Transport Commission (1991) 173 CLR 349; Woods v Wollongong City Council & Ors (1986) EOC 92-174; PUBLICATION RESTRICTION: ; The applicant`s name is suppressed (see JQ v Double Bay Out Of School Hours Inc [2008] NSWADT 337) Needham J Sc — Deputy Presidentgill M — Non-Judicial Memberlowe A — Non-Judicial Membero'Sullivan M — Non-Judicial Member. [1] Mr JQ made a complaint to the Anti-Discrimination Board on 14 January 2008 arising out of the policy applied to permanent and casual bookings at the Out of School Hours care centre (“the Centre”) operated by the respondent at his children’s school. That complaint was made pursuant to ss 39 and 43 of the Anti-Discrimination Act 1977 (“the Act”) and was referred to this Tribunal on 23 July 2008. That complaint was referred to in the Page 2 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 evidence, and will be referred to in these Reasons for Decision, as the “Discrimination Complaint”. The President’s Report in the Discrimination Complaint was Ex AX1 in the proceedings. The applicant’s name has been suppressed due to his having young children who may be able to be identified by the use of his name (see JQ v Double Bay Out Of School Hours Inc [2008] NSWADT 337). [2] The Discrimination Complaint was characterised as a complaint of discrimination in the provision of goods and services by the respondent, on the basis of Mr JQ’s marital status. His marital status is “divorced” and the applicant alleged that the provision of services to his two children was made on a basis which, as a parent with “shared care” responsibilities pursuant to an order of the Family court, indirectly discriminated against him in contrast to parents who were not subject to such orders. [3] Mr JQ made a second complaint on 19 December 2008. That complaint was made pursuant to s 50 of the Act and was referred to this Tribunal on a date which does not appear from the President’s Report. However, the original of the President’s Report was filed on 17 June 2009. It is Ex AX15. That complaint was referred to in the evidence, and will be referred to in these Reasons for Decision, as the “Victimisation Complaint”. The Victimisation Complaint alleges that Mr JQ was victimised after making the Discrimination Complaint by failing to respond to his application, by the institution of new enrolment practices specifically for him, and the failure to enrol his children in after-school hours care after the making of the complaint. Applicable Legislation [4] The Act contains the following relevant sections. [5] Section 4 defines “marital or domestic status” as: the status or condition of being: (a) single, or (b) married, or (c) married but living separately and apart from one’s spouse, or (d) divorced, or (e) widowed, or (f) in a de facto relationship. [6] Section 39 deals with discrimination on the ground of marital or domestic status, and provides: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital or domestic status if, on the ground of the aggrieved person’s marital or domestic status or the marital or domestic status of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital or domestic status or who does not have such a relative or associate of that marital or domestic status, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital or domestic status, or who do not have such a relative or associate of that marital or domestic status, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A)For the purposes of subs (1) (a), something is done on the ground of a person’s marital or domestic status if it is done on the ground of the person’s marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status. (2) For the purposes of subs (1), the circumstances in which a person treats or would treat another person of a different marital or domestic status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex. (3) (Repealed). [7] Section 47 makes it unlawful to discriminate on the ground of marital status in the area of goods and services. That section provides: Page 3 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 47 Provision of goods and services It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital or domestic status: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. [8] Section 50 of the Act deals with victimisation as follows: (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. [9] Section 108 of the Act, at the relevant time, provided: (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under s 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under s 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further action in the matter. (3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate. Page 4 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 Factual background [10] The complaints arise against the following factual background. [11] The applicant, Mr JQ, is the father of two children who attend a public primary school in Sydney. The respondent operates the Out of School Hours care at the school, providing both before- and after-school care. [12] On 30 August 2004, Mr JQ and his then wife entered into “Terms of Settlement In Relation To Parenting and Property”. Relevantly, those orders dictate that Mr JQ’s children reside with him every second week. The parents retained “joint parental responsibility for making all decisions concerning the long term care, welfare and development of the children of the marriage”. The children were to live with one parent during one week, with a changeover after school on Monday afternoon at 3pm, and with the “residence cycle” suspended during the Christmas holidays. There was also provision for contact with the parent with whom they were not residing that week after school on Thursdays. [13] The children commenced at the school in 2004, at a time when apparently Mr JQ and his wife were separated (using the date of the Parenting Agreement as a guide). Mr JQ said that he enquired with the respondent over a number of years as to whether he could make a permanent booking for his children for every second week — ie, the weeks they resided with him. The answer was always that permanent bookings required a commitment to each week, that a permanent booking could not be made for every second week, and the only way to have the children attend out of school hours care every second week (without paying for the alternate weeks when they would not be attending) was to use the casual booking system. It was not contested that this was indeed the policy of the respondent until the 2009 school year, when the policy changed. [14] The casual booking system had three practical differences from the permanent system. Firstly, there were limited spaces (usually about five each day, compared to 75 permanent spaces). Secondly, the casual spots could not be booked more than a week in advance and accordingly, if Mr JQ used casual places, he would need to book them for each week every fortnight. Thirdly, the casual places were more expensive, at an extra $1.00 per day per child. [15] Mr JQ said he made enquiries with the respondent at the end of 2007, for the 2008 school year. He went to the Centre on 10 December 2007 and spoke to Ms Kylie Lawson, the Centre Co-Ordinator. He collected an enrolment form. [16] On 10 December 2007, Ms Lawson confirmed that the management committee had set a policy as to permanent and casual bookings. That policy meant that Mr JQ could either book a permanent spot for his children, and pay for those weeks when they did not attend, or take his chances with the casual booking system and pay the extra dollar per child per session. [17] On 21 December 2007, Mr JQ attended at the Centre and handed an envelope to a member of the Centre staff, Rochelle Charlton, as Ms Lawson was not there. The envelope contained an enrolment form, which sought enrolment for his children on Mondays, Tuesdays, Wednesdays and Fridays, and attached the Parenting Order. There was a covering letter (dated 21 December 2007) addressed to Ms Lawson. The letter read, omitting addresses and salutations: Attached is my application form for [the children] for next year. As you can see from the attached Family court Order, the children live with me on alternative weeks. In effect this defines my family unit as being every second week — and so I only require after school care on alternate weeks. There is nothing I can do about this. This is my legally defined family structure. I believe it is discriminatory against my family structure/marital status for DBOOSH not to accept an application for regular alternate weekdays. Accordingly, I am putting in a complaint to the Anti-Discrimination Board. Please accept this is nothing to do with you personally. I am aware you don’t make policies at DBOOSH. This letter is just to let you know of my actions. I regret that I have to take a legalistic approach on this issue. [18] Ms Lawson gave evidence on two occasions before the Tribunal. She also gave a sworn statement dated 3 October 2008. At the time she swore her statement she remained employed by the respondent, but on her second appearance before the Tribunal she had left its employ. Page 5 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [19] Ms Lawson noted that the Q children attended the Centre on dates arranged by their mother. She recalled meeting with Mr JQ in December 2007 and she outlined the Centre policies, as set out above. She says she also told him that “these policies were endorsed by the parent committee”. She offered to give him a complaint form. [20] On 21 December 2007 — which was the last day of term for 2007 — Ms Lawson received a call from Ms Charlton, her assistant co-ordinator. Ms Charlton said that she received Mr JQ’s letter, and opened it thinking it was an enrolment form. She summarised the letter to Ms Lawson. Ms Lawson said that she would ring Ms Robyn Monro-Miller, who was the treasurer of the respondent, and let her know. She did so, in circumstances which were the subject of a great deal of evidence. We will deal with that evidence in detail later. [21] When Ms Lawson returned to the Centre in 2008, Mr JQ’s letter to her, attaching the enrolment form and the parenting order, was in her pigeon hole. She gave the letter to Ms Monro-Miller or, possibly, to Ms Julia Fraser, the President of the management committee. The letter was discussed at various Management Committee meetings of the Centre, but it was not, apparently, treated as a complaint to the Committee, because (a) the complaint had already been lodged with the ADB, and (b) the terms of the letter were regarded as being more in the way of a notification to Ms Lawson of the imminence of the ADB complaint. There was evidence that