Zhang v University of Tasmania [2009] FCAFC 35 (23 March 2009)

Last Updated: 23 March 2009

FEDERAL COURT OF AUSTRALIA

Zhang v University of Tasmania [2009] FCAFC 35

DISCRIMINATION – university – termination of Phd candidature on the basis of disruptive behaviour – imputed disability – serious psychological problems – relevant comparator – person manifesting the same behaviour but without the disability

Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 6, 22
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Acts Interpretation Act 1901 (Cth) s 13(3)
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 applied
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 followed
O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 cited
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 applied
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 cited
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 cited
Zhang v University of Tasmania [2008] FCA 516 affirmed
Warren v Coombes [1979] HCA 9; (1978) 142 CLR 531 applied
Annand & Thompson Pty Ltd v Trade Practices Commission [1979] FCA 36; (1979) 25 ALR 91 applied
Devries v Australian National Railways Commission (1993) 177 CLR 472 applied
SS Hontestroom v SS Sagaporack [1927] AC 37 applied













YUEHUA ZHANG v UNIVERSITY OF TASMANIA, DALLAS HANSON, JIM GARHAM, PHILLIPA ORMANDY, CAREY DENHOLM, JULIAN YAXLEY and KYLIE SHANAHAN
TAD 16 of 2008

GRAY, JESSUP AND GORDON JJ
23 MARCH 2009
MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 16 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

YUEHUA ZHANG Appellant

AND:	UNIVERSITY OF TASMANIA First Respondent DALLAS HANSON Second Respondent JIM GARHAM Third Respondent PHILLIPA ORMANDY Fourth Respondent CAREY DENHOLM Fifth Respondent JULIAN YAXLEY Sixth Respondent KYLIE SHANAHAN Seventh Respondent

JUDGES:	GRAY, JESSUP AND GORDON JJ
DATE OF ORDER:	23 MARCH 2009
WHERE MADE:	MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

1. The sixth and seventh respondents be removed as parties to the proceeding.

2. By consent, the appellant is granted leave to file an amended notice of appeal containing proposed amended ground one which should read: the learned primary judge erred in finding that the respondents’ conduct did not constitute unlawful discrimination against the appellant in contravention of s 22 of the Disability Discrimination Act 1992 (Cth).

3. Leave to file an amended notice of appeal in relation to proposed amended grounds 2, 3, 4 and 5 is refused.

4. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TAD 16 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

YUEHUA ZHANG Appellant

AND:	UNIVERSITY OF TASMANIA First Respondent DALLAS HANSON Second Respondent JIM GARHAM Third Respondent PHILLIPA ORMANDY Fourth Respondent CAREY DENHOLM Fifth Respondent JULIAN YAXLEY Sixth Respondent KYLIE SHANAHAN Seventh Respondent

JUDGES:	GRAY, JESSUP AND GORDON JJ
DATE:	23 MARCH 2009
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

GRAY J:

THE NATURE AND HISTORY OF THE PROCEEDING

1 The principal issue in this appeal concerns an allegation by the appellant of discrimination against her on the ground of an imputed disability, in contravention of the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"). The appeal is from a judgment of a single judge of the Court, published as Zhang v University of Tasmania [2008] FCA 516. His Honour dismissed with costs an application filed by the appellant under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), claiming compensation for unlawful discrimination under the Disability Discrimination Act, as well as under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth).

2 The appellant had been enrolled as a graduate student, pursuing a Doctorate of Philosophy, at the first respondent, the University of Tasmania ("UTAS") from September 1998 to October 1999. The second respondent, Dr Dallas Hanson, a Senior Lecturer in the School of Management at UTAS, was the appellant’s supervisor in her research. The third respondent, Dr Jim Garnham, was the Acting Head of the School of Management at UTAS at relevant times. The fourth respondent, Ms Phillipa Ormandy, was Executive Officer in the office of the Pro-Vice-Chancellor (Research) of UTAS. The fifth respondent, Dr Carey Denholm, was Dean of Graduate Studies by Research at UTAS. There were two other respondents named in the notice of appeal, who had been named in the appellant’s application at first instance, but the appellant did not proceed against them at first instance and did not desire to do so on appeal.

3 At first instance, the appellant particularised her claim of discrimination as follows:

1. Failing to provide me with the Overseas Postgraduate Research Scholarship ("OPRS Scholarship") that I had won in 1998.

2. Paying me only $67.39 for the first hour and $44.93 for repeated hours of tutorial work whilst the School of Management of UTAS paid about $90 per hour to the other tutors. My supervisor, Dr Dallas Hanson, told me that "if you argue about payment you cannot be anybody’s PhD candidate. I had a Chinese PhD candidate in the past, who argued about payment. Then he/she left".

3. Falsely suspecting that I was in financial problem or had no money because of my Chinese origin.

4. Treating me less favourably by: • not conducting annual review for my academic progress; • not submitting my paper to the 1999 ANZAM Conference hosted by the UTAS; • advising me that the Faculty of Commerce & Law had "no scholarship" even though the information indicated that the scholarship was available at the time. [sic] • breaching my confidential information by obtaining a letter from UTAS counseling [sic] services without my permission.

5. Imputing that I had potentially suffered "serious psychological problem [sic]", then referring me to UTAS Counseling [sic] Service and treating me as if I had such a disability.

6. Terminating my PhD candidature in Oct. 1999.

4 At the trial, the appellant did not have the benefit of legal representation. Evidence-in-chief at the trial was given by means of affidavits. The trial was lengthy. Much of the focus was on the issues raised in the first four paragraphs of the particulars in the application. As a consequence, most of the reasons for judgment of the learned primary judge were devoted to a consideration of those issues. His Honour did deal with the particulars in paras 5 and 6, but the appellant argued on appeal that he did not do so adequately.

5 The appeal was commenced by notice of appeal, filed by the appellant without the benefit of legal representation, on 15 May 2008. By the time it was heard, the appellant was represented by counsel who sought leave to rely on an amended notice of appeal, containing five grounds of appeal in lieu of the two grounds in the original notice of appeal. Counsel for the appellant informed the Court that the appellant no longer sought to pursue the allegations in paras 1 to 4 of her particulars, and that the appeal was confined to the allegations in paras 5 and 6, which were to be read together. After hearing argument on behalf of the appellant on the five grounds, the Court indicated to counsel for the respondents that it was necessary for them to only deal with the first ground. That ground alleged error on the part of the primary judge in finding that the respondents’ conduct did not constitute unlawful discrimination against the appellant in contravention of s 22 of the Disability Discrimination Act.

