Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128
• Hearing dates: 23, 24 and 26 April 2012 Written submissions closed 7 June 2012
• Decision date: 03 July 2012
• Jurisdiction: Equal Opportunity Division
• Before: R J Wright SC, Judicial Member; A Lowe, Non-Judicial Member; Dr J Schneeweiss, AM, Non-Judicial Member

Decision

The Tribunal orders that:

1.the Applicant's Complaint be dismissed in whole.

2.the Applicant pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.

• Catchwords: EQUAL OPPORTUNITY - Discrimination - Discrimination on the ground of disability - Indirect discrimination
• Legislation Cited: Anti Discrimination Act 1977 (NSW); Administrative Decisions Tribunal Act 1997 (NSW); Education Act 1990 (NSW); Disability Discrimination Act 1992 (Cth); Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (Vic)
• Cases Cited: Wong v Board of Studies New South Wales HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/2010/274.html"[2010] NSWADT 274; Park v Commissioner of Police [2000] ADTAP 4; Commissioner for Children & Young People v FZ [2011] NSWCA 111; Purvis v New South Wales (2003) 217 CLR 92; Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744; IW v City of Perth (1997) 191 CLR 1; New South Wales v Amery (2006) 230 CLR 174; Hurst v State of Queensland (2006) 151 FCR 562; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78; Waters v Public Transport Corporation (1991) 173 CLR 349; Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251; Gardiner v WorkCover Authority of New South Wales [2004] NSWADTAP 1; Amery v State of New South Wales [2004] NSWCA 404; KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8; AT v Commissioner of Police [2010] NSWCA 131
• Category: Principal judgment
• Parties: Sarah Hui Xin Wong (Applicant); Office of the Board of Studies (Respondent)
• Representation: Counsel; C Ronalds SC and S Talbert (Respondent); S Wong (Applicant in person)
• File Number(s): 101107

REASONS FOR DECISION

1 EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, A Lowe - Non Judicial Member, Dr J Schneeweiss - Non Judicial Member): The Tribunal has before it a complaint by the Applicant, Ms Wong, that the Respondent, the Office of the Board of Studies of New South Wales, unlawfully discriminated against her on the ground of disability under s 49M of the Anti-Discrimination Act 1977 (NSW) (the ADA) relying in particular on indirect discrimination as described in s 49B(1)(b) of the ADA.

2 Ms Wong's complaint involves two claims. The first is a claim that the Respondent indirectly discriminated against her by failing adequately to accommodate Ms Wong's joint hyper mobility of the wrist and hand during her Higher School Certificate English Advanced and Modern History examinations in 2008. The second claim relates to indirect discrimination by the Respondent concerning the rejection of her Illness/Misadventure appeal because her HSC examination marks were higher than her school assessment marks in English Advanced and Modern History.

The Complaint

3 On 20 January 2010, Mrs Eileen Wong, acting on behalf of her daughter Ms Wong, lodged a complaint with the President of the Anti Discrimination Board of New South Wales (the ADB) concerning the two claims of discrimination. Mrs Eileen Wong was expressly authorised by the Applicant to make the complaint on her behalf.

4 On 24 March 2010, the ADB notified the Respondent of the complaint and sought a written response to the allegations. The Respondent provided its response on 3 May 2010. In its response, the Respondent denied that it had discriminated against Ms Wong.

5 On 28 May 2010, the ADB received additional information from Ms Wong.

6 By letter dated 30 August 2010, the President of the ADB informed Ms Wong that he had decided to decline her complaint under s92(1) of the ADA on the basis that he was satisfied that it was lacking in substance.

7 In that letter, the President stated that the reasons for his decision were:

"- Information provided by the parties establishes that the Respondent did not refuse the Complainant a service.

The Board of Studies NSW accepted, considered and processed all of Ms Sarah Wong's special examination provisions applications and appeals.

The Board of Studies NSW subsequently accepted, considered and processed Ms Sarah Wong's application for misadventure.

- While the Complainant may be unhappy with the Respondent's decision, special examination provision was granted and evidence provided support that it was done so in accordance with the Board of Studies' criteria.

- The Respondent has provided reasonable information that is supported by evidence that its illness/misadventure provisions only allow for adjustment to an applicant's examination mark if their school assessment marks are higher. This was not the case in the Complainant's situation and information provided by the Complainant supports that the Wong family were aware of the rules and procedures under these provisions."

8 By letter dated 24 September 2010, Mrs Wong, on behalf of her daughter, required the President to refer the complaint to the Tribunal. Such a referral takes place under s 93A of the ADA which provides:

"(1) If the President has given a complainant a notice under s 87B(4), 91(4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal.

(2) On receipt of a notice under ss(1) from the complainant, the President is to refer the complaint to the Tribunal."

9 Under s96(1) of the ADA, however, leave of the Tribunal was required to proceed in a case such as the present. Section 96(1) provides:

"A complaint that is referred to the Tribunal on the requirement of a complainant under s 93A(1) but not including a complaint to which s 91(2) applies [this subsection has no application in the present case] may not be the subject of proceedings before the Tribunal without the leave of the Tribunal."

10 The President of the ADB accordingly referred the matter to the Tribunal and the President's Summary of Complaint was filed in the Tribunal on 30 September 2010. Under s 95(3) of the ADA, a referral under s 93A is taken to be an application for an original decisions within the meaning of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act). The period of complaint was noted in the President's Summary as being from 1 September 2008 to 31 July 2009.

11 The application for leave to proceed in the Tribunal was heard on 9 November 2010 by the Deputy President of the Tribunal and leave was granted on 16 November 2010 (see Wong v Office of the Board of Studies NSW [2010] NSWADT 274). In accordance with the Tribunal's directions, points of claim and points of defence were filed by the parties.

12 There were a number of interlocutory applications and the final hearing of the matter scheduled for 20, 21 and 22 February 2012 was adjourned. This adjournment is the subject of an application for costs by the Respondent which will be dealt with later in these reasons. In the course of dealing with an application for the issue of summonses, the Tribunal also made an order clarifying that the question of liability was to be determined separately from the question of relief, if any, to be granted. Eventually, the final, oral hearing in relation to liability took place on 23, 24 and 26 April 2012.

13 After the end of the oral hearing, Ms Wong applied for leave to file further written submissions in response to the Respondent's oral and written submissions made at the hearing. By amended directions dated 16 May 2012 the Tribunal directed:

"1. The Applicant have leave to file and serve by 28 May 2012 written submissions not exceeding 3000 words and limited to matters in reply to the oral submissions of the Respondent made on 26 April 2012 and the written submissions handed up on that day (including submissions as to costs).