the Committee regarded the letter as a “courtesy letter” notifying it that a complaint would be made elsewhere. [22] The children were not allocated places at the Centre on the dates sought by Mr J(Q) The manner in which they failed to be allocated places was the foundation of the victimisation complaint. It is fair to say that the evidence about what happened, and when, in relation to the failure to allocate a place was the subject of some controversy during the hearing. We will deal with that evidence in detail later. However, what emerged from the evidence was that normally when an enrolment form was received, the children the subject of the enrolment form were either enrolled in DBOOSH, by being allocated places and their parents being notified of the allocated dates, or they were placed on a waiting list, and their parents notified. The manner of notification was not consistent, but from all the evidence, the reasonable expectation of a parent who lodged an enrolment form would be that he or she would be told that their child was enrolled, or wait-listed, on the day of lodgment of the enrolment form, or very shortly thereafter. Mr JQ was not so informed. He says that this treatment amounted to victimisation. [23] The respondent justified its policy (in 2007 and 2008) of not allowing alternate-week bookings on the basis of financial necessity — that the booking policy allowed consistency in ensuring continuity of weekly staffing requirements, and other costs including food preparation costs. Points of Claim and Defences [24] The parties each filed Points of Claim and Defences. Removing the matters that are more correctly dealt with by way of submission, Mr JQ set out his arguments as follows. [25] The Points of Claim in the Discrimination Complaint (Ex AX2, with additions/amendments in Ex AX3) identified that the ground for discrimination was on the basis of marital status, and that Mr JQ’s marital status was that he was “divorced” within the meaning of s 4 of the Act. The basis of the discrimination was that, as a divorced person, he was treated less favourably than someone who was not divorced. He said that the respondent’s conduct, in failing to offer a permanent place for parents in his situation of having shared care of children every other week, was less favourable treatment (s 39(1)(b)). He said that he was obliged, by his divorced status, to comply with a requirement (ie, weekly booking), with which parents who were not divorced were not required to comply. The area of discrimination was the provision of goods and services (s 47 of the Act). The discrimination alleged is indirect discrimination. [26] The Points of Claim in the Victimisation Complaint (Ex AX27, with specified documents incorporated by reference) identified that the conduct complained of was the failure by the respondent to take any action on his enrolment form, to put his children on the waiting list, or to contact him in relation to his booking. The various failures to act on his enrolment form submitted for his children was alleged to be victimisation within the meaning of s 50 of the Act. [27] Mr JQ sought damages of $40,000 in relation to each of the Complaints. [28] The Points of Defence in the Discrimination Complaint (Ex RX1) raised a number of issues. They include: a. that the enrolment form was delivered on the last day of the school year, and the ADB complaint commenced before the Centre re-opened the following January, thus depriving the respondent of any opportunity to consider the request for alternate week bookings; b. the respondent did not have the opportunity to actually consider the request for alternate week bookings; c. the bookings policy is unrelated to Mr JQ’s marital status; d. Mr JQ has not established that “a substantially higher portion of people who are not divorced comply or are able to comply with a requirement to pay for a place at the Centre every week”; Page 6 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 e. the bookings policy is not unlawful given the reasonableness of the requirement in the context of a user- pays, community-based not-for-profit Centre. f. In any event, the Centre had resolved to offer the alternate week booking policy for permanent bookings as and from 2009. [29] The Points of Defence in the Victimisation Complaint (Ex RX2) took issue with the manner in which the Points of Claim was framed. It relied on the Points of Defence in the Discrimination Complaint and noted that Mr JQ had not taken up an offer of alternate week bookings in 2009. The respondent said that the victimisation complaint was misconceived, and lacking in substance. A further Points of Defence in the Victimisation Complaint (Ex RX7) alleged that the Management Committee did not take into account the proposed complaint in relation to any decision made concerning the enrolment of the Q children. It also alleged that “it accepted the Applicant’s application to enrol his children in after-school care for 2008”, that “it did not prevent the Applicant from making a booking for his children to be placed in after-school care during 2008”, and “the Applicant did not make any bookings for his children during 2008”. [30] Mr JQ filed a Reply, ostensibly to the Victimisation Complaint (Ex AX33) but which also dealt with the Discrimination Complaint. In the Reply, he said that “there were three separate streams in these 2 discrimination complaints. They were related but different”. The three “streams” are: a. the request for permanent places, made on 21 December 2007 by way of the booking form; b. the request for an alternate-week permanent booking (made orally on 10 December 2007 and later in writing, by letter on 21 December 2007 delivered together with the booking form); and c. the complaint to the Anti-Discrimination Board — both as a statement of intent in the letter of 21 December 2007, but later by the actual complaint, made on 14 January 2008. [31] A number of other documents were incorporated by reference in the submission. The reply covers ground which is covered in submissions and does not specifically deal with isolating the complaint, although it does so in para 14, in noting that Mr JQ had never had an acknowledgement from the respondent that his enrolment form was a valid one which should have, he says, resulted in a place being allocated. Disputed Evidence [32] There are two main areas in which the evidence of the parties diverged. They were: a. what is the usual procedure for enrolling a child in the Centre? and b. what happened to Mr JQ’s booking/enrolment form? The two issues interconnect. [33] Ms Lawson, the Centre Co-Ordinator, gave evidence in her sworn statement of 3 October 2008 (Ex RX3) that she spoke to Mr JQ in about December 2007. He told her that he wanted to “book my children in permanently every second week”. She told him that “it is not our policy to have permanent bookings every second week. But we do have a casual booking system which allows the kids to be booked in every second week for an extra cost of $1 per session”. She also referred him to the complaint procedure. [34] On 21 December 2007, Ms Lawson received a telephone call from Ms Charlton. She said Ms Charlton told her: [Mr JQ] dropped off an envelope and I opened it thinking it was just an enrolment form, but he has also put in a letter to you that says he is going to complain that we have discriminated against him by not letting him book in for a place every second week on a permanent basis. [35] Ms Lawson said that she then rang Ms Monro-Miller, the Treasurer. In Ms Lawson’s statement, Ms Lawson says that “because it was the last day of school we would wait until term 1 2008 to respond to [Mr JQ’s] complaint.” She says that the Centre then shut down over the holiday period from 21 December 2007 to the end of January 2008. When she returned to work at the end of January 2008 she found the letter in her pigeon hole. She gave it to Ms Monro-Miller or the President, Julia Fraser. [36] Ms Monro-Miller swore two statements, 4 March 2009 (Ex RX8) and 4 November 2009 (Ex RX4). In her second statement, she says that “[Mr JQ] was not denied access to the service, nor was he on a waiting list”. This statement was made in the context of the Commonwealth’s Priority of Access Guidelines, but has other relevance, as will be seen. Page 7 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [37] In Ex RX4, Ms Monro-Miller did not deal with how the enrolment form, in contrast to the complaint, was dealt with. In a sense this is understandable since the victimisation complaint had not been filed at the time she swore the statement. However, she did say that “I understood that [Mr JQ’s letter of 21 December 2008] did not indicate that he “would be unable to access care, only that he wanted care in alternate weeks and that he was lodging a claim with the Anti-Discrimination Board in order to prove this was discriminatory”. [38] Ms Monro-Miller swore a further statement dated 4 November 2009. She said in that statement: 4. [Mr JQ’s] enrolment and application forms were processed on 21 December 2007 when it was submitted, as is the standard practice of (the respondent). 5. No further written or verbal correspondence was entered into with [Mr JQ] with respect to his application for child care, as it had been accepted. Parents will then call DBOOSH and make bookings for their children. This is the standard practice adopted for all parents. The only reason a parent would be contacted by a Co-ordinator is to place children on a waiting list or to confirm a booking. 6. No member of the Parent Management Committee ever calls parents in relation to bookings. Bookings and enrolments are handed solely by the Co-ordinator. The Management Committee does not get involved in these matters. 7. On the basis of his accepted enrolment [Mr JQ] was fully entitled to book his children into DBOOSH at any time throughout the duration of 2008. 