THE LEGISLATION

6 The references in these reasons for judgment to provisions of the Disability Discrimination Act are to provisions of that Act as it stood at the time of the relevant events. In that form, the Disability Discrimination Act contained in s 4(1) a definition of "disability" in the following terms:

disability, in relation to a person, means: (a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person’s body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

7 Section 5 of the Disability Discrimination Act provided as follows:

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

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

8 Section 6 of the Disability Discrimination Act provided as follows:

For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

9 Section 22 of the Disability Discrimination Act provided relevantly as follows:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person’s disability or a disability of any of the other person’s associates:

(a) by refusing or failing to accept the person’s application for admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability or a disability of any of the student’s associates:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

(b) by expelling the student; or

(c) by subjecting the student to any other detriment.

10 By s 4(1), "educational authority means a body or person administering an educational institution" and "educational institution means a school, college, university or other institution at which education or training is provided."

THE PRIMARY JUDGE’S REASONS

11 The primary judge dealt with para 5 of the appellant’s particulars at [44]–[50] of his reasons for judgment in the following terms:

[44] Ms Zhang alleged that Dr Hanson "imput(ed)" that she "had potentially suffered ‘serious psychological problem [sic]’" and suggested she was "suicidal" and referred her to UTAS counselling services and treated her as if she had such a disability. She also alleged that Professor Denholm imputed that she had "potentially metal health problem [sic]" and treated her as if she had such a disability.

[45] Dr Hanson denies that he "imputed" to her any serious psychological problem but did think it was possible she had problems with which a counsellor might help. His observations were that she was "antagonising everyone she came into contact with at the University, not just University academic or administrative staff but student association people as well". [46] Dr Hanson therefore suggested that she contact a counsellor but left it up to her whether she did so. He had no authority to "refer" someone to counselling. [47] Having seen Ms Zhang giving evidence, Dr Hanson’s assessment of her does not come as a surprise to me. Ms Ormandy said that at a student function Ms Zhang was upset and distressed and threw a plate of food at her. [48] Professor Denholm as Dean of Graduate Studies by Research had responsibility to ensure appropriate levels of pastoral care. He did have concern about Ms Zhang, including concern for what might be the potential for suicidal behaviour. In particular he expressed concern following an email she wrote on 25 September 1999 in which she agreed that she was "too good for this world". [49] He discussed these concerns with Ms Zhang. It was apparent to him that she was exhibiting signs of stress; she was upset and angry and in the course of that conversation he suggested to her the possibility of counselling. Mrs Beasley was present to assist Ms Zhang to talk through some issues. At the end of the meeting it was agreed that Ms Zhang could meet with Mrs Beasley independently for assistance as she was very upset. Professor Denholm is a psychologist. He said that as such

I thought it would be inappropriate not to suggest counselling in the circumstances and as Dean I considered I had a duty of care to do so. In doing that I did not "impute" any mental problems to (Ms Zhang). It was apparent that she was stressed and I treated her no differently from the way I would have treated any PhD candidate in the same circumstances.

[50] I accept Professor Denholm’s evidence that he dealt with Ms Zhang in a way consistent with his professional expertise and his duty to her and UTAS. He was trying to help her, not discriminate against her.

12 His Honour dealt briefly with para 6 of the particulars at [51]:

This has already been discussed. There is no basis for a finding of discrimination on any of the statutory grounds.

13 The reference to this ground as having "already been discussed" must be a reference to the facts that his Honour found earlier in his reasons for judgment. At [7], his Honour found that, on 7 October 1999, Dr Garnham recommended to Professor Denholm that the appellant’s candidature be terminated. The recommendation stated that her supervisor had indicated that he was unable to continue in that capacity and the School of Management did not have the required skills and capacity to provide alternative supervision. It also stated that "[t]he level of disputation that has occurred both within the School and University in relation to the question of a scholarship and sessional teaching have raised serious concerns and supported the recommended action." At [8], his Honour recorded that, on 14 October 1999, Professor Denholm met with the appellant in the presence of Margaret Beasley, Head of Student Counselling at UTAS. He then wrote a letter to the appellant, attaching a list of conditions. His Honour set out the terms of the letter in [8] and the list of conditions in [9] of his reasons for judgment. (The relevant terms of the letter are set out in [24] below, and the whole of the list of conditions is set out in [25] below.) His Honour then recorded at [10] that, on 13 December 1999, the appellant replied, advising that she wished to transfer to another university. In the following year, she enrolled at the University of Wollongong, where she was subsequently awarded the degree of Doctor of Philosophy. She has since obtained a teaching post at a university in New Zealand.

IMPUTING A DISABILITY

14 The primary judge did not make a clear finding as to whether any of the respondents had imputed a disability to the appellant. His Honour focused on whether the appellant’s behaviour justified assessments that Dr Hanson and Professor Denholm made of her. He also made a finding at [50] about Professor Denholm’s motivation for doing what he did. These were not issues with which his Honour needed to be concerned. It was of no legal significance whether Dr Hanson and Professor Denholm were justified in forming the view that the appellant had a psychological problem. The question was whether they did form that view, and whether they thereby imputed such a disability to the appellant. In considering the manner in which they dealt with the appellant after making any such assessment, motivation is also irrelevant. The question is whether the manner of dealing involved discrimination on the ground of an imputed disability. Discrimination can result from attempts to help, or from patronising behaviour towards a person.

15 The primary judge’s assertion at [45] that "Dr Hanson denies that he ‘imputed’ to her any serious psychological problem, but did think it was possible she had problems with which a counsellor might help", is based on a passage in Dr Hanson’s affidavit. As is always the case with evidence-in-chief on affidavit, some care must be taken in accepting such a statement at face value. In the appellant’s cross-examination of him, Dr Hanson had no difficulty in admitting that he had refused to continue as the appellant’s supervisor because of "my concerns about your potentially serious psychological problems" and because he could not "handle someone who I thought had psychological problems at the time". Further, at the relevant time, on 6 October 1999, Dr Hanson sent a memorandum to Dr Garnham, which his Honour did not mention in his reasons for judgment. The memorandum was in the following terms:

Re: Ms Jane Zhang, Ph.D Candidate I wish to highlight concerns about the wellbeing of Jane Zhang. Ms Zhang has provided evidence of potentially serious psychological problems and is also finding considerable difficulty in adapting to the social demands of life as a post-graduate student in this University. In partial evidence of these problems I attach a copy of a letter recently sent by Ms Zhang to Professor Peter Dowling and (separately) to me. I lack the formal training in psychology and counselling essential in supervision of such a student and am therefore unable to continue in the role of supervisor to Ms Zhang. To continue would not be in her best interests. I also recommend that we urgently seek professional counselling for Ms Zhang.