2. The Respondent have leave to file and serve by 7 June 2012 written submissions not exceeding 3000 words and limited to matters in reply to the written submissions to be filed by the Applicant under order 1."

14 By letter dated 27 May 2012, Ms Wong sought leave to reply in more than 3000 words. The Tribunal notes that Ms Wong, a litigant in person, (although she was represented by a solicitor on the occasion when the final hearing of the matter was adjourned in February 2012) has already been given numerous opportunities to put her case orally and in writing. Ms Wong took up those opportunities prior to and during the hearing in April 2012. Ms Wong's submissions received by the Tribunal on 28 May 2012 appear to the Tribunal to extend well over 3,000 words. In all the circumstances and having regard to the history of this matter, the Tribunal would normally be minded to reject Ms Wong's further written submissions of excessive length. Those submissions, however, are not in a form which allowed the Tribunal to have regard to the first 3,000 words and disregard the remainder. The Tribunal has reviewed and considered the whole of the document and believes that it would make no difference to its decision if it received the excessive parts of the submissions or not (however the excessive part was determined). Accordingly, in order to regularise the position the Tribunal reluctantly grants leave to the Applicant to rely upon written submissions received on 28 May 2012 to the extent that they exceed 3,000 words.

The Evidence

15 At that hearing, the President's Summary of Complaint was admitted into evidence. In addition, Ms Wong relied upon her own sworn statement of 20 December 2011 and three sworn statements of her mother, Mrs Eileen Wong, dated 20 December 2011, 11 April 2012 (headed 'My Response to McCaslin's Statement and Other Related Information Regarding my Phone Conversation with the Respondent's Officers') and 11 April 2012 (headed 'Comments on Mr Ford's Statement'). Ms Wong also put before the Tribunal two bundles of documents which were referred to in the sworn statements and two student answers taken from a publication of the Respondent which were actual examination answers to questions in the 2003 HSC that received high or mid range marks in English paper 1.

16 With the concurrence of the Tribunal and by agreement between the parties, objections to the Applicant's evidence were dealt with in the following manner. Rather than have the Tribunal consider each objection individually, the Respondent handed up two tables of objections which dealt with all of the Applicant's evidence.

17 In relation to the objections to the documents contained in the two bundles of documents relied upon by the Applicant, the Applicant provided an explanatory table setting out, among other things, the asserted relevance of each document.

18 It was then proposed that if the Tribunal, when considering the evidence and making its findings, found it necessary to rely on a portion of the written evidence or documents objected to, it should consider the Respondent's objection and any relevant material put forward by the Applicant, and rule on the objection in the course of making its findings.

19 The Tribunal acceded to this proposal having regard to the fact that the overwhelming majority of the objections were based on relevance and most of the other grounds of objections raised were that the material was speculation, opinion or submission. In addition, the Tribunal took into account that, although it is not bound by the rules of evidence and it may enquire into and inform itself on any matter in such manner as its thinks fit under s73(2) of the ADT Act, it was still required under that section to apply the rules of natural justice.

20 Section 73(2) was the subject of comment in the Court of Appeal in Commissioner for Children & Young People v FZ [2011] NSWCA 111, where Young JA said at [63]:

"This sort of provision is not unusual in administrative law and in cases involving child protection. Its scope was analysed by Hodgson J (as his Honour then was) in Roberts v Balancio (1987) 8 NSWLR 436 where he said that the provision gave the Court a discretion to act on material which is rationally probative, but the Court must determine in all the circumstances whether it is proper to act on such material and must act fairly towards the parties."

21 Accordingly, notwithstanding that s73(3) of the ADT Act requires the Tribunal to act 'without regard to technicalities or legal forms', the Tribunal can only act on material which is rationally probative and which the parties have had a fair opportunity to address. On these bases, the Tribunal will, where necessary, rule on the admissibility of material that has been objected to, in the course of these reasons for decision.

22 Both the Applicant, Ms Wong, and her mother, Mrs Eileen Wong, were crossed examined. The Tribunal formed the view that both Ms Wong and her mother were highly intelligent women who were doing their best to tell the truth as they perceived it. Although Mrs Wong was keen to argue her daughter's case, she did manage generally to restrain herself and focus on answering the questions she was asked. We accept their evidence and note that the only areas of substantial conflict in the evidence (as opposed to material which is more appropriately treated as submission or emotional reactions) appear to relate to recollections of conversations between Mrs Wong and officers of the Respondent. In the case of these conversations, the Tribunal finds that both Mrs Wong and the officers were trying to give honest, truthful evidence and any differences were the result of differing perspectives and recollections. If any need to resolve such conflicts arises, it will be addressed specifically in these reasons.

23 The Respondent's written evidence consisted of a statement of a Consultant Paediatrician who, in accordance with the Tribunal's previous ruling, will be referred to in these reasons for judgment as Dr D. Dr D is one of four medical consultants to the Respondent's Special Provisions Panel and has held this position for over 20 years. The Respondent also relied upon the statements of Ms Yates, who from the early 1990's to 2010 was a member of the Special Provisions Panel, and Ms McCaslin, who between August 2008 and August 2009 was employed as a Project Officer, Student Examination Support, Student Support Services with the Respondent. Finally, the Respondent relied upon the statement of Mr Ford, who at the relevant times was the Head or Manager, Student Support Services of the Respondent.

24 In addition, the Respondent put in evidence two documents, one relating to Ms Wong and the other to her sister, Ms Katherine Wong's, application for special provisions for the 2006 Higher School Certificate examination.

25 Each of Dr D, Ms Yates, Ms McCaslin and Mr Ford was cross examined. Once again, the Tribunal formed the view that each of these witnesses was conscientiously attempting to tell the truth and was careful and considered in his or her answers. We accept their evidence. As has been noted above, if any conflict in the evidence requires resolution, the Tribunal will deal specifically with that in these reasons.

The Parties and Background

26 The Applicant, Ms Wong, was born in the latter half of 1990 and it was not in dispute that she was an academically outstanding student who had the ability to achieve at the highest levels in the Higher School Certificate examinations and assessments. From 2003 to 2008, Ms Wong completed Years 7 to 12 of her education at Abbotsleigh, a private girls school at Wahroonga.

27 The Respondent, the Office of the Board of Studies of New South Wales, is a government department that provides professional and administrative support to the Board of Studies of New South Wales. The Office of the Board of Studies is comprised of various directorates and branches, including the Student Support Services Branch.