8. [Mr JQ’s] enrolment and application forms were not sent to the Committee, as they were accepted and processed on 21 December 2007. [39] By the time the Centre re-opened in 2008 and the Management Committee met to deal with the JQ matter, the complaint had been made to the Board as outlined above. The first meeting of the Management Committee was held on 4 February 2008. [40] Mr Finlay, a parent and user of the Centre’s facilities and member of the Management Committee, said in his affirmed statement dated 14 January 2010 (Ex RX10) that: DBOOSH treats all incoming enrolment forms as a booking request. The particular booking requested by each parent can be discerned from p 1 of the enrolment form. [41] That was the written evidence. Each of the main players who gave written evidence also gave oral evidence. [42] Ms Lawson gave evidence on the first day of hearing, which was 16 March 2009 (and before the Victimisation Complaint had been received by the Tribunal from the Anti-Discrimination Board). She said in cross-examination by the applicant, in answer to the question, “Okay, first day of school, 30 January, did my children have places?” that “On — in 2008 they weren’t enrolled”. In re-examination, she explained the enrolment policy as she understood it, which was that places were allocated on the basis of enrolment forms, the first enrolment forms which were received having priority, and if there were more applications than places, she would take the matter to the “parent committee” (which the evidence revealed was the Management Committee). [43] Ms Lawson was asked about her evidence that the Q children were “not enrolled”. The following passage appears in her re-examination on 16 March 2009 by counsel for the respondent: (Q) And you said that [the Q children] weren’t enrolled as at 2008, why is that? A. Because the enrolment form was just handed in was — I didn’t see it and also there was no vacancies at that time. (Q) By saying “I didn’t see it” what do you mean? A. Well, the enrolment form was given to my assistant co-ordinator on the last day of term and then when I came back from holidays that’s when I saw it. (Q) So do I understand that if it had been — it was because you’d already determined enrolments for the new year had you? A. Yes. (Q) Prior to the last day of term? A. Yes. Page 8 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [44] Ms Lawson was asked some questions as to the enrolment policy by members of the Tribunal on 16 March 2009. She said that if an enrolment form was given to her, and there were vacancies, that she made the decision on whether that child was enrolled. An enrolment was actioned by notifying the parents that their child was enrolled. If a parent handed in the enrolment form, Ms Lawson would let them know verbally “which days they have got and if they’ve got all of them”. If there were no vacancies, the children would be put on a waiting list, and the parents would be notified (again, verbally) that they would be on that list. [45] The Deputy President asked Ms Lawson: (Q) Now, was there anything else that JQ needed to do other than fill out the enrolment form that he gave you, assuming that he wanted a booking that your policies accommodated? So, assuming that he wanted a permanent four day a week place within the (Centre) definition of permanent, was there anything you [sic “he”] needed to do apart from lodge that enrolment form with you? A. No. (Q) Did you inform him there were no vacancies? A. No. (Q) Did you inform him of anything relating to the status of his application? A. No. (Q) So, his application was sent upstairs, if you like, to the management committee? A. Yes. (Q) If he had sought a permanent booking normally would you have processed that [booking] on the day that you returned to work, if it had arrived in your pigeon hole on the last day of school after you’d left? A. Yes. (Q) And if there were vacancies, what would you have done? A. If I saw his application? (Q) Yes. A. I — with — with the letter as well or? (Q) Well, the letter is really a covering letter. A. Yes. (Q) And then there’s the application, so if you saw that application? A. And there were vacancies? (Q) Yes. A. I would ring the parent and let them know there was vacancies. (Q) So, it’s not the case that you just process it and then expect the children to turn up, there’s another step involved? A. Yes. [46] Further questions were asked by Non-Judicial Member Lowe as to the process if an enrolment form was received, as was the case here, by the Assistant Co-ordinator. Ms Lawson said that normally, the Assistant Co- ordinator would undertake the same process of checking availability and notifying the parents or carers of the spots which the child or children had been allocated. Ms Lawson stressed that the parents would usually be told of the success or failure of their application for enrolment, and of the days of their booking, “then and there”. However, in Mr JQ’s case, the Assistant Co-ordinator didn’t open the envelope containing the booking form until after Mr JQ had left, and rang Ms Lawson later in the afternoon. Ms Lawson then rang Ms Monro-Miller, and the letter, and enrolment form, were placed in Ms Lawson’s pigeon hole. Ms Lawson said at that point, when asked what it was that Ms Monro-Miller had said: A. Robyn said that it was the last day of term and we — we all go on holidays until the start of January — (Q) Yeah. Page 9 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 A. So they would need to address it at our next parent meeting. (Q) So she didn’t say to you to let JQ know what was happening to his letter? A. No. (Q) Just they’d deal with it on return. A. Yes. [47] When Ms Lawson gave her second session of oral evidence on 19 March 2010, she gave an outline of the enrolment/booking process as follows to counsel for the respondent (at p 6 of the Transcript for that day): (Q) When a parent wished to actually make a booking for a permanent place with DBOOSH, could you explain to the Tribunal what the standard process, in your experience, was? A. They’d — they’d come in asking to make an inquiry of how they book their child in. I would give them an enrolment package. They had the enrolment form on it. I would go through the procedures with them and the enrolment form and what was inside the package and then they — sometimes they would fill it out there right on the spot. Other times they’d take it home and then come in for the next day. When they came in we’d go through the enrolment form just to make sure they had filled out all the correct areas and then I’d tell them there and then if there was vacancies or they would be placed on a waiting list. [48] Ms Lawson was asked, on 19 March 2010, when she first saw the enrolment form. She said it was the first day back at school in Term 1, 2008. She said she saw that Mr JQ had circled days on the form, requesting bookings for particular days, and that she did not respond because she had passed it on to the Parent Committee (at p 9). [49] Mr JQ gave evidence that he waited for a response to his enrolment application and letter on 21 December 2007, but did not receive a response. He did not hear from the Centre in January. As it turned out his children were late returning to Australia from their summer holiday because of adverse weather conditions, and so he was not in need of care for the first or second week of term. He had lodged his complaint with the ADB on 14 January 2008, before term started, and when he received a reply from the respondent in relation to that complaint he said that the reply “basically said I wasn’t refused access. I was offered casual places. Then, after that period had elapsed it became sort of obvious they weren’t going to respond. … I had spoken to [the co-ordinator] quite a lot and my understanding was that they couldn’t do anything.” (Transcript 4 February 2010 at p 30). [50] Ms Monro-Miller gave oral evidence on 4 February 2010. In it, she gave an account of the phone call she received from Ms Lawson. Ms Monro-Miller said that she did not, as treasurer, handle application forms, and that she understood that Ms Lawson’s call was about the covering letter, not necessarily the application form. Ms Monro-Miller said she told Ms Lawson: There is nothing you can do about it. If the gentleman has taken this to the Anti-Discrimination Board, it is within his rights to do so. What you now have to do is just accept that. He’s written to you, as a courtesy, to tell you this. The management will obviously have to deal with this when we receive the information from the Anti-Discrimination Board. At this point you need to just proceed as you would with any other person who has been enrolled. [51] Ms Monro-Miller said that she went on to say: you need to be very careful that you do this because you do not want him to bring another claim of victimisation if you mistreat him. So you must treat it exactly the same. It is 6.15 at night. The Centre is about to close and you’ve got annual leave. There is nothing we can do about this claim at this particular point and we will — if you could take it to management on our return, so that we can perhaps look at our policies around it. [52] The terms of the conversation as set out by Ms Monro-Miller were not reflected in either of her statements, nor were they reflected in Ms Lawson’s evidence. Ms Lawson, when asked about this conversation in evidence on 19 March 2010, denies that anything was said to her about “treating him the same as everybody else”. Ms Lawson said that Ms Monro-Miller did not mention victimisation. It has to be said that the conversation as recounted by Ms Monro-Miller has an air of unreality about it, particularly in the context of a victimisation claim having been made and referred to the Tribunal case shortly before Ms Monro-Miller gave evidence, and in the light of the denial by Ms Lawson. The Tribunal prefers the evidence of Ms Lawson on this point. [53] Another issue in dispute was whether Ms Monro-Miller ever received the application form. She denied ever receiving it. Her position was that she had told Ms Lawson to deal with it, and that it was not attached to the letter Page 10 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 when she received the letter. At p 69 of the transcript of 4 February 2010, she was asked and answered, in the context of the question whether she received the enrolment form or the letter: (Q) The letter or the application form or anything? A. The letter or the application form. I certainly would not have taken receipt of any application form ever because the management committee is not permitted really to deal with enrolment forms. [Ms Lawson] might have shown me the letter at that particular time, but I certainly never received a copy of it. [54] A further issue formed the crux of Mr JQ’s cross-examination of Ms Monro-Miller. It was the statement, set out in para 38 above, as to the statement in para 23 of her affidavit of 6 March 2009 (Ex RX4) in which Ms Monro-Miller said that “the act of completing an enrolment form signifies acceptance”. During cross-examination, at p 72 of the transcript of 4 February 2009, she said, in answer to a question as to what “acceptance” meant: … you can fill in the enrolment form. If they haven’t got places, generally you’re contacted, but generally when you had in the enrolment form there’s a discussion about whether there’s places. There would be a discussion happen with the co- ordinator at