16 There can be little doubt that "psychological problems" and "serious psychological problems" fall within the definition of "disability" in s 4(1) of the Disability Discrimination Act, particularly para (g) of that definition. Nor can there be any doubt that writing a memorandum to a senior colleague, asserting that a person has "provided evidence of potentially serious psychological problems", is to impute such problems to her. There is nothing to suggest that the word "imputed" in para (k) of the definition of "disability" in s 4(1) of the Disability Discrimination Act bears a meaning other than its ordinary meaning of "attributed". The evidence amply justified a finding that Dr Hanson had imputed to the appellant a disability. Such a finding depended entirely upon the evidence of Dr Hanson and of what he wrote in his memorandum of 6 October 1999. It did not depend upon any evidence of the appellant. The fact that his Honour reached an adverse conclusion about the appellant’s credit could make no difference. (In any event, that adverse finding was based entirely on the fact that, in an email before she arrived in Tasmania, the appellant attempted to persuade UTAS to provide her with a false letter stating that she had been awarded a scholarship, to assist her to get a student visa. The fact that a person has been willing to tell a lie on one occasion is not normally a good reason for finding that he or she is willing to lie on all occasions, particularly when giving evidence. The process of fact-finding does not depend upon the attribution to one party of a monopoly on truth and to the other of a propensity to falsehood. It depends on the application of the probabilities to the evidence, in an endeavour to reconstruct the facts in accordance with the balance of those probabilities. In most cases, it is unnecessary to stigmatise a party, or a witness, as a liar. The more usual reason for conflicts of oral evidence is that people reconstruct events differently in their own minds; often this reconstruction involves a subconscious process of presenting the person’s own role in the events in the best possible light.)

17 Dr Hanson’s memorandum of 6 October 1999, in which he imputed to the appellant a disability, was not without its effect. On the following day, 7 October 1999, Dr Garnham made a crucial change to a document that affected the appellant’s future at UTAS. On 8 September 1999, both the appellant and Dr Hanson had signed a form recording the results of the appellant’s 1999 annual review of progress. The form offered four options in the following terms:

(a) progress has been satisfactory and the thesis (or equivalent) is likely to be submitted within the time limits set by the Board of Graduate Studies by Research. ...

(b) progress has been generally satisfactory, but the following matters have required attention ...

(c) the following matters have affected progress significantly and are receiving attention. (Please attach an additional statement if necessary.) ...

(d) the performance of the candidate has been unsatisfactory in the following aspects. We recommend the termination of candidature under Rule 70.13 (please attach if necessary) ...

18 When Dr Hanson and the appellant signed this form, option (b) had been circled. In the space following the printed words of the form for that option appeared the handwritten words "Building of expertise in research methods and work on fluency and accuracy in written english [sic]." The primary judge did not refer to the annual review in his reasons for judgment.

19 On 7 October 1999, Dr Garnham drew a cross through the "(b)" and circled instead option "(d)". To that option, he added the note "Please see attached memo". The primary judge did not refer to this fact in his reasons for judgment. At the same time, Dr Garnham wrote a memorandum to Professor Denholm, with a copy to Dr Hanson, entitled "Re: Ph.D. Candidature: Ms Yuehua Zhang", in the following terms:

Since the attached 1999 Annual Review of progress was signed by the above candidate and her supervisor, a number of events have been drawn to my attention by her supervisor and others that confirm a pattern of behaviour which require me to change the recommendation to (d). I therefore recommend the termination of the candidature under Rule 70.13. Her supervisor has indicated that he is unable to continue in that capacity and the School does not have the required skills and capacity to provide alternative supervision. This advice is provided after consultation with senior colleagues within the school who support this recommendation. I must point out that the School has endeavoured to support Ms Zhang in every way possible and made it possible for her to participate in OECD Conference and in the STEP program for doctoral candidates at some considerable expense to the school. The level of disputation that has occurred both within the School and the University in relation to the question of a scholarship and sessional teaching have raised serious concerns and support the recommended action.

20 While Dr Garnham maintained in his evidence a denial that he had imputed to the appellant any disability, it is clear that the imputation of a disability by Dr Hanson, apparent from his own evidence and his memorandum of 6 October 1999, precipitated the events of 7 October 1999.

21 Professor Denholm was a qualified psychologist. As the primary judge found at [48]-[49] of his reasons for judgment, Professor Denholm did have a concern about the appellant, including a concern about potential for suicidal behaviour. He suggested to her the possibility of counselling. Although he denied imputing mental problems to the appellant, it is plain that he did so. Again, this finding does not depend on any evidence of the appellant. It can hardly be supposed that a qualified psychologist would recommend that a student undertake counselling without believing that there was a reason for her to do so. Having made this suggestion, Professor Denholm took the steps outlined in [13] above, which led to the appellant terminating her studies at UTAS.

22 The evidence therefore established that both Dr Hanson and Professor Denholm attributed to the appellant a psychological condition. This amounted to imputing to her a disability, within the meaning of the Disability Discrimination Act. A finding to this effect should have been made. The same finding could not be made against Dr Garnham with any confidence, but Dr Hanson’s imputation of a psychological condition was clearly a cause of the chain of events that included Dr Garnham’s change of the annual review and his memorandum recommending to Professor Denholm the termination of the appellant’s candidature. Whether or not the appellant actually had a psychological condition does not matter. The effect of the Disability Discrimination Act is the same whether the disability is actual or imputed. The question is whether the imputation of the disability resulted in discrimination against the appellant.

WAS THERE DISCRIMINATION?

23 If he had made the findings he should have made about imputing a disability, the primary judge would then have had to determine whether there was discrimination against the appellant because of that disability. Such discrimination would have involved either treating or proposing to treat the appellant less favourably, in circumstances that were the same or not materially different, than the respondents treated or would treat a person without the disability (s 5 of the Disability Discrimination Act), or requiring the appellant to comply with a requirement or condition with which a substantially higher proportion of persons without the disability complied or would be able to comply, which was not reasonable having regard to the circumstances of the case, and with which the appellant did not or could not comply (s 6 of the Disability Discrimination Act). In the case of an educational authority such as UTAS, s 22(2) of the Disability Discrimination Act directs particular attention to the denial of access, or limiting of access to a benefit provided by the educational authority, expulsion, or subjecting the student to any other detriment.