28 The Board of Studies (the Board) is a statutory body, established under Part 9 of the Education Act 1990 (NSW), that serves government and non-government schools in New South Wales in the development of school education from Kindergarten to Year 12. One of the Board's functions is to manage the external examinations which form part of the assessment upon which the Higher School Certificate or HSC is awarded.

29 During 2007 and 2008, a student's HSC result for each subject attempted was (subject to a successful illness/misadventure appeal) made up as follows: 50% from the mark determined as a result of the student's school assessment ranking; and, 50% from the HSC examination mark (which was the student's raw mark in the examination scaled in accordance with the Respondent's procedures).

30 In order to determine a student's school assessment ranking, the student's school was required to conduct assessment tasks throughout the HSC year for each subject and the Board provided schools with advice concerning course components and weightings for assessment, and administrative guidelines as to the number of tasks, advance notice and dealing with atypical situations. The content, timing and marking of individual assessment tasks were, however, matters for the school. The Board had no provision for intervening in the marks awarded for a task, which was a professional judgment by the teachers involved. A student might appeal to the Board if their final mark or rank based on their school's assessment was affected because the school did not follow a Board policy.

31 The external examinations managed by the Board for most HSC subjects were timed, handwritten examinations conducted at the end of the course. The responses of the students who took these examinations were marked by markers engaged by the Board and not by the school.

Special Provisions and Related Matters

32 It is necessary here to say something about special provisions in relation to the HSC examinations.

33 As part of the functions of the Board of Studies in managing the HSC examinations, the Board may approve special provisions for a student with a special need or disability for the purposes of that student reading the examination questions and/or communicating his or her responses. The Board's Assessment Certification Examination Manual, December 2005 version (which the Tribunal understands was the version applicable to the 2008 HSC examinations), deals with the approval of special provisions in section 10 headed 'School Certificate and Higher School Certificate Special Examination Provisions'. Section 10 provides in part:

"10.1 Policy

The Board may approve special examination provisions for the ... higher school certificate examinations if a student has a special need that would, in a normal examination situation, prevent him or her from:

(a) reading the examination questions; and/or

(b) communicating his or her responses.

Principals have the authority to decide and implement special provisions for school-based assessment tasks including examinations.

10.2 Special Examination Provisions

Special examination provisions are granted to provide students who have special examination needs with practical support in the ... higher school certificate examination.

Regardless of the nature of the special need, the provisions granted will be solely determined by the implications of the student's functioning in an examination situation.

Provisions may include Braille papers, large print papers, use of a writer, use of a reader, extension of test time, rest breaks, use of a personal computer, establishment of a special test centre, exam supervision, individual supervision, permission to take medication and other provisions as judged appropriate.

10.3 Outside the Board's Guidelines

The Board will not compensate students for difficulties in undertaking a course and preparing for the ... higher school certificate examination.

Schools are responsible for any decisions made a school level to offer provisions to students with special needs in course work, assessment tasks and school tests. The Board can offer no guarantee that school-determined provisions will apply in the ... higher school certificate examinations, as each application is individually assessed to ensure consistency and equity.

...

Students for whom special provisions are approved may not be eligible for illness/misadventure consideration unless they experience a deterioration or variation their condition during the actual examination. Refer to Section 11 for procedures to be followed in the case of students affected by illness or misadventure during the ... higher school certificate examination.

10.4 Application Procedures

Applications for special examination provisions are to be submitted on the form sent to schools. Refer to the Office of the Board of Studies Events Timetable for the return date. [In 2008, the return or closing date was Friday 11 April 2008.]

During the test period, emergency applications may be made by telephoning the Student Examinations Unit at the Office of the Board of Studies. Written applications supported by documentary evidence should be made immediately thereafter.

It is recommended that students who's need for special examination conditions is known to school staff apply for special examination provisions during term 4 of ... Year 11. The Board will endeavour to consider applications for Year ... 11 students to enable students to practice the use of approved provisions.

Students are able to apply for special provisions during the first half of the year in which they sit the ... higher school certificate examinations. Schools should note the due date for applications as indicated in the Events Timetable. The late submission of special provisions applications may disadvantage the students.

Applications will be considered on their merits. Provisions made by schools during their own tests may not necessarily meet the Board's criteria for the ... higher school certificate examinations. Details of such provisions are requested on the application forms.

The decision on each application will be advised to the Principal, the student (via the Principal) and the presiding officer.

If a request for special examination provisions is declined, schools may appeal on behalf of the student(s). Appeals should be made within 14 days of receiving the Office of the Board of Studies decision letter.

10.5 Evidence

When an application is submitted, evidence must be included, indicating the precise nature of the special need and the consequent effect on examination performance.

A student with a special need may be affected in a variety of ways ...

The appendix to this section sets out some examples of difficulties in examinations. Possible special provisions and the types of evidence required in an application for special examination provision(s)."

34 The appendix referred to is found in Attachment 10.1 in a table headed 'Table of Special Examination Provisions'. Under the heading 'Medical Difficulties' the following appears:

Difficulty/Impairment in Examination	Some Possible Provisions	Minimal Documentation
Hand/arm Difficulty with writing Discomfort/pain prevents writing, or cast, etc reduced mobility. Excessive fatigue of hand.	Computer, writer, extra time to rest.	Current medical report. Two timed hand written essays One timed typed essay (if a PC is requested). Teacher comments.

35 A copy of the blank 2008 Special Examination Provisions Application Form was before the Tribunal. On the front page of that form in large type was the notation 'Closing Date: Friday 11 April 2008'. Some parts of the form were required to be completed for each application and some parts were only to be completed if a particular sort of need or disability was relied upon or if certain types of provisions were sought.

36 One part which was required to be completed for each application was found on page 4 of the application form and was headed 'Provisions Requested'. On this page, the applicant was required to tick a box next to the type of provision requested. There were 40 such types of provisions listed under various headings and at the end of that list, there was the following:

This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below.

Other Provisions

There followed a series of four boxes with spaces next to them which could be filled in with the additional types of provisions sought.

37 The types of provisions which were listed and which were most likely to be relevant to a writing difficulty were 'extra time' which referred to extra time in which to complete the examination, 'extra time to rest' (for fatigue, pain or anxiety or attention related conditions), 'separate supervision' (this would be appropriate where because of extra time to write or extra time to rest, the candidate would not be finishing the examination at the same time as students without special provisions) and 'writer' (based on a physical writing difficulty) which involved the provision of a writer to whom the student dictated his or her answers and this also included extra time to compensate for the dictation process.