the time of enrolment. [55] Later in that cross-examination (at p 74), Ms Monro-Miller said that the enrolment form was “a booking request. It’s an enrolment form”. She said that it “requested those places”. She said: (Q) It’s requesting those places. So it’s not accepting those places that have already been offered. It’s requesting those places? A. Yes, but in doing so you usually talk to the co-ordinator. It’s just not an ad hoc — you know, generally you just put it in and the co-ordinator gives you some feedback or you talk about it and you find out what those places are. [56] And later (at p 76): (Q) So the reasons a parent would be contacted by a co-ordinator to confirm a booking request — so if you put on a request, for some reason the co-ordinator may be busy with children when you go in, so they will ring you back and tell you you’ve got your places, they put you on a waiting list or there’s a problem with the form? A. Yes, that would be my understanding. (Q) There’s no option not to do anything? A. No, they should do something or, in some cases, I’m sure, as I had to do and I know of other parents, we’ve had to ring and say, “What’s happening with our form?” when they don’t get back to you”. [57] Ms Monro-Miller confirmed that there were places available in Term 1 2008, although “there were some vacancies, but … it was filling and on some days we were full at that point, but these people generally get accommodated through casual places, the ones that are the overflow, as people reshuffle and children’s extra- curricular activities take over”. She said she was not aware of any waiting lists in 2008. [58] Ms Lawson, in her evidence on 19 March 2010, was shown some documents obtained by Mr JQ on summons from the Centre, and gave evidence that while there were some days during the early weeks of Term 1, 2008 when the Centre was fully booked, there were vacancies on other days. She said that the reason the children were not booked into the Centre was “because I handed the — the complaint, everything that was in the envelope, over to the parent committee” (transcript 19 March 2010 p 23). She was asked, and answered, the following questions (at p 23): (Q) Were there any other enrolment forms handed to the Committee in 2008? A. No. (Q) No, so there — so this was the only one. A. Yes. (Q) Okay and so — and the reason why that is because there was a complaint letter saying I was going to make a complaint to the Anti-Discrimination Board. A. Yes. Page 11 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [59] Ms Monro-Miller gave evidence that, in her experience, once children were enrolled in the Centre, and their days confirmed, their names were put on a list of children who were expected to arrive at the Centre after school (whether escorted there by School staff, in the case of the younger children, or arriving after class finished for the day, for the older ones). While the list for Term 1 2008 was not in evidence, it was not in dispute that the Q children’s names did not appear on that list. Ms Monro-Miller did give evidence of a recollection she had that the Q children were expected, but did not attend, but she did not say that that recollection was based on seeing a list (Transcript 5 February 2010 at p 37). Again, this evidence has the appearance of a later reconstruction, in the light of the context of the Complaints and the lack of any other evidence, written or oral, which suggested that the Q children were treated by the respondent as being enrolled and expected to attend the Centre in early 2008. In fact there was some evidence against their being expected, as is detailed below. [60] Ms Lawson, in her evidence of 19 March 2010, agreed that children who were the subject of an enrolment form and who were booked into the Centre had their names put onto a list, which list was available to the Co- ordinator and the other workers at the Centre. Ms Lawson was asked whether she expected the Q children to be on the list, at any time in 2008, and she answered “No” (at p 25). The Tribunal prefers the evidence of Ms Lawson on this point to that of Ms Monro-Miller. [61] Ms Lawson was asked by Non-Judicial Member Lowe (at p 25): (Q) So who did you think was actually going to answer the application that JQ made for his children to be in permanent places every [other] week? A. The parent committee. [62] Mr Finlay, who appeared to give definitive evidence in his written statement that the applicant’s enrolment form was “accepted” when it was received, and that the children were enrolled, said in oral evidence that he was not a member of the management committee at the relevant time and was giving evidence from the point of view of a parent at the Centre. His evidence was therefore restricted to the areas of which he had knowledge, which, it is fair to say, did not coincide with the events under review in this matter. [63] The Tribunal accordingly has disregarded Mr Finlay’s statements as to the effect of the enrolment form as, despite his confidence as to the treatment of the JQ enrolment form, Mr Finlay had little or no direct knowledge of the events to which he deposed. [64] On the question of the disputed areas of evidence, the Tribunal has considered all of the evidence, including the transcript, the documents tendered, the demeanour and objective credibility of the witnesses. [65] As to the question of the process of enrolment at the Centre, the Tribunal finds that the usual — almost universal — process is as follows: a. the parent or carer fills in an enrolment form, which requests the basis of attendance (being permanent, ie, weekly, or casual) and the days of attendance; b. the enrolment form is (usually) handed or (occasionally) left with a member of the Centre staff; c. the Co-ordinator, or the member of staff in charge of the Centre at the time, will check the enrolment records and enter the child in on the requested days if available, or on a waiting list, if there are no vacancies on that day; d. the member of staff who enters the booking into the system will contact the parent or carer to inform them of the outcome of their application; e. if possible, this process is undergone with the parent or carer in attendance, but if circumstances do not permit that, then the staff member will contact the parent or carer with the outcome of the application. [66] As to the question of what happened to Mr JQ’s enrolment form, the Tribunal finds that the following train of events is established: a. Mr JQ handed the enrolment form, and a covering letter foreshadowing an ADB complaint, to Ms Charlton, the assistant co-ordinator of the Centre, on the afternoon of 21 December 2007; b. Ms Charlton rang Ms Lawson, and told her about the foreshadowed complaint, and also told her that the letter contained an enrolment form; c. Ms Lawson told her to put the letter (and presumably the enrolment form) in her pigeon hole; d. Ms Lawson did not direct Ms Charlton to take the usual steps which would be taken to enrol children the subject of an enrolment form, nor did she take those steps, nor did Ms Lawson direct Ms Charlton to contact Mr JQ with days on which his children might attend the Centre; Page 12 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 e. Ms Lawson rang Ms Monro-Miller, and told her about the foreshadowed complaint and the enrolment form; f. Ms Monro-Miller gave Ms Lawson no directions apart from saying that the Parent Committee would address the matter at the next meeting; g. In particular Ms Monro-Miller did not direct Ms Lawson to take any steps to enrol the Q children, nor to contact Mr JQ with days on which his children might attend the Centre; h. Ms Lawson passed on the letter and the enrolment form to Ms Monro-Miller, or Ms Fraser, and the enrolment form was not dealt with at all, although it was attached to the letter which formed the basis of discussion at the meeting of 4 February 2010; i. No action was taken in late 2007 or at any time in 2008, which action would normally be taken, to accept Mr JQ’s booking, either on a permanent basis, whether weekly or alternate-weekly, or on a casual basis for the days sought; j. Mr JQ’s enrolment form was treated differently from all other enrolment applications, in that: i. he was not contacted to discuss the days and availability of his childrens’ attendance; and ii. his children were not placed on the list of children expected to be attending the Centre on the first day of Term 1, 2008. [67] The Tribunal takes the view that where there is a conflict between Ms Lawson and Ms Monro-Miller, the evidence of Ms Lawson is to be preferred. Ms Lawson has not worked for the respondent since 13 October 2008, and Ms Monro-Miller has been a moving force behind the respondent’s defence of these proceedings. Ms Monro- Miller’s account of the conversation she had with Ms Lawson is not believable, and the manner in which her evidence was given does not give the Tribunal a sense of comfort in accepting her evidence where it conflicts with Ms Lawson, who gave evidence carefully and with an air of disinterest. Evidence on Damages [68] The applicant sought $40,000 damages on each claim. His damages claim was based on his career as a mortgage broker coming to an end at the end of 2007, and he was looking for work in January 2008 and was reliant upon care for his children on the alternate weeks when they lived with him. He said that the uncertainty about whether he would be offered places or not meant that he was not able to look for a job in 2008. At p 33 of the transcript of 4 February 2009 he said: In terms of 2008, well, I had finished my other sort of source of income, which was limited anyway, and I couldn’t do anything about getting a job, until I could get some sort of child care in place and probably the most damaging thing of all was [for the Centre] not to respond in any way because, in theory, the next day they could respond. … The fact that it was always open at any point in time, I could suddenly have space and I could suddenly [say], “Okay, well, now I’ll stick to plan A” which is “go and get a job”. I’ve got spaces, I can get child care in the best way, at the school where my kids go to, so I don’t have to move them anywhere else. So I didn’t do anything about looking at any other plan B because I was still waiting for a response. So I borrowed — well, my money started to run down. I borrowed money from my family. I ended up withdrawing my superannuation funds and eventually I just ran out of money and had to leave Sydney, which — and the other thing is that leaving Sydney also meant that my shared care arrangement became non-viable, so that my children effectively lost their father and our family doesn’t