24 It will be recalled that the primary judge made no finding at all relevant to these questions, other than that there was "no basis for a finding of discrimination on any of the statutory grounds." As is said in [13] above, his Honour’s findings of fact did include, at [8], the text of a crucial letter written by Professor Denholm to the appellant. The letter was dated 8 November 1999. This letter began by referring to an email of 12 October 1999, by which Professor Denholm had invited the appellant to the meeting of 14 October 1999 (referred to by the primary judge in [49] of his reasons for judgment, quoted in [11] above). The relevant parts of the letter of 8 November 1999 are as follows:

On the 12.10.99 I wrote to you as Dean of Graduate Studies by Research indicating that I had received a recommendation from your Head of School that your candidature at this University be terminated. The Head of School indicated that the School of Management no longer had the capacity to provide the type of supervision you have been receiving since your enrolment. As required under clause 13.1(b) and 13.2 (Rule 70, Rules of Higher Degrees by Research) I conducted a preliminary investigation of your candidature...

In summary, my investigation has determined the following:

• While it is regrettable that you have suffered disappointment in failing to receive an OPRS , [sic] there is evidence that you were aware of this prior to leaving your country to study in Tasmania.

From documents provided it is evident that you have failed to accept decisions of university officers in relation to the matter of the OPRS.

• There are numerous examples of on-going and unnecessary disputation between you and various officers within this University regarding the OPRS and other matters. Your behaviour has impacted adversely on the working lives of members of academic staff within the School of Management. As the Head of School has indicated that the School can no longer offer supervision under the same conditions as before; and under clause7.1, [sic] and 7.2 of Rule 70, candidature must be conducted under a supervisor, I outline two options below for you to consider if you wish to continue your studies.

1. Continue your studies within the School of Management, under a set
of strict conditions; (attached A) which given the extent of the
relationship breakdown between you and the School, may not be feasible.

2. Transfer your candidature to another Australian University capable
of offering supervision in your field. NB: (Should you decide to transfer your candidature, the University of Tasmania would refund the fees you have paid to date). Please see suggestions under B.

I am required to inform you that under clause 13.3 (Rule 70) you have 14 days after receiving this notification to provide written comments to me about this recommendation.

25 The attached conditions to which the first of these options referred were as follows:

A. Conditions

1. Refrain from any further correspondence or discussion regarding the matter of your unsuccessful OPRS with University staff members.

2. Abide by all University and school regulations relating to procedures for higher degree candidature and use of university facilities (in particular with reference to copyright laws.)

3. Provide any draft research writing (including thesis work) in a clear, proof read form.

4. Limit contact and meetings with your supervisor to one half hour session a week (Thursdays 3.30-4.00 or some other mutually convenient time).

5. Refrain from dealing directly with School staff on matters concerning tutorial employment, dealing only with the Head of School.

B. Australian Universities with capacity and expertise in your area 1. Wollongong 2. Deakin.

26 After seeking an extension of time to respond, the appellant wrote a letter dated 13 December 1999, opting to complete her studies elsewhere.

27 The effect of the primary judge’s reasoning is to take this letter as constituting an offer of two genuine options and to treat the appellant as having made a free election between them, selecting the second of them. The appellant’s case was that she was offered no real choice at all. Dr Hanson had already stated that he would not continue to supervise the appellant. Dr Garnham had already stated that the School of Management did not have anyone else who would be able to supervise her in her field of research. Professor Denholm’s letter of 8 November 1999 confirmed these propositions in its opening paragraph. The letter contained no indication of the reason for any change of position indicated by the words "under the same conditions as before" in the conclusion. In other words, having been given to understand that there was no supervisor available, the appellant was then being offered supervision on conditions. Plainly, if there were no supervisor available, even if she should be able to fulfil the conditions, UTAS would not be able to provide a supervisor. Counsel for the respondents was not able to point to any evidence of a change of position on the part of Dr Hanson to enable the conditions to be met. There was, therefore an offer to the appellant of two options, one of which she could not avail herself of because Dr Hanson, having imputed to her a disability, and having elected not to continue to supervise her because of that imputed disability. Her only option was to accept the second course offered, which was to terminate her candidature at UTAS herself.

28 These circumstances gave rise to the possibility of discrimination under both s 5 and s 6 of the Disability Discrimination Act. They necessitated the making of findings about a number of issues. The primary judge should have resolved the question whether, by offering the appellant an option that was not a genuine option, causing her to terminate her own candidature, UTAS had denied or limited her access to a benefit provided by UTAS (s 22(2)(a)) or subjected her to any other detriment (s 22(2)(c)), and thereby treated, or proposed to treat, her less favourably than it would treat a person without her imputed disability, in circumstances that were not materially different (s 5(1)). In addition, his Honour should have made a finding as to whether the appellant had been required to comply with requirements or conditions with which a substantially higher proportion of persons without her imputed disability complied or were able to comply with, and which were not reasonable having regard to the circumstances of the case (s 6). It is true that s 6 is directed primarily at what is called indirect discrimination. The heading to the section indicates this, although the text of the section does not. The terms of the heading to the section cannot control the construction of the section itself, as the heading is not taken to be part of the Act: s 13(3) of the Acts Interpretation Act 1901 (Cth).

29 In determining whether the appellant was treated less favourably than the respondents would have treated a person without her imputed disability, in circumstances that were the same or not materially different, the primary judge would have been required to consider Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [11] per Gleeson CJ and [222]-[232] per Gummow, Hayne and Heydon JJ). That case stands as authority for the proposition that, in a case involving a disability affecting the behaviour of a person, the proper comparator is a person with the same behavioural characteristics, although without the disability. It can be accepted that there were formal assertions in the affidavits of Professor Denholm, Dr Garnham and Dr Hanson that they did not treat the appellant any differently from the way they would have treated another PhD student who behaved in the same way. Again, these assertions must be approached with care, as they have no doubt been included in the affidavits by the respondents’ legal representatives, with an eye to the provisions of the Disability Discrimination Act. It is also true that the unrepresented appellant did not cross-examine directly about those assertions. Nevertheless, there is evidence that might have led to the conclusion that, on a proper comparison, the appellant was treated less favourably than a comparable student. For instance, the evidence revealed that UTAS had written procedures for dealing with a personality clash between a supervisor and a student. Although the detail of those procedures is not in evidence, it appears that no attempt was made to follow them. UTAS also had written rules governing the process of termination of the candidature of a student pursuing a degree by research. Those rules included a right of review of any decision to terminate the candidature. Although Dr Garnham’s recommendation was for termination of the appellant’s candidature, and Professor Denholm initially embarked on the required procedure, by holding a meeting with the appellant, Professor Denholm did not continue to follow the procedure, and therefore did not afford to the appellant rights she had under the written rules. Instead, he wrote the letter of 8 November 1999, offering the options, one of which was not available. It may well be that these matters would give rise to a finding of less favourable treatment.