38 Mr Ford gave evidence as to the nature of these types of provisions and the considerations that the Respondent typically took into account when deciding whether to grant them or not. Mr Ford's evidence was that extra time to write was only approved where the student's demonstrated writing speed, measured on two extended responses, fell below a certain threshold. That provision might for example increase the student's examination time by 2.5 minutes per half hour. The evidence was that the Board kept the threshold writing speed confidential and maintained strict guidelines around the relevant writing speeds, to avoid the possibility of students applying for special provisions and 'going slow' in order deliberately to produce a writing speed below the cut off. It can be appreciated that this could be a problem if the cut off became generally known or was disclosed to particular students.

39 Mr Ford also noted that the Respondent had received advice from its special provisions panel experts that approving extra time to write was counter intuitive for students with frequent or recurring hand pain. If a student experienced regular hand pain over three hours, then extending the pain experience to 3.75 hours was not an appropriate provision. Rather, the Board would seek to provide other assistance, such as extended rest breaks or provision of a writer.

40 Mr Ford also explained that extra time to rest (rest breaks) was considered an appropriate provision for many students who encountered an increase in hand pain when writing. The standard provision was noted to be 5 minutes per half hour of examination time. Thus, for the typical three hour examination, the student would be allowed 30 minutes of rest breaks, taken at times and durations of the student's choosing. Students would not be permitted to read or respond to the examination during rest breaks. Where the rate of 5 minutes per half hour was insufficient, that rate might be extended by the Board.

41 Where rest breaks were found to be insufficient in responding to the student's disability, then a writer might be approved. Mr Ford noted that some students could use rest breaks successfully in answering short answer or objective questions but writing extended responses caused recurring hand pain even after taking rest breaks. Writers would generally be chosen by the student's school and would typically be a Year 11 student. Where a writer was used, the student's examination time would be extended by 5 minutes per half hour to compensate for the dictation process. Mr Ford specifically said that students were encouraged to practice with their writer to develop teamwork and an understanding of the process.

42 Where a writer was approved just before the examinations (for example, in the case of a broken writing hand on the eve of the examination), then the Board might uphold an illness/misadventure appeal for the early examinations, while the dictation skill was being developed, if using the writer led to unanticipated difficulties for the student. In this regard, Mr Ford's evidence was that many students successfully negotiated examinations with a combination of rest breaks and a writer. They might write for themselves, with rest breaks during the earlier short questions, and then use a writer for the later extended responses. It was said that the Respondent endorses such an approach and the appropriate time extensions are applied by the examination supervisor.

43 An examination of the 40 listed types of special provision on page 4 of the Application form referred to above reveals that the provision of a computer is not one of the provisions listed, although there is nothing to prevent it being sought in the other provisions section at the end of the list.

44 Mr Ford gave evidence as to why a computer may be approved. He said that a computer would be approved only for those students who had demonstrated their inability to use any of the alternative provisions. This restrictive approach to the use of a computer to address writing disabilities was explained at some length. Access to a computer in an examination, it was said, substantially changed the nature of the student's response and introduced further considerations such as the following:

(a) While it is not simple to quantify the difference, there was evidence that typical typing speed was faster than typical hand writing speed, up to 50% faster.

(b) Placing a neat, formatted typed response before a marker might subconsciously affect the marker's perception of its academic worth, for better or worse. While it was possible to train and adjust for such a possibility, it was an outcome that Mr Ford said was better avoided unless there was evidence that a computer was the only effective way for the student to communicate his or her answers.

(c) In a small number of cases, students granted the use of a computer had engaged in malpractice during an examination by uploading and submitting a prepared answer from an unauthorised USB flash drive brought into the examination.

45 While Mr Ford acknowledged that supervisors should be vigilant against all forms of cheating, he said that the size and speed of such an activity made it difficult to detect or intercept.

46 From Mr Ford's oral evidence, it became clear that in dealing with writing difficulties the Board generally adopted a staged approach to the granting of special provision. First, provision by way of rest breaks would be granted. If that did not adequately address the problem, as a second stage, rest breaks and the alternative of using a writer would be allowed. Thirdly, if it was demonstrated that the combination of a writer and rest breaks did not meet the student's special need, then the use of a computer might be approved.

47 Consequently, a computer was approved as the 'provision of last resort'. In addition, however, Mr Ford noted that as with all provisions this was determined on a case by case basis and computers were often granted to students with conditions like autism spectrum disorder or cerebral palsy, where communication with a writer was not feasible. As a result, not all students had to pass through the 3 stage process before they would be granted use of a computer but any students granted such provision would have to be able to demonstrate that neither rest breaks nor the provision of a writer (or other similar provisions) would adequately address their particular disability.

48 It appears that a less restrictive approach to the availability of computer special provision had previously been in place but had been replaced by the approach referred to by Mr Ford at some time before about 2007/2008.

49 The availability of, and the process of applying for, special provisions and related matters were brought to the attention of students sitting for the HSC by the Respondent. At the commencement of their Year 12 studies, all HSC students sitting for the HSC examinations in 2008 were provided with a booklet called 'Rules and Procedures for 2008 Higher School Certificate Candidates', published in October 2007. A copy of this booklet was before the Tribunal. In that booklet, students were informed about special provisions in section 15 which stated:

15 Special Examination Provisions for Students with Special Needs

(i) If you have a special need that would, in a normal examination situation, prevent you from:

Reading the examination questions; and/or

Communicating responses,

the Board may approve special examination provisions.

(ii) Applications are due by early April, although your school may submit your application by the end of Year 11 so that you will receive a decision in early Year 12. Late applications will be considered if your special need first becomes known to you after this date. If you wish to apply for special examination provisions, you should ask your Principal, HSC advisor or school counsellor about lodging an application with the Board of Studies.

(iii) ...

(iv) Your application should contain recent evidence of your special need and, in some cases, examples of your work. You may need to organise any testing required early in the year, to ensure your application reaches the Board by the closing date. If applications do not contain sufficient evidence, the Board's decision may be delayed.

(v) Special examination provisions are not available:

As compensation for difficulties in undertaking a course and preparing for the examination;

For lack of familiarity with the English language.

...

50 That the booklet also dealt with illness/misadventure appeals in section 16 and assessment ranking appeals in section 22 in the following terms:

16 Illness/Misadventure Appeals

If you believe that your performance in the examination was diminished because of circumstances beyond your control, you can lodge an illness/misadventure appeal.

(1) You may appeal for a variation to your results if you were prevented from attending an examination or you consider that your performance was affected by illness or misadventure immediately before or during the examination. Appeal forms are available from the presiding officer or your Principal. Further details of appeals procedures are on the form and on the Illness/Misadventure Information Guide for Students sheet. It is your right and responsibility to lodge an appeal.