exist anymore”. [69] He also sought damages on the basis that “it’s had a terrible effect on me”. Mr JQ sought to tender documents going to the issue of the emotional and mental health effects which he sought to keep confidential from the respondent. The tender was disallowed on the basis that the person who would be liable to pay any damages should be entitled to see the material as a matter of procedural fairness. The material was not pressed. [70] Mr JQ was cross-examined about his ability to work during 2008 and the “voluntary” decision to change careers. He wanted more flexibility and more income than he was getting in relation to his position as mortgage broker. He said in cross-examination that he was concerned about the growing compliance conditions with mortgage broking, and the fact that his client base was shrinking — apparently an inevitable factor in mortgage- broking once the broker has exhausted the personal and business contacts of the broker. He was cross-examined about his decision to wind up his mortgage broking business without finding a job beforehand. Mr JQ said that he had not made an application for a job before winding up his business, nor had he made any in 2008. He says that this was because he didn’t have child care. He did look for jobs in 2008, but he was “waiting on a response at that time” (ie, from the respondent) and so didn’t follow any of them up. He said that he would not have sought Page 13 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 employment on the basis that he was able to obtain only casual places for his children. He didn’t “regard it as suitable for permanent employment”. [71] The applicant was also cross-examined on his attempts to find other child care options. Other Out of School Hours care establishments would not accept the children if they were not students at the school, or were too far away. He did not volunteer, and was not asked, if he had looked at other options. The Tribunal finds that the other child-care options which were discussed by the applicant — ie, other Out of School Hours centres at schools which his children did not attend — were the only options explored by the applicant. The Discrimination Complaint — submissions [72] The Discrimination Complaint is one of indirect discrimination. The applicant must establish: a. that the respondent required Mr JQ to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital or domestic status, comply or are able to comply (s 39(1)(b)); b. that the requirement was not reasonable having regard to the circumstances of the case (s 39(1)(b)); c. Mr JQ does not, or is not able to, comply with the requirement or condition (s 39(1)(b)); d. the requirement to comply was imposed on the ground of Mr JQ’s marital status; and e. the respondent discriminated against Mr JQ by either refusing to provide, or setting terms on which the respondent would provide, Mr JQ with goods or services (s 47). [73] Mr JQ put his contentions as follows: a. his marital status was “divorced”; (this issue is not in dispute); b. the respondent required him to book permanent, weekly places for his children if he wanted guaranteed care, which places he could not legally use half of the time; c. a substantially higher proportion of persons who have a different marital status than “divorced” are able to book and use permanent places; d. the requirement to book permanent, weekly places was not reasonable; e. the requirement to book permanent, weekly places was “done on the ground of” his marital status; and f. the requirement to book permanent, weekly places was a term of the provision of the services. [74] Mr JQ’s contention was that because he was required to book or reserve places every week in order to obtain a permanent booking, and the permanent booking brought with it other benefits (such as a lower cost, and priority access to vacation care), he was discriminated against on the basis of his marital status. He says that a higher proportion of persons with children who are not divorced would be able to comply with the booking policies; eg single parents who are not subject to a Family court shared parenting order, or parents who are married or in a de facto relationship. He said that “the issue is the actual booking or reservation policy that requires you to set up a chain of obligation that once I take this Tuesday afternoon it’s permanent. I have an obligation to pay for every Tuesday unless I cancel”. [75] Mr JQ also referred to the question of reasonableness in that it gave “preferential treatment for parents who are able to book permanently”. He says that when faced with a request for alternate weeks, no reason was given which pointed to a need for permanent bookings in the way they were always done; it was more, indeed, the fact that that was the way they were “always done”. Mr JQ indicated that the ability of DBOOSH to change the policy was demonstrated by the fact that it did change the policy for the 2009 school year by imposition of a $100 booking fee to cover any financial implications of the change. He said that he saw “no impediment” to the policy changing from his consideration of the Centre’s finances. [76] On the question of the “substantially higher proportion” issue, Mr JQ relied on Exs AX2, 4, 11, 17 and 46. As an example, AX17 was a submission by Mr JQ on “Shared Parenting Proportion” and he noted that in 2005, the Family Law Act was changed to provide a focus on shared parental responsibility. AX17 annexed statistics from the Family court of Australia to demonstrate that: a. 20% of parents have a shared care split that is between 45:55 and 50:50; b. 35% of parents have a shared care split that is between 70:30 and 50:50; and c. 51% of parents have a shared care split that is between 80:20 and 50:50. Page 14 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 (the percentage figures are cumulative; that is, (b) includes (a), and (c) includes (b)). [77] The effect of this, Mr JQ submitted, was to show that more parents who are subject to Family court parenting orders than not have more than the traditional “every second weekend and half the school holidays” residence with their children, and, Mr JQ submitted, that meant that the residence started involving school days. His extrapolation was that “a substantially higher proportion (ie, more than 95%) of married, de facto or single parents are able to comply with the DBOOSH permanent booking policy, without detriment, compared to the proportion (ie, between 49% to 65%) of divorced and separated parents who can comply without detriment (see para 10(d) of Ex AX17). [78] Mr JQ submitted a number of versions of the figures and submissions, but the above paragraph fairly reflects the theme of his submission. [79] The respondent filed submissions dated 18 March 2010, and made oral submissions on the last day of hearing. In essence, the submissions were that the facts alleged in the Points of Claim did not give rise to any claim under the Act. [80] The respondent argued that under s 47(b) of the Act, the respondent must in fact provide services to the applicant. The letter of 21 December 2007 to Ms Lawson specified that the applicant required services in 2008, and thus was an application for prospective services. Unless the applicant has received services, then there can be no complaint under s 47(b). In support of this argument the respondent pointed to Woods v Wollongong City Council & Ors (1986) EOC 92-174 and in particular to the passage at 76, 678. [81] The respondent submitted that the complaint was as to the terms of services “offered” to him, not terms on which services were in fact “provided” to him. The respondent pointed to sections of the Act which relate to “offered” services — such as offers of employment (s 40(1)(c)), offers of commission work (s 41(1)(c)), offers of contract work (s 42), offers of partnership (s 42A(c)) and so on. The fact that Parliament legislated for areas relating to offers, and yet required that services be “provided”, meant that the applicant, it was submitted, cannot succeed. [82] The respondent further argued that the applicant has not been discriminated against on the basis of his marital status, that being “divorced”. It was submitted that the applicant’s equation of his “family structure” with his status of being “divorced” was not sufficient to link the requirement for alternate-week child care with his marital status. It was submitted that “Although never explicitly identified, the implication is that a characteristic of being a divorced person is that divorced persons have children where custody is shared on an alternate weekly basis” (para 28 of the written submissions). [83] It was submitted for the respondent that, on an indirect discrimination claim, a person’s marital status “does not extend to a characteristic that appertains generally to persons of that marital status or a characteristic imputed to persons of that marital status”. The part of s 39 which extends “something … done on the ground of a person’s marital or domestic status if it is done on the ground of the person’s marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status” applies only to claims of direct discrimination, not to claims of indirect discrimination (see s 39(1A), which restricts its operation to s 39(1)(a) only). The respondent submitted that in order for the applicant’s shared care responsibilities to be a characteristic of a divorced person, it would need to be a more universal aspect of the marital status of “divorced”, rather than an aspect of the “family structure” of some, but by no means all, divorced persons. [84] In support of this argument, the respondent called in aid the cases of Walker v State of New South Wales (2003) NSWADT 13 at [45], and Bear v Norwood Private Nursing Home (1984) EOC 92-019. The respondent submitted that for a characteristic of having shared responsibility for school-age children to be a characteristic of divorced, the applicant would need to have brought evidence of that fact (rather than, as it was submitted he did, bring evidence that an increasing number of divorced parents do in fact share the care of the children). It was submitted that many other custodial arrangements, other than those pertaining to the applicant, could apply, and that shared care could as easily be enjoyed by other parents who were not divorced. [85] A third argument for the respondent was that the policy which enabled either casual or permanent, weekly bookings was not a “requirement or condition”. The respondent submitted that the “Respondent did not impose any requirement on parents compelling them to book their children into child care on a weekly basis” (para 38 of