30 There were therefore several questions vital to a proper consideration of the appellant’s claims in paras 5 and 6 of her particulars, which were not dealt with at all by the primary judge. They are not questions of a kind that can, or should, be dealt with by a Full Court on appeal, dealing only with the written record. Further, if those questions were to be answered in the appellant’s favour, there would have to be a determination of the amount of compensation appropriate for the discrimination she suffered. This would not be an appropriate task for a Full Court dealing with an appeal. It is necessary to remit the matter to another judge, limited to the determination of the question whether the respondents or any of them discriminated against the appellant on the ground of her imputed disability, in contravention of ss 5(1), 6 and 22(2) of the Disability Discrimination Act. If the answer to that question should be yes, the judge to whom the case is remitted should then proceed to deal with the question of compensation.

THE OTHER GROUNDS OF APPEAL

31 As was indicated by the Court, in declining to hear from counsel for the respondents in relation to the other grounds of appeal that the appellant sought to raise in her amended notice of appeal, there is no substance in those other grounds. Although the primary judge had obligations to assist the appellant as an unrepresented litigant, he did not have an obligation to ascertain whether she had claims other than those she had actually advanced and wished to pursue them. Although there were references in the material to the offer to refund the fees that the appellant had paid to UTAS, his Honour was not obliged to treat the case as raising a claim in debt or contract in respect of those fees. Although the primary judge took a risk in bringing about the termination of the appellant’s cross-examination of Dr Garnham, the appellant cannot succeed in relation to this because, on the appeal, she was unable to point to any matter that she could have put to Dr Garnham if she had had further opportunity to cross-examine him.

CONCLUSION

32 For the foregoing reasons, leave should be granted to the appellant to amend her notice of appeal in terms of ground 1 of the amended notice of appeal she submitted. The appeal should be allowed. The order of the primary judge dismissing the appellant’s application with costs should be set aside. The proceeding should be remitted to another judge of the Court to be heard and determined, but limited to the issues outlined in [30] above. The respondents should be ordered to pay the appellant’s costs of the appeal.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 23 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	TAD 16 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

YUEHUA ZHANG Appellant

AND:	UNIVERSITY OF TASMANIA First Respondent DALLAS HANSON Second Respondent JIM GARHAM Third Respondent PHILLIPA ORMANDY Fourth Respondent CAREY DENHOLM Fifth Respondent JULIAN YAXLEY Sixth Respondent KYLIE SHANAHAN Seventh Respondent

JUDGES:	GRAY, JESSUP & GORDON JJ
DATE:	23 MARCH 2009
PLACE:	MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

JESSUP AND GORDON JJ

INTRODUCTION

33 This is an appeal against an order dismissing the Appellant’s application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"): Zhang v University of Tasmania [2008] FCA 516.

34 From late September 1998 until October 1999, the Appellant attended the First Respondent ("UTAS") as an overseas PhD candidate in the School of Management. During that period, the Appellant alleged that she was discriminated against by the Respondents "because of an (imputed) disability and her race and sex" contrary to s 22 of the Disability Discrimination Act 1992 (Cth) ("the DDA"), s 15(1) of the Racial Discrimination Act 1975 (Cth) and s 14(2) of the Sex Discrimination Act 1984 (Cth).

35 Before the primary judge, the Appellant (who was self-represented) particularised her complaint as follows:

1. Failing to provide me with the Overseas Postgraduate Research Scholarship ("OPRS Scholarship") that I had won in 1998.

2. Paying me only $67.39 for the first hour and $44.93 for repeated hours of tutorial work whilst the School of Management of [UTAS] paid about $90 per hour to the other tutors. My supervisor, Dr Dallas Hanson, told me that "if you argue about payment you cannot be anybody’s PhD candidate. I had a Chinese PhD candidate in the past, who argued about payment. Then he/she left."

3. Falsely suspecting that I was in financial problem or had no money because of my Chinese origin.

4. Treating me less favourably by:

• not conducting annual review for my academic progress;

• not submitting my paper to the 1999 ANZAM Conference hosted by the UTAS;

• advising me that the Faculty of Commerce & Law had "no scholarship" even though the information indicated that the scholarship was available at the time;

• breaching my confidential information by obtaining a letter from UTAS counseling [sic] services without my permission.

5. Imputing that I had potentially suffered "serious psychological problem" [sic], then referring me to UTAS Counseling [sic] Service and treating me as if I had such a disability.

6. Terminating my PhD candidature in Oct. 1999.

36 The primary judge dismissed the application with costs. His Honour found that three of the complaints (grounds 1, 4 and 6) did not on their face raise any allegation of discrimination of the grounds of disability, race or sex and that, in any event, there was no factual basis for any of the Appellant’s complaints: at [3]. This appeal followed.

37 On appeal, the Appellant originally raised two points of error. However, each of these was abandoned in favour of five new grounds in a proposed amended notice of appeal which the Appellant sought leave to file pursuant to O 52 r 21(3) of the Federal Court Rules. The Respondents consented to the amendment of ground 1 of the notice to read:

The learned primary judge erred in finding that the respondents’ conduct did not constitute unlawful discrimination against the appellant in contravention of s 22 of the Disability Discrimination Act 1992 (Cth).

38 The Respondents did not oppose the deletion of the existing ground 2 but opposed the Appellant being granted leave to amend the notice of appeal to raise any additional grounds of appeal. The primary overall purpose of the additional amendments sought was to agitate, for the first time, a claim in contract which was not made below, but which was said to be available on the facts. The content of the contract alleged was that UTAS had offered to refund tuition fees to the Appellant if she left the university (which, eventually, she did). More specifically, the proposed additional grounds were in substance that the primary judge: (1) erred by finding that only the unlawful discrimination claims were justiciable (ground 2); (2) erred by failing to determine all of the Appellant’s claims, including a claim in contract for the refund of her tuition fees that was presented by the material before his Honour although not pleaded as such (ground 3); (3) denied the Appellant procedural fairness by not providing the Appellant as a self-represented litigant with the necessary assistance to ensure that she could claim all rights and put all arguments available to her (ground 4); and (4) abused his discretion in terminating the Appellant’s cross-examination of the Third Respondent (ground 5). We would not grant the Appellant leave to raise the proposed amended grounds of appeal numbered 2, 3, 4 and 5. Each of the claims is futile.