...

(iv) If you have been granted special examination provisions such as extra time, you are generally not eligible for illness/misadventure appeals unless you experience additional difficulties during the examination.

(v) If your appeal is upheld, you will be awarded the higher of your examination mark and your moderated assessment mark as your examination mark. Your Record of Achievement will indicate if the assessment mark is used.

...

22 Assessment Ranking Appeals

(i) After the final HSC examination, you can obtain your rank order for assessment in each course via Students Online or from your school. If you feel that your placement in any course is not correct, you should talk to your teacher and you may apply to your Principal for a review/appeal.

(ii) There is no provision for a review of marks awarded for individual assessment tasks. Reviews are limited to the assessment process. The only matters that the school will consider are whether or not:

(a) The weightings specified by the school in its assessment program conform with the Board's requirements as detailed in the relevant syllabus; and/or

(b) The procedures used by the school for determining the final assessment mark conform with its stated assessment programs; and/or

(c) computational or other clerical errors have been made in the determination of the assessment mark.

(iii) If you wish to apply for a review, you must do so by the date specified by the Board. The school will advise you of the outcome of its review and will advise the Board of any changes to assessment marks.

(iv) If you are dissatisfied with the outcome of the school review, you may advise your Principal that you wish the appeal to be sent to the Board of Studies. There can be no appeal against the marks awarded for individual assessment tasks. The Board will consider only whether:

(a) The school review process was adequate for the determining items (a), (b) and (c);

(b) The conduct of the review was proper in all respects.

(v) The Board will not revise the assessment marks or rank order. If the appeal is upheld, the Board will direct the school to carry out a further review. Further details about reviews/appeals are on the Assessment Appeal Form which can be obtained from the school. Appeals to the Board must be lodged at the school by the date on the form. No extension will be considered.

51 With this understanding of the HSC examinations and special provisions and related matters, the Tribunal now turns to consider Ms Wong's particular circumstances as they are relevant to her complaint.

The Applicant's Progress up to and including the Trial Examinations in 2008

52 Ms Wong's evidence was that she experienced difficulties writing for extended periods throughout her secondary education but had not appreciated that it was other than normal until just prior to the HSC examinations in 2008.

53 Ms Wong sat for the School Certificate examinations in 2006 and completed 5 mandatory external tests in November 2006 without any special provision. During this year, Ms Wong also completed the Year 11 Preliminary Chemistry course under the Respondent's accelerated progression provisions. As a result, in 2007 Ms Wong was able to complete the HSC course in 2 Unit Chemistry, including school assessment tasks during the year and a three hour written examination on 7 November 2007.

54 Ms Wong did not apply for special provisions in 2007. In the three hour Chemistry examination paper, Ms Wong says that she suffered pain and cramps and struggled to complete the last section in the extended answers. She did not however report it or lodge an illness/misadventure appeal in respect of this examination as she thought her cramping and pain were a common problem for students and she had the impression that her school had repeatedly trivialised her problem. (The Tribunal rules that the relevant portions of paragraph 30(g) of the Applicant's sworn statement of 20 December 2011 are relevant and admissible.)

55 It may be noted here, however, that Ms Wong did seek a school review of her assessment ranking for the 2 Unit Chemistry course in 2007. The review in respect of the March assessment was resolved satisfactorily between the school and Ms Wong. No such resolution was, however, able to be achieved for the August 2007 assessment. As a result, Ms Wong lodged a form headed 'Application for School Review of Assessment Ranking' dated 29 November 2007 and supporting documentation with the Respondent as an "Assessment Rank Appeal". The ground ticked by Ms Wong as being the ground relied upon was that 'the procedures used by the school for determining the final assessment mark do not conform with its stated assessment program, in particular the weightings used for the various assessment tasks are not consistent with those specified in the Assessment Program'. On the front of the form filled in by Ms Wong was also the following statement:

"The grounds for appeals against school assessments are detailed below. Please note that there is no appeal against the marks awarded for assessment tasks."

56 The Respondent declined the appeal as it was in effect seeking to vary the school's assessment mark which the Respondent could not do (as explained in section 22(ii) of the 'Rules and Procedures for 2008 Higher School Certificate Candidates' booklet quoted above).

57 No further action was taken by or on behalf of Ms Wong in that regard at this time.

58 In 2008, Ms Wong completed the HSC courses in PDHPE, Modern History, Physics, English Advanced, Mathematics Extension 2 and Mathematics Extension 1. Ms Wong's HSC result in Chemistry from 2007 was brought forward for inclusion with the 2008 results, without penalty.

59 As part of completing the six courses referred to above in 2008, Ms Wong was required to complete a number of assessments tasks by her school including trial examinations in about August 2008. In addition, Ms Wong was required to sit for a number of external, timed, written HSC examinations, administered by the Respondent, in October and November 2008.

60 During 2008, Ms Wong continued to experience difficulties in writing for extended periods. When she was required to write extended responses for more than about 30 minutes, Ms Wong experienced cramping and pain in her hand and her writing speed decreased as her hand fatigued. The deterioration in writing speed also caused Ms Wong to become anxious about being able to finish her papers in the allotted time. Ms Wong also said that the legibility of her writing decreased as her hand became tired. On a review of the essays before the Tribunal, the Tribunal could notice some change in the writing when comparing an essay written when Ms Wong was fresh with one written toward the end of an examination. Nonetheless, the Tribunal did not form the view that the writing in the essay written towards the end of an examination was significantly more difficult to read compared to an essay written when Ms Wong was fresh. In the Tribunal's assessment it could not be said that the handwriting from later in the examination period was illegible.

61 Ms Wong had repeatedly during her secondary education expressed concerns regarding her difficulties to her teachers but her perception was that these teachers downplayed her difficulties telling her that many students experienced similar difficulties and that she should practise writing extended responses so as to improve her handwriting ability. Some teachers also advised her that she should pay more attention to time management in the examination so that she finished all questions. (The Tribunal rules that the relevant portions of paragraph 26 of the Applicant's sworn statement of 20 December 2011 are relevant and admissible.) This evidence should, however, be considered in the light of the comments from Ms Wong's therapists in their report on their assessment on 8 September 2008. In that report under the heading 'Recommendations', it is stated:

"Sarah's handwriting difficulties are mild however impact on exam performance has been significant. She would benefit from practicing specific strengthening activities to improve her handwriting quality and endurance. However due to the late diagnosis of her handwriting difficulties, Sarah does not have adequate time to improve her handwriting skills to an appropriate level."