the written submissions). [86] It was submitted that the “requirement or condition” must take the form of a qualification or pre-requisite, not merely a cheaper option for the same service. The respondent pointed into Dawson J’s dicta in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at [55] where it was said: Upon principle and having regard to the objects of the Act, it is clear that the words “requirement or condition” should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees”. Page 15 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [87] See also McHugh J in Waters v Public Transport Commission (1991) 173 CLR 349 at 407, where his Honour referred to a “stipulation or set of circumstances that must be obeyed or endured if those goods and services are to be required, used or enjoyed”. In addition, the requirement or condition relied upon needs to be formulated with some precision: Waters at 393 per Dawson and Toohey JJ and at 406 per McHugh J. [88] The respondent submitted that the applicant’s complaint did not involve a stipulation or a requirement; two services were offered, and the fact that one differed from the other did not mean that one was discriminatory. The respondent also took issue with the fact that the permanent option was “more favourable”. It was submitted that it was “different”, and had disadvantages, such that the parents had to pay for the places whether they were used or not, and had very little flexibility. [89] The respondent also submitted that whether the applicant could, in fact, comply with the requirement or condition, is a question of fact. It was submitted that the test is not whether he could technically, or physically, comply with it but whether he would suffer “serious disadvantage” (see Clarke v Catholic Education Office (2003) 202 ALR 340 at 352–3, upheld on appeal Catholic Education Office v Clarke (2004) 138 FCR 121). In order to show that he suffered “serious disadvantage”, the applicant must have provided evidence to that effect. It was submitted that there was no evidence that the applicant could not comply with a requirement (if such it be) of booking his children in permanently on the ground of his divorced status. The respondent submitted that in fact the problem was that the applicant did not wish to comply with it, since he wanted to work in a full-time Monday to Friday job. He did not work during 2008, and thus there was no “serious disadvantage”. [90] The respondent went on to analyse the question of the “substantially higher proportion” of people who are not divorced being able to comply. It was submitted that the respondent had not identified the pool of persons (of which the “proportion” is taken) precisely. It was submitted that the applicant bears the onus of identifying the groups — see Bonella & ors v Wollongong City Council [2001] NSWADT 194. At paras 19–22 of his Points of Claim, the applicant referred to a group which appeared to be, it was submitted, the entirety of all parents in Australia. The respondent submitted that the proper group was the “members of the Respondent who proposed to enrol their children in 2008”. The respondent submitted that no persons were identified who both were, and were not, able to comply with the relevant condition (see Queensland Health v Forest (2008) 168 FCR 532). [91] It was submitted that the base group should be an “existing” base group, not a hypothetical one — see Banovic (above) at 171 per Brennan J; also Deane and Gaudron JJ at 177–8, Dawson J at 182, 187, 190, and McHugh J at 195 and 198). [92] The respondent submitted that the applicant had not brought evidence of divorced parents who could not comply with the condition; the only evidence of parents apart from the applicant was that of the applicant’s former spouse, who was a divorced parent who was able to use the service. [93] Finally, the respondent submitted that the condition was reasonable. In determining whether or not the requirement was reasonable, the Tribunal must take into account commercial considerations, the basis for the requirement, and whether there is a less discriminatory option. It was submitted that the requirement, not the conduct of the parties, needs to be considered, and there is no question of evaluation of the correctness of the respondent’s decision (see Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 63 at 74. The approach to be taken is that the Tribunal must determine the reasons that the respondent insisted on the requirement or condition, and then determine whether that condition can be objectively justified in all the circumstances. It was submitted that the respondent’s booking policy was to ensure a regular guaranteed weekly income to cover regular expenses. The fact that there were other viable financial models was, it was submitted, not to the point. [94] In reply, the applicant said, in relation to the timing of the Discrimination Complaint and whether he had, or had not, been provided with services at that point, that if the policy were unlawful in 2007 it was unlawful in 2008. He pointed out his difficulties with the permanent booking being described as “not less favourable, just different” and submitted that the benefits a permanent booking gave with vacation care were significant. He submitted that the comparisons he made as to proportions and as to the pool were valid, since the school population varied so much, and that the section enabled the Tribunal to look at more than “just the local population at a point in time” (see Transcript p 71, 19 March 2010). The Discrimination Complaint — determination [95] The Tribunal has considered the arguments of the parties on the Discrimination Complaint, and considers that the best way to approach them is to deal with each of the respondent’s arguments first, on the basis that if any of them is successful, that will go some way towards determining the Discrimination Complaint. [96] As to the argument that the applicant has to show that he has been provided with services prior to making a discrimination complaint; this argument ignores the terms of s 47(a) which provides that “it is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital or domestic status: (a) by refusing to provide the person with those goods or services … ”. If the applicant was refused goods or services, the argument in relation to s 47(b) would not apply. Page 16 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 [97] The applicant framed his case that he was discriminated against on “the terms in which those [ie, child care services] are provided”. Mr JQ did not specify that his complaint was only under s 47(b), nor did he specifically exclude s 47(a); he referred, in his Points of Claim, to s 47 (and to s 39(1)(b)). The respondent pointed to para 11 of the Points of Claim, but later in the Points of Claim Mr JQ referred to his children “being denied access to (the Centre) on the same basis as other children”. [98] In the Tribunal’s view the applicant’s claim cannot be restricted to a case of services actually provided, and the facts surrounding the claim can amount to an actual or (more likely) deemed or constructive refusal by the respondent. Ms Lawson, in interpreting for Mr JQ the policies of the Centre, made it clear that any application for alternate-week bookings would be refused. The Points of Claim did not explicitly restrict the matter to future services, and, accordingly, the argument based on s 47(b) and Woods v Wollongong City Council must fail. [99] The second argument raised by the respondent was that the marital status of being divorced does not have, as a necessary corollary in relation to indirect discrimination, the characteristic of shared parenting. [100] The respondent is correct in saying that a characteristic appertaining to a marital status must be of a “broad or general nature” before it is more than a characteristic pertaining to the applicant personally. In Walker v State of New South Wales (supra), the Tribunal confirmed that the equivalent in question of s 39(1A) had the effect of “enlarging the concept of direct discrimination” (at [36]). [101] Is it the case that it is the marital status of the applicant which is the basis of what he alleges is the less favourable treatment, or is it the shared parenting? While it is true that a shared parenting order can only be applied to persons who have had the Family court make orders in relation to their children (see s 65DAC of the Family Law Act 1975), it is not the case that shared parenting only applies to divorced couples. Persons who are still married, yet separated, may seek parenting orders — persons who are separated former de facto partners could agree, or be ordered by the Family court, to share the custody of their children pursuant to a shared parenting order. See also Goode & Goode [2006] FamCA 1346. [102] The Tribunal is of the view that the characteristic of “divorced” is not a characteristic synonymous with “parent with shared care of school aged children”. Nor is the opposite true — that the shared parenting arrangement — whether by order of the Family court or through some other arrangement — is a characteristic pertaining to a divorced status. True it is that were he not divorced, he may not be required to share the care of his children on alternate weeks. But the fact of his “divorced” marital status is different from his status as a parent of children subject to a shared care order. Even if he is right on all other matters in the Discrimination Complaint, he must show that it is his marital status, not his parenting arrangements, that caused it to be a matter of serious disadvantage for him to comply with the requirement or condition, in circumstances satisfying the balance of the requirements of indirect discrimination. [103] The applicant’s view of “divorced” equating to “person having shared parenting” is made clear by the terms of Ex AX13, which is a document which sets out “the findings and orders I am seeking in this case”. In para 5, the applicant seeks to have conditions of use imposed on the Centre relating to “divorced parents”. The document seeks, for example, “the same level of certainty that divorced parents can book regular spaces for the whole school term or year”. This submission demonstrates that a single parent, who shares care of his or her child with another family member, or a separated de facto parent who may have similar custodial arrangements as the Q family, would not be catered for. [104] The Tribunal is of the view that the applicant is unable to include his shared parenting responsibilities as a component of his marital status under the “characteristics extension” available on complaints of direct