ERG (on behalf of ABC) v St Catherine’s School Sydney; ERG v St Catherine’s School Sydney [2021] NSWCATAD 144

ERG (on behalf of ABC) v St Catherine’s School Sydney; ERG v St Catherine’s School Sydney [2021] NSWCATAD 144

The Tribunal refused leave because the race discrimination complaint had little or no prospect of establishing less favourable treatment or causation: the comparator student received the same suspension, there was no evidence the interview treatment was less favourable, and there were no facts supporting a reasonable inference that race was the reason for the respondent's conduct. The victimisation complaint also lacked substance because, although the alleged conduct could amount to detriment, there was no real evidence that any detriment was caused by protected conduct under s 50, and there were plausible alternative explanations including the applicant's refusal to pay fees and...

Jurisdiction
Australia
Judgment Date
01 June 2021
Procedural Posture
Application for Leave to Proceed With Complaints Under the Anti Discrimination Act 1977 (nsw) / Leave Application After the President's Delegate Declined the Complaints as Lacking in Substance
Outcome
Leave to proceed with both the race discrimination complaint and the victimisation complaint was refused.
Legal Topics
['race Discrimination in Education' 'victimisation' 'leave to Commence Proceedings' 'less Favourable Treatment' 'causation' 'amendment of Complaint']
['human Rights' 'anti Discrimination' 'administrative Law'] ['race Discrimination in Education' 'victimisation' 'leave to Commence Proceedings' 'less Favourable Treatment' 'causation' 'amendment of Complaint']

Case Brief

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Procedural Posture

Application for Leave to Proceed With Complaints Under the Anti Discrimination Act 1977 (nsw) / Leave Application After the President's Delegate Declined the Complaints as Lacking in Substance

Legal Issues

  1. 1 ['Whether leave should be granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint of race discrimination to proceed.' "Whether the applicant's child had any sufficient prospect of proving less favourable treatment on the ground of race by the respondent." 'Whether the applicant had any sufficient prospect of proving victimisation under s 50 of the Anti-Discrimination Act 1977 (NSW).' 'Whether new material concerning alleged further incidents could be admitted or considered before leave was granted.']

Ratio Decidendi

The Tribunal refused leave because the race discrimination complaint had little or no prospect of establishing less favourable treatment or causation: the comparator student received the same suspension, there was no evidence the interview treatment was less favourable, and there were no facts supporting a reasonable inference that race was the reason for the respondent's conduct. The victimisation complaint also lacked substance because, although the alleged conduct could amount to detriment, there was no real evidence that any detriment was caused by protected conduct under s 50, and there were plausible alternative explanations including the applicant's refusal to pay fees and...

Court Disposition

Leave to proceed with both the race discrimination complaint and the victimisation complaint was refused.

Orders

  • ['Leave to proceed with the complaint of race discrimination is refused.' 'Leave to proceed with the complaint of victimisation is refused.']