39 Grounds 2 and 3, which were argued together, are bound to fail. The rule is that a party is bound by the conduct of their case at trial and cannot raise a point for the first time on appeal where it was not taken below: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7ff (‘Coulton’) citing University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, 71; see also Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497ff. The exception to this rule is where the proposed ground of appeal raises a question of law upon facts either admitted or proved beyond controversy so as to make it expedient in the interests of justice that the point should be argued and decided: Coulton at 8 citing Mason J in O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319. Here, however, even assuming that there was material in the court below such as to squarely suggest the possible existence of a contract or other claim aside from discrimination, evidence could have been given which by any possibility could have prevented the point from succeeding. For example, the Appellant relied on a letter of offer from UTAS proposing to refund her tuition fees if she transferred to another university; however, no evidence was led as to whether she ever accepted that offer. The Respondents argued that had they known that the Appellant was making a claim in contract, they would have sought to lead evidence showing that rather than accepting the purported offer, the Appellant instead made a counteroffer which UTAS never accepted. In light of the potential prejudice to the Respondents and the fact that it does not raise a question of law dependent upon uncontroverted facts, the contract point cannot now be taken: Coulton at 7–8.

40 Similarly, ground 4 is hopeless. While a judge may be bound to provide advice and assistance to an unrepresented litigant, there are two important qualifications to that general statement. First, the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation and, secondly, the "boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial": Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 445–7. In the present case, the Appellant’s only complaint was that the primary judge failed to render assistance to the Appellant to formalise a claim for refund of fees. That contention is bound to fail for at least two reasons. First, the Appellant claimed refund of her fees only as part of her interlocutory relief in her originating process and, secondly, for the same reasons that proposed grounds 2 and 3 are bound to fail. Ground 5 is also futile because the Appellant made no submission, nor proffered any evidence to show what additional questions she would have asked on cross-examination had she had more time. In other words, there was nothing to impugn the finding made by the judge that she had had ample opportunity to cross-examine and that the cross-examination had become repetitious.

41 Accordingly, the only point that falls for consideration upon this appeal is ground 6 in the application before the primary judge, which is pursued in this Court as ground 1 -- the contention that UTAS constructively terminated the Appellant’s candidature on the basis of an imputed psychological disability and that by that conduct, UTAS discriminated against the Appellant in contravention of the DDA. For the reasons that follow, that ground cannot be made out and the appeal must therefore be dismissed with costs.

FACTS

42 The primary judge provided a brief chronology of the Appellant’s attendance at UTAS at [4] to [10]. Additional facts relevant to each ground of complaint were addressed separately; the Overseas Postgraduate Research Scholarship at [6] and [11] to [19] (ground 1 in the original application), the tuition fees at [23] and [24] (ground 2), the false suspicion of financial problems because of the Appellant’s Chinese origin at [25] and [26] (ground 3), less favourable treatment at [28] to [43] (ground 4) and imputing "serious psychological problem" at [44] to [50] (ground 5).

43 For present purposes, it is sufficient to identify those facts relevant to the contention that UTAS terminated the Appellant’s candidature.

44 In September 1999, an Annual Review of the Appellant’s progress was undertaken. The Appellant’s research topic was "A model for the establishment of Science Parks in Developing Nations in South-East Asia". Initially, her supervisor, Dr Dallas Hanson, concluded that the Appellant’s "progress [had] been generally satisfactory" but that certain matters required attention. The matters specified were "Building of expertise in research methods and work on fluency and accuracy in written english". The report was signed by Dr Hanson and the Appellant on 8 September 1999. The report was then sent to the Head of School for his review and certification.

45 On 6 October 1999, and before the Head of School certified the Appellant’s report in that form, Dr Hanson forwarded a memorandum to Dr Jim Garnham (who has been occasionally misspelt in the original proceeding and in the appeal as ‘Garham’), the Acting Head of the School of Management in which he stated:

I wish to highlight concerns about the well being of [the Appellant]. [The Appellant] has provided evidence of potentially serious psychological problems and is also finding considerable difficulty in adapting to the social demands of life as a post-graduate student in this University. In partial evidence of these problems I attach a copy of a letter recently sent by [the Appellant] to Professor Peter Dowling and (separately) to me.

I lack the formal training in psychology and counselling essential in supervision of such a student and am therefore unable to continue in the role of supervisor to [the Appellant]. To continue would not be in her best interests. I also recommend that we urgently seek professional counselling for [the Appellant].

46 The letter referred to was not in evidence. However, the next day, 7 October 1999, Dr Garnham sent a memorandum to Associate Professor Carey Denholm, Dean of Graduate Studies, attaching a copy of the 1999 Annual Review of Progress which had been signed by the Appellant and her supervisor Dr Hanson. The memorandum stated that "a number of events [had] been drawn to [his] attention by her supervisor and others that confirm a pattern of behaviour which require[d him] to change the recommendation" and now to "recommend the termination of the [Appellant’s] candidature under Rule 70.13" of the UTAS Research Higher Degrees Handbook 1999 ("RHDH"). The memorandum went on to provide:

Her supervisor has indicated that he is unable to continue in that capacity and the School does not have the required skills and capacity to provide alternative supervision. This advice is provided after consultation with senior colleagues within the school who support this recommendation. I must point out that the School has endeavoured to support [the Appellant] in every way possible and made it possible for her to participate in OECD Conference and in the STEP program for doctoral candidates at some considerable expense to the school.

The level of disputation that has occurred both within the School and the University in relation to the question of a scholarship and sessional teaching have [sic] raised serious concerns and support the recommended action.

47 The 1999 Annual Review of Progress now provided that "the performance of the candidate [had] been unsatisfactory" and, by reference to the above memorandum, recommended termination of the candidature under rule 70.13 of the RHDH. Rule 70.13, entitled "Termination of candidature," provided in relevant part:

The Chair may terminate candidature –

...

(b) if the supervisor and the Head of School report to the Chair that the performance of the candidate is unsatisfactory and recommend that the candidature be terminated.