discrimination and s 39(1)(a) (see Walker v State of NSW, at [43]). [105] Accordingly, the Tribunal must ask itself whether, absent the issue of shared parenting characteristics, the applicant falls within the indirect discrimination provisions. It is clear from the way he framed his case, and the way that the evidence proceeded, that he does not, since the treatment of him by the respondent did not involve any matter directly proceeding from his status as a divorced person. [106] If we are correct in this, then the applicant’s indirect discrimination complaint cannot succeed. However, we should deal with the other submissions made by the parties. [107] As for the question of whether the applicant proved what he needed to prove by way of the elements of indirect discrimination, the Tribunal finds as follows: a. whether the booking policy constituted a “requirement or condition”. The Tribunal considers that the cases of Banovic and Waters cited on this point are relevant to this case, and that the choice of two sets of booking parameters, at different costs, did constitute a “requirement or condition”. b. whether the applicant was unable to comply with the “requirement or condition”. The applicant could have obtained either casual, or weekly places for his children had he applied for them. He would, had he obtained a full-time job, been in a position to pay for the permanent weekly booking or the casual bookings. He gave evidence that he “ran out of money” in 2008, but while he lays the blame for his unemployed state solely at the door of the respondent, that is not a realistic view. There was no evidence that Mr JQ was Page 17 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 “unable to comply” with the booking policy, “on the ground of” his divorced status. In Hurst v Queensland [2006] 151 FCR 562, a case concerning the interpretation of s 6(c) of the Disability Discrimination Act 1992 (Cth), the court stated that the applicant was: … relevantly "not able to comply" with the requirement or condition that she be taught in English, without the assistance of Auslan. In our view, it is sufficient to satisfy that component of s 6(c) that a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition. A disabled person’s inability to achieve his or her full potential, in educational terms, can amount to serious disadvantage … [at 134]. While Hurst dealt with disability discrimination in education, the test of “serious disadvantage” is applicable here and the Tribunal is not satisfied that Mr JQ suffered, or would have suffered, “serious disadvantage” were he to book either casually (at an extra $1.00 per session, and on an ad hoc basis) or permanently (and having to pay for sessions he did not use). c. the “substantially higher proportion” issue — the evidence brought by the applicant as to the pool and groups were not germane to the issue. The question is not whether more divorced parents than not have shared care of their children, but whether more married, single or de facto persons, whether or not they are members of the respondent or not, are able to comply with the condition. The applicant asked the Tribunal to apply judicial or common knowledge to the question; instead, it is a matter which must be proved by evidence, and the applicant was unable to do so. d. whether the requirement or condition is reasonable; again, given the previous findings, it is not necessary to decide this aspect. However, the Tribunal was of the view that, had the policy been found to constitute indirect discrimination, there was no reasonable ground for the policy, given: i. the fact that any permanent bookings, whether they were weekly or on alternate weeks, still achieved the goals set by the respondent of financial certainty; ii. the reliance by the respondent on casual staff, and the fact that the 15:1 ratio of children to staff was sufficiently great for the acceptance of permanent bookings for less than every week in the term for the respondent to engage in forward planning; iii. the requirement was unduly restrictive given that shift work, casual work, part-time work and cyclical work are all patterns of work that could be excluded by a strict policy of bookings for the entire term. [108] Accordingly, the applicant fails on the Discrimination Complaint, in that he has not made out the elements of indirect discrimination, and in particular fails on the ground that the respondent did not discriminate indirectly against the applicant on the ground of his marital status, that status being “divorced”. The Victimisation Complaint — submissions [109] In order to succeed in a victimisation complaint, the applicant must show: a. that he has been subjected to a detriment; b. on the ground that the respondent knew that he intended to bring a complaint against the respondent under the Act. [110] While the section refers to a person in the role of the respondent as “the discriminator”, there is in fact no requirement for a discrimination complaint to succeed in order to show victimisation. [111] The applicant submitted that “the fact that I lodged a complaint had a real causative effect in but for its presence all this other stuff wouldn’t have happened” (see transcript 19 March 2010 p 46). The reference to “all this stuff” included the loss of his savings and his superannuation by drawing on them while he was not working, and his eventual move from Sydney to rural Victoria and the “loss of his family”. The ADB complaint and the Points of Claim rely, as evidence of victimisation, mainly upon the failure of the respondent to respond to his enrolment form, but it also includes a restriction of access to the respondent in the context of the staff of the respondent refusing to deal with him directly. [112] The applicant said that the respondent dealt only with the letter, and not with the enrolment form. He said that “that seems to be clear victimisation” in the light of the evidence about the manner in which the respondent accepts other enrolment forms — that is, that the enrolment form is treated as a booking request, the parent is either told on Page 18 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 the spot or later contacted about available spots, and the child’s or children’s names are put on the list of children expected to attend that day. Mr JQ said that on learning that he intended to lodge a discrimination complaint, nothing was done — he was not contacted. He was not told either that there were no available spots (as Ms Lawson originally contended was the case) or that his children were put on a waiting list. He was not given the option of enrolling either permanently or casually for the alternate weeks that he wanted. [113] The respondent cited the decision of Sheikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, adopted by this Tribunal in Lal v President, Anti-Discrimination Board [2000] NSWADT 68 at [41], Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at [45], Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 and Correy v St Joseph’s Hospital [2007] NSWADT 104 at [128]. Those cases establish that the applicant must show: a. that the respondent has caused the applicant to undergo, or to experience something; b. that the applicant suffered some consequential detriment in any circumstances; c. the detriment must have occurred on one of the bases in s 50(1)(a) to (d); and d. the applicant must have done (or intended, to the knowledge of the respondent, to do) one of the things in subparas (a) to (d) of s 50(1). [114] The respondent submitted that the “detriment” alleged by the applicant (ie, the failure to act on his enrolment form) must be real, not trivial, and must be determined objectively. It was submitted that the applicant must show that the respondent “subjected” him to a detriment, which term carries with it an incidence of intention: see Bogie v The University of Western Sydney [1990] EOC 92-313 at 78,146. The detriment cannot be unintended. [115] The respondent contended that the Tribunal must reach a conclusion that the reason for the treatment of the applicant must be the alleged contravention of the Act. It must be one of the real reasons for the decision made by the respondent. [116] The respondent submitted that the civil standard of proof applies, and that given the serious nature of the allegations the Briginshaw standard is the appropriate one. The Tribunal, therefore, must be reasonably satisfied that the evidence is of a sufficient strength to support the serious claims made. [117] Having made the submissions about the context of the decision to be made, the respondent submitted that the applicant did not reach the required standard on any of the matters. It was submitted that the complaint should be restricted to the matters in the President’s Report (AX27) and not expanded to matters raised for the first time during the hearing, such as the respondent not responding to the letter of 21 December 2007. [118] The respondent submitted that “in the case of Applicant … his application became part of the maelstrom of dealing with his complaint to the ADB”. It was contended that he was never “refused” care, and that it was up to him to make enquiries of the Centre as to whether his children were, or were not, enrolled. It was submitted that the only reason for the application was that the submission of the enrolment form was “solely for the purpose of making the complaint”. [119] The respondent submitted that even if the applicant were treated differently from other parents, that does not establish that he suffered a detriment. Since he did not follow up the enrolment form, he cannot say that he suffered a loss. It is submitted that the only loss is that he suffered “a loss of opportunity to book his children in after school care”, but that that loss was a hollow one where he did not make an effort to follow up his application. [120] The respondent further submits that if victimisation is found, the letter of offer of 3 December 2008 for permanent alternate weekly booking for the 2009 school year (Annex G of Ms Munro-Miller’s statement) put a stop to any loss which may have been suffered to that point. [121] The respondent submits that the allegations of refusing to provide documents pursuant to a summons cannot be victimisation, since it was conduct that occurred within the proceedings and would be antithetical to the Act which specifically provides for proceedings to be brought. The Victimisation Complaint — determination [122] What is clear from all the evidence is that the applicant has been treated differently from other parents. He was not contacted, nor was his application form dealt with in any way — it appears that not only did nobody