62 Two important matters are revealed by this recommendation. First, Ms Wong's difficulties were mild. The school's teachers may well have formed a similar assessment and made comments to a similar effect to Ms Wong. Secondly, it appears that Ms Wong's difficulties could have been addressed, if they had been diagnosed earlier during her secondary education, by 'specific strengthening activities'. Ms Wong's problems being left undiagnosed until approximately 6 weeks before the HSC examinations meant that these specific strengthening activities could not be implemented for a sufficient period to cure the defect. If the teachers were referring to these types of activities to improve her writing ability, their comments would appear to be justified. The Tribunal has not heard any evidence from the school nor was the school joined as a party or represented at the hearing. In the circumstances, the Tribunal does not accept that the school had repeatedly misled the Wongs in regard to Ms Wong's writing difficulties (as alleged by Mrs Wong at pages 4 and 5 of her 22 page response to the ADB sent by email on 27 May 2010).

63 Given the therapist's recommendations it is, perhaps, not surprising that despite practice in the form of writing practice essays (not the 'specific strengthen activities' mentioned), Ms Wong found that her hand writing difficulties continued and intensified in the trial examinations. She believes that this had an adverse impact upon her school assessments for the HSC. (The Tribunal rules that the relevant portions of paragraphs 48 and 49 of the Applicant's sworn statement of 20 December 2011, understood as set out above, are evidence that the Applicant can give and are admissible.)

64 Following the trials in about August 2008, Ms Wong came to the conclusion that her writing difficulties would not be overcome with handwriting practice and she was anxious that they should not prevent her from performing as well as she could in the external HSC examinations. She discussed these matters with her mother who contacted the school in and about the first few days of September and asked about the possibility of computer provision for her daughter in the HSC examinations as well as other matters. Mrs Wong was aware that her other daughter, Katherine, had been granted special provision by the Respondent so that she could use a personal computer and printer for her HSC examinations in 2006. Mrs Wong was advised to seek medical evidence by taking her daughter for assessment by an occupational therapist.

65 At about this time, the school raised with Mrs Wong the possibility of Ms Wong dropping Modern History and indicated that the school would permit her daughter to do so. This suggestion was rejected as unfair by Ms Wong.

66 Ms Wong consulted an occupational therapist and a physiotherapist on 8 September 2008. As a result of their assessment of Ms Wong on that day, they concluded in their joint report that:

"Low muscle tone and joint hypermobility are affecting her ability to hold and control the pen age [sic] appropriately. She compensates by adopting a restrictive pen grip and this has assisted her in writing neatly for short periods of time however when writing for extended periods of time her hand tires quite significantly. She was unable to rest her wrist on the table with her wrist lifting up off the table (ulnar deviation) when writing. This is contributing to pain and fatigue up her forearm and upper arm."

67 The report included recommendations that Ms Wong be granted special provisions for the HSC examinations by the Respondent in the form of extra time for writing and extra time for rest breaks.

68 In Mrs Wong's 22 page response to the ADB sent by email on 27 May 2010 at pages 7and 8, she stated:

"The occupational therapist explained that due to the very late nature of Sarah's application, it would be better to apply for the provision that the BOS recommended for writing difficulties. According to pg 4 of the 2008 application form entitled 'Provisions Requested', the provision for writing difficulties can be extra time and extra time to rest. Hence, the occupational therapist recommended that 'Sarah be granted extra time for writing and extra time for rest break' She also mentioned that it would be impossible to have the computer provision approved as she had noticed that computer provision as a recommended for writing difficulty has recently been removed from the application form. Her final advice to us was it would be better to get some provision quickly that offered at least some help to Sarah quickly than risking not getting any provision. She was fearful that there would not be sufficient time to appeal against rejection of computer as it was highly likely that would happened, as the BOS had recently decided to remove computer from the BOS recommended provision for writing difficulties in the application form."

69 Mrs Wong has also asserted in the material provided to the ADB that 'The BOS officers had repeatedly misled us that computer provision was off the list. .... when our repeated pleads for computer use before the HSC examinations had been met with the standard reply that it was no longer made available to students.' Further she said:

"If we had not been misled, we would have reasoned with the occupation therapist earlier to apply for the use of computer, as we commented to the occupation therapist that extra time for a fatigued hand to write did not seem to be a better option than computer which could overcome most of her problem. However, the occupation therapist told us that we did not have much time to appeal, apply for the computer would really risk not getting any examination provision, as it was very difficult to get provision that was not recommended for a particular difficulty by the BOS. Computer had apparently been taken off the list for writing difficulty when Sarah requested it in September 08."

70 It will be recalled that no formal application for computer provision was made on Sarah's behalf until 15 October 2008. The passages quoted in the preceding paragraph may be taken to suggest that Mrs Wong was misled by officers of the Respondent prior to the application for special conditions being first made by the school in September 2008. This suggestion should not, however, be accepted for a number of reasons. First, no relevant conversations occurred between Mrs Wong and officers of the Respondent prior to the original application for special provisions being lodged. Mrs Wong's sworn evidence was that she 'requested the computer provision informally only via phone on 7 October 2008, 14 October 2008 and 16 October 2008' and it was apparently during these conversations that comments on the availability of computer provisions were made by officers of the Respondent. She also recounted being told during one or more of those conversations that 'Computer provisions had been taken off from the list for students suffering from pain and cramp in hand in 2008, due to abuse and cheating'.

71 Secondly, Mrs Wong was not misled. It was not in dispute and there was evidence that the Board had between 2006 and 2008 changed its approach in relation to the availability of computer provisions for writing disabilities because of difficulties such as cheating and because it could give students an unfair advantage over others. As noted above, computer provision was not expressly listed as one of the types of provision on page 4 of the 2008 Special Examinations Provisions Application Form. But, that page did include the notification that 'This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below.' Mrs Wong said in her sworn evidence that she was told by the Respondent, the school and the occupational therapist that computer provision had been taken off the 'recommended list of provisions for students with pain and cramp in the hand in the 2008 application form'. If this is what she was told and the 'recommended list' refers to the list on page 4 of the application form, it was correct.

72 In any event, there was evidence from the officers of the Respondent that they did not say what Mrs Wong recalls in so far as it misstated the Respondent's policies in relation to these matters. If it were necessary to resolve the differences in the evidence (and the Tribunal does not believe it is because on Mrs Wong's version what was said to her was unlikely to have been misleading) the Tribunal would find that, although both Mrs Wong and the officers were honestly trying to recollect what actually occurred, it is likely that the officers correctly informed Mrs Wong of the Respondent's policies but may not have expressed themselves in a way that made the situation clear to Mrs Wong who was probably agitated and upset about her daughter's situation when she spoke to those officers. As a result, Mrs Wong may have been left with an impression which may not have been correct but it would be wrong to conclude that she had been deliberately misled.