48 At the relevant time, UTAS also published a "Code of Conduct in Supervision" which extended to supervision of candidates for higher degrees. Clause 1.4 of that Code provided that the supervision "involves concern and a measure of pastoral care for the candidate". The evidence of Associate Professor Denholm was that as Dean he had responsibility to ensure appropriate levels of pastoral care were provided and had a responsibility to supervisors and heads of schools to provide advice about the behaviour of candidates. As part of that role, Associate Professor Denholm offered candidates an opportunity to raise with him any matter about which they might be concerned and, at the conclusion of any meeting, might refer them for counselling.

49 On 12 October 1999, Associate Professor Denholm sent an email to the Appellant advising her he had received correspondence from the Head of School recommending that her candidature be terminated. The email went on to state that as required by Rule 70.13.2 of the RHDH, he was required to conduct a preliminary investigation of her candidature and, in order to do so, was required to meet with the Head of School, her supervisor and with her.

50 Subsequently, on 14 October 1999, a meeting between Associate Professor Denholm, Mrs Margaret Beasley, the Head of Student Counselling, Ms Phillipa Ormandy, the Executive Officer of the Pro-Vice Chancellor (Research) and the Appellant was held. As part of UTAS’s pastoral care, Mrs Beasley was present to assist the Appellant to talk through some issues. At the end of the meeting, the Appellant agreed to meet with Mrs Beasley independently for assistance as she was very upset.

51 The behaviour of the Appellant in the present case included several occasions where the Appellant raised her voice at Dr Hanson and that, in one meeting between Associate Professor Denholm and the Appellant which lasted for at least an hour, "she became angry", "slammed paper down on the table in front" of him and was tearful and very upset.

52 At the conclusion of the preliminary investigation, Associate Professor Denholm wrote to the Appellant on 8 November 1999 outlining the history of the matter and the steps taken by him during the course of the preliminary investigation. The letter concluded:

As the Head of School has indicated that the School can no longer offer supervision under same conditions as before; and under clause 7.1 and 7.2 of Rule 70, candidature must be conducted under a supervisor, I outline two options below for you to consider if you wish to continue your studies.

1. Continue your studies within the School of Management, under a set of strict conditions; (attached A) which given the extent of the relationship breakdown between you and the School, may not be feasible.

2. Transfer your candidature to another Australian University capable of offering supervision in your field. NB: (Should you decide to transfer your candidature, [UTAS] would refund the fees you have paid to date). Please see suggestions under B.

I am required to inform you that under clause 13.3 (Rule 70) you have 14 days after receiving this notification to provide written comments to me about this recommendation.

53 Part B of the attachment specified Wollongong and Deakin as Australian universities with capacity and expertise in the Appellant’s area. Part A specified the Conditions in the following terms:

1. Refrain from any further correspondence or discussion regarding the matter of your unsuccessful OPRS with University staff members.

2. Abide by all University and school regulations relating to procedures for higher degree candidature and use of university facilities (in particular with reference to copyright laws.)

3. Provide any draft research writing (including thesis work) in a clear, proof read form.

4. Limit contact and meetings with your supervisor to one half hour session a week (Thursdays 3.30-4.00 or some other mutually convenient time).

5. Refrain from dealing directly with School staff on matters concerning tutorial employment, dealing only with the Head of School.

54 On 13 December 1999, the Appellant responded in writing. After stating she disagreed with "many of the points raised" in the 8 November 1999 letter, she went on to say that "in view of [the] authoritative and final requirements", she felt that UTAS gave her no option other than to continue her PhD elsewhere and that she had decided to seek a transfer to another university. The following year, the Appellant transferred to Wollongong, being one of the universities suggested in the 8 November letter.

LEGISLATION

55 Any consideration of the issues raised on appeal must start with the legislation. The objects of the DDA are set out in s 3 and include:

(a)  to eliminate, as far as possible, discrimination against persons on the ground of disability ... :

(b)  to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and

(c)  to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

56 Section 22 of the DDA, headed "Education," provides, so far as is relevant that:

(2)  It is unlawful for an educational authority to discriminate against a student on the ground of the student’s disability ... :

(a)  by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority; or

(b)  by expelling the student; or

(c)  by subjecting the student to any other detriment.

(Emphasis added.)

57 "Educational authority" is defined in s 4 of the DDA as a body or person administering an "educational institution". "Educational institution" is defined in s 4 as including a university. "Disability" is defined in s 4 of the DDA as a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour and includes a disability that presently exists (sub-s (h)) or is imputed to a person (sub-s (k)).

58 Finally, "discrimination" is defined in s 5:

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

(2)  For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

(Emphasis added.)

ANALYSIS

59 There was no dispute that a claim of unlawful discrimination in contravention of the DDA requires the Appellant to establish:

1. she suffered from a disability within the meaning of s 4 of the DDA;

2. an educational authority discriminated against her;

3. on the basis of her disability;

4. by expelling the Appellant or subjecting her to any other detriment.

60 In relation to the second and fourth elements, UTAS will be found to have discriminated against the Appellant on the ground of a disability of the Appellant if, because of the Appellant’s disability, UTAS treated or proposed to treat the Appellant less favourably than, in circumstances that were the same or were not materially different, UTAS treated or would have treated a person without the disability: s 5.

61 In the present case, the Appellant submitted that the first element of her DDA claim (disability) was made out by Dr Hanson’s suggestion in his 6 October 1999 memorandum that she suffered from potentially serious psychological problems and Professor Denholm’s recommendation that she seek counselling from Mrs Beasley, which gave rise to in effect an imputation that she suffered from a psychological problem or disorder. The alleged differential treatment was said to arise from UTAS’s letter of 8 November 1999 (see above [52]–[53]) which the Appellant alleged constituted "constructive termination" of the Appellant’s PhD candidature. That constructive termination was said to discriminate against the Appellant because UTAS treated her less favourably than UTAS would, in the same or similar circumstances, treat a person without the Appellant’s disability. In other words, the Appellant contended that UTAS would not have sent a letter in the terms of the 8 November 1999 letter to a person without the Appellant’s imputed psychological disability.

62 On the other hand, UTAS had responsibilities to the staff and to the Appellant. In evaluating the conduct of UTAS, these responsibilities cannot be ignored. Professor Denholm’s sworn evidence was that he proposed the conditions because he was trying to find a way for the Appellant to continue her studies at UTAS if that was what she wanted. Professor Denholm considered that the ongoing disputation by the Appellant about the issues addressed by those conditions would make it almost impossible for the Appellant to continue her studies within UTAS and he was trying to prevent that from happening. In other words, the Respondents contended, and the trial judge accepted (Zhang v University of Tasmania [2008] FCA 516, [50]) that the conduct complained of should not be found to constitute an imputation of a psychological disability because it was undertaken with beneficent intent.