check whether there were places available or offer the applicant places — even on a casual basis, or a permanent basis for the whole term — nobody did anything with it. It sat with the letter of 21 December 2007 in a pigeonhole for the whole summer break, notwithstanding that both Ms Lawson and Ms Munro-Miller knew that the letter had an attached enrolment form. [123] The most likely basis for the differential treatment is the existence of the proposed, and then actual, complaint, to the Anti-Discrimination Board. Had the enrolment form arrived without the covering letter, it is unthinkable that the respondent would have allowed it to languish, notwithstanding it arrived on the last day of term. Ms Lawson’s evidence made that clear, in that Ms Charlton opened the envelope “thinking it was an enrolment Page 19 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 form” and, impliedly, prepared to deal with it on that basis. The other possible reason for the differential treatment was the request for a permanent, alternate week booking; but that request was so intrinsically bound up in the foreshadowed complaint to the ADB that it is not sufficient as a separate ground upon which to distinguish the treatment he received. [124] The Tribunal finds that the various statements by witnesses for the respondent that the Q children were enrolled on the receipt of the enrolment form are not correct, and that all the evidence points to the Q children not being enrolled. The reason they were not enrolled is because their enrolment form arrived with an indication that a complaint to the ADB was imminent. It is facile to say otherwise. Accordingly, the thing that was experienced by the applicant is the different treatment received by him and the failure of the respondent to react in the normal way to his application for places. [125] The failure of the applicant to follow up the application does not change this finding. While his failure to act may go to damages, it does not go to causation. [126] The remaining question is whether the failure to enrol the children or to act on his enrolment form was a “detriment”. In our view it was. Mr JQ did not hear from the Centre, as he no doubt expected to do, either on the 21st of December as would have happened in the normal course of things, or in late January or early February 2008 when the Centre re-opened and, again in the normal course of things, enrolment forms which had not yet had places allocated would have been followed up. [127] Mr JQ gave evidence that the failure of the Centre to deal with his application caused him some difficulties in knowing if he could look for work. He undoubtedly lost opportunities to seek work in at the very least January and February 2008. He gave evidence that his children were stranded in Fiji due to a cyclone for the first week or so of 2008, and that his former wife had them part of the time. However, from March or so onwards in 2008 it is true that he did nothing to ensure that he had a place for his children for after-school care during the weeks he had responsibility for them. [128] Was this failure to follow up, as Mr JQ saw it, reasonable? Was the onus on the Centre to do something at that point? Or was the situation, as the respondent submitted, voluntary, in that Mr JQ had wound down his mortgage broking business without looking to find another job, and did not seek any work during 2008 on the basis that he had no care for his children? [129] In the Tribunal’s view, the detriment suffered by Mr JQ, being a failure by the respondent to enrol his children, was suffered from 21 December 2007 until the end of February 2008. It was reasonable for Mr JQ to wait, as other parents may have reasonably waited, for the Centre to telephone him to offer him a place. [130] From March 2008 onwards, Mr JQ was in a position where he must have known that he did not have a place at the Centre for his children. He did not, as might have been reasonable, ring to enquire whether the respondent had received his application form, or whether there was some information missing. He did not seek to find any alternative types of care other than other Out of School Hours Centres, which were clearly inappropriate for children who did not attend those schools. He did not, for example, look for someone local who could pick the children up from school, or come to some arrangement with any other parents at the school who could assist. He did not look for work which would be flexible enough to accommodate a 3 pm finish time every second week. He did not do that most basic of things, which would be to ring the Centre to enquire as to whether any change in policy had been considered after the receipt of his letter. [131] In the Tribunal’s view, the applicant has suffered a detriment and has demonstrated the other factors necessary to establish that he has been victimised by the respondent in relation to the failure to process his enrolment form from 21 December 2007 until 28 February 2008. Compensation [132] Mr JQ seeks compensation. He has not specifically particularised damages between the Discrimination Complaint and the Victimisation Complaint, but essentially damages for either claim arise out of his inability to take a job which would involve full-time work while he did not have child care for the afternoons when the children were in his care. [133] The respondent points to the fact that the applicant did not: a. actively look for work during 2008; b. try to have casual bookings made for his children for the days on which they were in his care; or c. look for realistic alternative child care solutions. [134] The applicant gave evidence that he had used up available superannuation, had borrowed from family, and was no longer able to afford to live in Sydney and had to move to Victoria, where he made some enquiries as to employment, so far without success. He is of the view that the failure of the respondent to deal with his complaint in a timely manner (which we have found was due to victimisation), or to offer him permanent places on an alternate- Page 20 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 week basis, which appears to be the only basis upon which he would accept them, is the cause of him now having no contact with his children and being in a precarious financial situation. [135] In the Tribunal’s view, while there was a detriment suffered during the early months of 2008, the applicant has failed to mitigate his damages and to reduce the impact of the Centre’s conduct upon himself. It is somewhat unbelievable that the applicant would do nothing, except pursue his Anti-Discrimination complaints, all the while borrowing money, spending advances on his superannuation, and eventually moving away from his children on, it seems, a matter of principle. [136] In our view it was not reasonable to take such an extreme approach to the provision of child care places on the terms sought by the applicant. The very least that the applicant could have done was to telephone the Centre, or even call in — presumably he attended the school when he dropped his children off or picked them up, and each of those attendances would have been during the opening hours of the Centre. [137] The applicant also seeks damages for non-economic loss. In submissions he downplayed this aspect, because the total amount of damages on each claim is $40,000, and he felt that he would achieve that figure with the losses he suffered to his savings. However, we are of the view that only a small part of the losses to his savings was reasonable in the circumstances. He has sought damages for stress and mental anguish, both for himself and his family. In AX13 he seeks: $40,000 compensation for loss of financial position, and for the stress and mental anguish caused to the Applicant’s family by the actions of DBOOSH. [138] There is no evidence of any stress or mental anguish suffered by his family. He seeks (in AX13) that the members of the Management Committee send letters of apology to the applicant’s children. The only person who gave evidence on Mr JQ’s behalf was himself. There was no medical or other evidence demonstrating any psychological or other difficulties, either on his own account or those of his children. However, during the proceedings he very clearly exhibited distress caused by the dispute with the respondent and often was extremely emotional. The applicant has the onus of proving his loss, and in the circumstances, there is very little that the Tribunal can go on in relation to quantum of damages. [139] In Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22, the Appeal Panel set out the proper approach to assessing loss. At [48] the Appeal Panel said: 48 When determining what may constitute the "loss" for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall [1991] HCA 15 ; (1990) 172 CLR 60 at 63: The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed … [140] In Carter v Brown [2010] NSWADT 109, the applicant was successful in only some of his applications. In that case the Tribunal said (at [162]: As the applicant has not been successful in all of his complaints, any award must be limited to loss arising out of that conduct found to constitute unlawful conduct pursuant to ss 49ZT(1) and s 50 of the Act. The applicant’s evidence did not apportion his distress to particular incidents. We, therefore, must identify whether any of the distress and humiliation suffered by the applicant with respect to each respondent, is attributable to the incidents which have been found proved. [141] In the circumstances, we have found that the only incident suffered by the applicant which can sound in damages is the failure by the respondent to deal with the enrolment form within a reasonable time. The applicant was working until about that date, and during that time did not look for work, he says, on the basis that he expected to be offered a child care place. Once that expectation was clearly incorrect, and the applicant did nothing to seek a place for his children, even on a casual basis, damages suffered after that time are not compensable. [142] In our view, the damages are necessarily limited. The expenditure of the entirety of the applicant’s financial resources was done at some point in the latter half of 2008, when he moved to Victoria. On any view of it, the Page 21 of 21 JQ v Double Bay Out of School Hours Inc (No 2), [2010] NSWADT 257 damages payable to the applicant are much less than the $40,000 he seeks in relation to the Victimisation Complaint. [143] We are of the view that the appropriate order is that the respondent pay the applicant the sum of $5,000 in relation to the Victimisation Complaint. End of Document