73 As a matter of fact, however, as the application form made clear, there was nothing to prevent Ms Wong's original application including a request for computer provision. In 2008, computer provision was possible for writing difficulties as expressly set out in Attachment 10.1 to Section 10 of the Assessment Certification and Examination Manual and as confirmed by Mr Ford's and other evidence before the Tribunal.

74 Further, the Tribunal did not have the benefit of the occupational therapist's version of any conversations with Mrs Wong on this topic nor was she called to give evidence. The Respondent did not have the opportunity to cross examine the occupational therapist. Consequently, the Tribunal has approached the material based on what the occupational therapist allegedly said with appropriate caution.

75 What appears to have happened is that, although prior to and at the time of making Ms Wong's original application for special provisions Mrs Wong knew about the possibility of seeking computer provision, she formed the view, after speaking to the occupational therapist, that it was unlikely that Ms Wong would be given computer provision because it was not on the list of 'recommended provisions' and thus thought 'it would be better to get some provision quickly that offered at least some help to Sarah quickly than risking not getting any provision.' The officers of the Respondent, the school or the therapists did not mislead Mrs Wong in this regard.

The Applicant's Applications for Special Provisions and Appeal

76 By about 15 September 2008, Ms Wong had obtained the school's agreement to assist her in applying for special HSC examination provision. As part of this, she was required to write an essay in 35 minutes under examination conditions (without any special provisions) on an unseen topic. The essay topic was question 4, specified on page 8 of the Application Form. The response that Ms Wong wrote became what was known as 'essay one', that is one of the items of the student's work submitted with the application form.

77 The application form was prepared by the school. Ms Wong signed the student's declaration on 17 September 2008. The essay completed at school under test examination conditions on 19 September 2008, essay one, was submitted under a coversheet which noted among other things, that Ms Wong had written 710 words in the 35 minutes allocated for the task. This equates to approximately 20.2 words per minute.

78 The learning support teacher who signed the coversheet and who apparently conducted the test said that as far as she was aware, this was typical of the student's effort and style. It was also stated that no signs of fatigue or discomfort were displayed by the student and it was specifically noted that:

"It was not anticipated that Sarah would show signs of fatigue as it was only 35 min long essay. Her fatigue becomes apparent over longer periods of sustained writing."

79 In addition to essay one, as required by the application form, a recent copy of a hand written assessment task or school exam (essay or extended response) completed under examination conditions as part of a school based assessment procedure within the last half year was also submitted under a coversheet. This was an essay from Ms Wong's English Advanced trial exam and was known as 'essay two'.

80 The coversheet for essay two noted that the assessment had taken place on 4 August 2008 without special provisions. The time allocated for the task was 40 minutes and the number of words written was 649. This produces an average writing speed of approximately 16.2 words per minute.

81 Ms Wong's English teacher, who signed the coversheet on 18 September 2008, noted that:

"Sarah works very hard and would normally write more than this in the available time.

I was not present, but I understand that there are problems with low muscle tone. This was not the final question on the examination paper, although perhaps she attempted it last?"

82 In the part of the form dealing with the reason for the application, the reason 'physical disability' was ticked and in the section headed 'provisions requested', the provisions 'extra time (for a writing disability)', 'extra time to rest (for fatigue, pain or anxiety or attention related conditions)' and 'separate supervision' were the only boxes ticked. No other provisions were sought and specifically the form did not identify the use of a computer as a type of provision which was being applied for, even though this could have been done in the section of the form below that which stated:

"This list does not include all provisions possible or available to students. If you wish to apply for provisions not listed above, please list below."

83 Given that Mrs Wong had raised the possibility of computer provision with the school as early as the first week of September, it appears to the Tribunal that the inference is open that the school was of the opinion at that time that computer provision was neither necessary nor appropriate in Ms Wong's case or was following the recommendation of the therapists. Nonetheless, the Tribunal does not believe it is necessary to make a finding in this regard and is unwilling to do so as the school was not a party to, nor was it represented at the hearing of, this proceeding.

84 In the 'school provisions and teachers' comments' section of the application, it was noted that the school had not put in place any special provisions in its assessment procedures for Ms Wong and the Modern History teacher wrote:

"Sarah is a capable student but her results have been marred due to her inability to complete a three hour examination within the timeframe. Her handwriting becomes erratic and due to continuous pain, she has a tendency to leave sections of the paper unanswered."

85 Ms Wong's English Advanced teacher's comment was:

"Sarah has difficulty writing extended responses in the available time. Her handwriting suffers because of physical problems."

86 The Principal's declaration was signed on 22 September 2008. The 'health professional' part of the form was completed by a Physiotherapist, Ms Emma Armstrong, and an Occupational Therapist, Ms Nyree Beattie. Their diagnosis was noted as having been made on 8 September 2008 and was in the following terms:

"- Slightly low muscle tone.

- Reduced fist grip strength.

- Reduced pinch strength.

- Joint hyper mobility in her thumb and fingers (at the proximal interphalangeal joints).

- Restrictive pen grip.

- Ulnar deviation when writing (wrist lifting up off the table).

- Difficulty writing for extended periods of time.

- Cramping in hand when writing.

- Reduced sensory awareness in hands and fingers - touch and movement position sense.

- Reduced postural control affecting ability to maintain upright posture and upper limb control."

87 In their comments on how the condition would affect Ms Wong's day to day functioning in the classroom they said:

"Low muscle tone and joint hyper mobility are impacting on Sarah's ability to hold the pen using a functional grip. She adopts a restrictive pen grip to compensate, which results in her hand tiring and cramping when writing. This would affect her ability to perform hand written notes in class."

88 In response to the request for a description of the likely effect on the student's performance at the time of the HSC examinations, they commented:

"Concerns exist regarding Sarah's ability to complete written exams in the set timeframe. Handwriting difficulties affected her ability to complete Trial HSC examinations and this affected her results quite significantly. She is unlikely finish handwritten HSC examinations in the time given and also unlikely to write similar quantities as per peers due to fatigue and cramping. Sarah's reduced postural control would also affect her ability to assume an appropriate posture and maintain it over an extended period of time.

It is recommended that Sarah receives special provisions from the Board of Studies in the form of extra time for writing and extra time for rest breaks for her HSC examinations."

89 Ms Wong wrote a covering letter for the application outlining her academic ability, her struggles to complete writing and tests of examination papers throughout Years 7-12 and her perception that she performed below the expectation of a full academic scholarship holder. As she understands it, this letter was not submitted as part of her application by the school.