63 In the circumstances of this case, however, we do not think it is necessary to resolve either this issue or the issue of whether the 8 November letter amounted to constructive termination of the Appellant’s PhD candidature. Instead, assuming without deciding that:

1. the suggestion that the Appellant attend counselling and that she suffered from "potentially serious psychological problems" constituted an imputation of a psychological disorder within the meaning of the DDA (contrary to the finding of the trial judge: Zhang v University of Tasmania [2008] FCA 516, [44]–[50]); and

2. the letter of 8 November 1999 amounted to the subjection of the Appellant to ‘any other detriment’ within the meaning of s 22(2)(c) of the DDA because it provided no meaningful alternative for her to continue her studies at UTAS, whether or not the letter constituted ‘constructive termination’ of her PhD candidature (again contrary to the finding of the trial judge: Zhang v University of Tasmania [2008] FCA 516, [3], [51]);

the Appellant’s discrimination claim would still fail because it cannot be said that UTAS would have treated a person without the Appellant’s "disability" any differently. The reason is that the relevant comparator is a person displaying the same behaviour as the Appellant but without the disability, not a person without the disability and without the behaviour.

64 This was in effect the decision of the majority of the High Court in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 97–103 (Gleeson CJ), 152–62 (Gummow, Hayne and Heydon JJ), 174–5 (Callinan J). Of significance to the present case is the manner in which five members of the High Court construed the DDA and, in particular, s 5 of the DDA as directing attention to the same circumstances involving the same conduct on the part of another person who is not manifesting that behaviour as a result of a disorder: at 100 (Gleeson CJ), 161 (Gummow, Hayne and Heydon JJ), 174–5 (Callinan J). To adapt the language of Gleeson CJ at 100, "[t]he required comparison is with a [candidate] without the disability, not a [candidate] without the [behaviour]." That assessment "requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken": Purvis at 99. As McHugh and Kirby JJ recognised (in dissent), everything turns upon identification of the relevant comparator; once it is accepted that "the appropriate comparator is not a student with behavioural problems, the case becomes a simple one": Purvis at 136. Needless to say, that statement holds just as true if the comparator is a student with behavioural problems. Rightly or wrongly, a clear majority of the High Court has now held, contrary to McHugh and Kirby JJ, that the appropriate comparator is another student with behavioural problems; it is not now open to the Appellant to reagitate that proposition in this Court.

65 Returning to the present case, it now remains only to apply the decision in Purvis to the facts. In the present case, one approaches the question of the alleged discrimination by asking if another PhD candidate had behaved in the same manner as the Appellant, the Appellant’s treatment by UTAS was less favourable than the treatment the other PhD candidate would have received and if so, was that less favourable treatment because of (or on the ground of) the Appellant’s disability? The answer to each question is no.

66 The first step is to consider the behaviour in question. It was not challenged below or on appeal that the Appellant’s behaviour (eg slamming papers, crying, shouting, and arguing) was considered by UTAS to be disruptive. For example, Dr Hanson gave evidence that the Appellant was "antagonising everyone she came into contact with at [UTAS], not just University academic or administrative staff but student association people as well": Zhang v University of Tasmania [2008] FCA 516, [45]. Not only did the trial judge accept Dr Hanson’s evidence, he noted: "Having seen [the Appellant] giving evidence, Dr Hanson’s assessment does not come as a surprise to me. Ms Ormandy gave evidence that at a student function [the Appellant] was upset and distressed and threw a plate of food at her": Zhang v University of Tasmania [2008] FCA 516, [46]. The relevant comparator is therefore another PhD candidate manifesting disruptive behaviour to the extent that there was a worsening of relations between her and other university members generally and eventually a breakdown of relations with her supervisor.

67 The next step is whether the treatment of her by UTAS in consequence of that behaviour -- namely, the imposition of conditions on her continued study and ultimately the constructive termination of her candidature -- was less favourable than would have been given to others who acted disruptively in the same way but did not have a psychological disability. Regrettably, there was a paucity of evidence in this regard. Ideally, evidence ought to have been led, if available, of things such as: (1) what had happened in other cases where students (preferably graduate students) had manifested similar disruptive behaviour; and (2) UTAS policies for the handling of disruptive students and cases involving the breakdown of relations between student and faculty, especially the student’s supervisor. On the latter point, there was evidence that the RHDH did make provision for the change of supervisory arrangements due to a clash of personalities, but unfortunately, no attempt was made to tender the relevant sections either in the trial court or on appeal.

68 In the absence of such evidence, the Court is left only with evidence of the relevant university personnel to the effect that they would have done the same thing with any other student in the same circumstances. It may be accepted that this evidence was less than wholly satisfactory. However, although the Appellant challenged UTAS’s evidence as both self-serving and non-specific, the fact remains that it was not impeached by her either in cross-examination or by positive evidence of her own. In short, there is no suggestion in any of the evidence to support an allegation that UTAS would in fact have treated another disruptive graduate student more favourably than the Appellant. Accordingly, it cannot be said in the circumstances that the trial judge was plainly wrong (and here it must be acknowledged the deference that is due to the trial judge in matters of fact, particularly where his Honour had the benefit of seeing the Appellant give evidence viva voce and assessing her demeanour, as noted: Warren v Coombes [1979] HCA 9; (1978) 142 CLR 531, 551; Annand & Thompson Pty Ltd v Trade Practices Commission [1979] FCA 36; (1979) 25 ALR 91, 97, 110; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479–83; SS Hontestroom v SS Sagaporack [1927] AC 37, 47) in accepting UTAS’s evidence, which his Honour did implicitly in finding that there was no factual basis for a finding of discrimination: Zhang v University of Tasmania [2008] FCA 516, [3], [52].

69 The answer to the next question -- whether the treatment received by the Appellant was on account of her imputed psychological problems -- follows from the first. If the Appellant was treated no more or less favourably than would have been another student manifesting the same or similar behaviour but without the disability then there is no relevant treatment which can be said to have been caused by the imputed disability.

70 For the foregoing reasons, the learned primary judge, in our view, did not err in finding that the Respondents’ conduct did not constitute unlawful discrimination against the Appellant in contravention of s 22 of the DDA. Accordingly, we would dismiss the appeal with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup & Gordon.

Associate:

Dated: 23 March 2009

Counsel for the Appellant:	Mr T Mitchell
Solicitor for the Appellant:	FitzGerald and Browne
Counsel for the Respondents:	Mr P Hanks QC
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	24 November 2008
Date of Judgment:	23 March 2009