Purvis v State of New South Wales (Department of Education & Training) [2002] FCAFC 106 ; [2002] FCA 503

Purvis v State of New South Wales (Department of Education & Training) [2002] FCAFC 106 ; [2002] FCA 503

The proper comparator for assessing discrimination under s 5 of the Disability Discrimination Act 1992 (Cth) is a hypothetical student without the relevant disability but who exhibited the same behaviour as the complainant; treatment amounting to exclusion based on unacceptable violent and antisocial behaviour, even if caused by disability, does not constitute discrimination under s 22 unless it is shown that a student without the disability but with the same behaviour would have been treated more favourably.

Parties
Appellant: Alexander Purvis on behalf of Daniel Hoggan; First Respondent: State of New South Wales (Department of Education and Training); Second Respondent: Human Rights and Equal Opportunity Commission
Jurisdiction
Australia
Judgment Date
24 April 2002
Procedural Posture
Appeal / Full Court Judgment Following Appeal From Decision of Single Judge of the Federal Court
Outcome
Appeal dismissed
Legal Topics
Disability Discrimination, Statutory Interpretation, Comparators in Discrimination Law
Human Rights Discrimination Law Education Law Disability Discrimination Statutory Interpretation Comparators in Discrimination Law

Case Brief

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Parties

Alexander Purvis on behalf of Daniel Hoggan

Appellant

State of New South Wales (Department of Education and Training)

First Respondent

Human Rights and Equal Opportunity Commission

Second Respondent

Procedural Posture

Appeal / Full Court Judgment Following Appeal From Decision of Single Judge of the Federal Court

Legal Issues

  1. 1 Whether the exclusion of a student exhibiting antisocial and violent behaviour, where the behaviour is a consequence of disability, constitutes discrimination under s 22 of the Disability Discrimination Act 1992 (Cth)
  2. 2 What is the proper comparator for the purposes of s 5 of the Disability Discrimination Act 1992 (Cth)

Ratio Decidendi

The proper comparator for assessing discrimination under s 5 of the Disability Discrimination Act 1992 (Cth) is a hypothetical student without the relevant disability but who exhibited the same behaviour as the complainant; treatment amounting to exclusion based on unacceptable violent and antisocial behaviour, even if caused by disability, does not constitute discrimination under s 22 unless it is shown that a student without the disability but with the same behaviour would have been treated more favourably.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant is to pay the costs of the first respondent of the appeal.