90 A number of essays were submitted to the school for the purpose of accompanying Ms Wong's application. It appears, however, that the school chose not to include an essay from Ms Wong's Modern History trial paper, where the writing speed could be calculated at approximately 10.8 words per minute. It should be noted that the application form only relevantly provided for two items of work to be submitted. One had to be an essay written under the circumstances specified in the form and this was essay one. For the other, the school chose to present the English Advanced trial exam essay, essay two.

91 The Respondent received Ms Wong's application for special provisions on 24 September 2008, which was only 23 days before her first HSC examination.

92 It appears that in accordance with the Respondent's usual procedures, the application was sent to Dr A, a Specialist Paediatrician on the Respondent's panel, for consideration. Dr A recommended extra time to rest and separate supervision for all courses but recommended against extra time to write.

93 These recommendations were then checked by an officer of the Respondent to ensure that they corresponded with the Respondent's guidelines. The decision whether to grant the provisions sought was however delegated by the Board under its 2008 delegation (which was in evidence before the Tribunal) to the Head, Student Support Services, who was Mr Ford at the time. It appears that Mr Ford decided to accept the recommendations of Dr A and, accordingly, the Respondent sent a letter to Ms Wong through the school dated 1 October 2008.

94 In that letter, it was stated as follows:

"Following careful consideration of the evidence presented, the Office of the Board of Studies decisions are listed overleaf.

You may elect to use any, or all of these provisions."

95 Overleaf it was noted under the heading 'Provisions Approved' that in respect of all courses, Ms Wong had been granted provision for separate supervision and extra time at the rate of 5.0 minutes per half hour of examination time in each examination but the rest breaks were stated to be extra time without access to the examination or response papers. This extra time to rest was said to be to allow the student to stretch, move or rest as well as being available to refocus and process information and to plan in their minds the next response.

96 Under the heading 'Provisions Declined' it was stated that extra time to write had been declined for all courses.

97 After being informed of the special provisions which had been granted, Ms Wong practised with the rest break provision. She wrote three essays with rest breaks when needed. After this practice, she informed her mother that the rest break provision did not address her pain and slow writing speed.

98 Mrs Wong in her written evidence stated that on 7 October 2008 she informed the Respondent by telephone that the rest break provision did not address her daughter's writing disability and requested extra time to write or the provision of a computer. Mrs Wong also said that when she referred in that conversation to all the examples which evidenced the impact of her daughter's disability on her performance in examinations, Mrs Wong discovered that the school had not submitted the Modern History trial essay referred to above with the application for special provisions.

99 By a facsimile dated 8 October 2008 and sent at about 12:01pm on that day, the School Counsellor of the school sent an appeal letter plus further occupational therapy documentation for Ms Wong to the Respondent. The appeal letter was written by the Headmistress of Abbotsleigh and dated 7 October 2008 and was in the following terms:

"I am writing to appeal the decision from the Board of Studies declining the provision for extra time to write for Sarah Wong.

Please find attached the medical documentation which provides extra evidence of the need for Sarah to be granted 'extra time to write' to complete examinations in History and English.

1. Occupational Therapist report from Nyree Beattie Therapy & Learning Centre, which outlines:

That Sarah's condition is such that the provision of extra time to write would help with her hand fatigue and would give her hand time to recover from the cramping which occurs over an extended period of writing.

As a result I would greatly appreciate it if you could review your decision to decline the special provision of Extra Time to Write and consider allowing Sarah this provision to complete her HSC examinations in History and English."

100 Accompanying the Headmistress's letter was a letter from Ms Beattie, Occupational Therapist and Ms Armstrong, Physiotherapist, dated 7 October 2008 and addressed to the Respondent. That letter contained the following:

"We wish to appeal for further special consideration in the form of extra time for writing due to Sarah's handwriting difficulties.

The combination of slightly low muscle tone, reduced grip strength and joint hyper mobility affects Sarah's ability to write appropriately, particularly over longer periods of time. Hand writing speed is further impacted on by notable ulnar deviation (wrist lifted when writing rather than resting on the table). Ongoing concerns exists regarding Sarah's ability to complete hand written exams that require extended response answers, particularly English and history, in the set time frame."

101 Approximately 50 minutes after sending the facsimile on 8 October 2008, the School Counsellor from Abbotsleigh sent an additional facsimile headed 'Additional Information for Appeal' to the Respondent which was in the following terms:

"I spoke with BOS today as Mrs Wong had said we needed to submit History essay. BOS advised I fax this as further evidence. Please note I did not supervise this essay - it was part of a three hour history examination. Please advise if you need further information."

102 The History trial exam essay referred to above was submitted with a coversheet which recorded that the total number of words written was 434 and that the time allotted for the essay was 40 minutes, but it was noted that the person submitting the material was not sure of the time taken as she was not supervising the exam. Assuming that the time allotted was the time taken to write the essay, the writing speed could be calculated at approximately 10.8 words per minute.

103 It was further stated that:

"Sarah attempted this essay at the end of the time period - could not complete fully due to hand fatigue. I was not present but Sarah reported cramping of her hand. Sarah reports that her hand cramps and she cannot fully complete the last part of an exam."

104 As can be observed from the documentation submitted to the Respondent, the appeal was limited to the claim for the extra time to write provision. No request for computer special provision was made in the appeal or otherwise in writing at this time. This also is also consistent with the original decision not to seek computer provision but only to seek rest time and extra time to write.

105 Moreover, the appeal did not include any information that Ms Wong had tried using the rest breaks but had found they did not address her pain and slow writing speed. It did not contain details of the practice Ms Wong had undertaken with the rest breaks, how long they were, when they were taken, and what effect they had, if any. There was no indication of whether Ms Wong had practised with one or two long rest breaks or many short rest breaks or some other combination of breaks. No information was given as to the effect of different ways of taking the breaks on Ms Wong's conditions.

106 The appeal was received by the Respondent and referred to Dr B, a specialist Paediatrician on the Board's panel. The evidence was that Dr B recommended against extra time to write, noting that all three submitted essays were above the handwriting rate for the approval of that provision.

107 The appeal was then processed by an Officer of the Respondent on 14 October 2008, who noted that:

"Student writes at a good speed - evidence supports student suffers pain with writing - I would recommend extra time to rest be increased to 7.5 mins per half hr. Decline [extra time to write]."

108 A similar decision was reached by the Director, who commented:

"Two Doctors have declined extra time to write. The appropriate provision for pain and cramping in rest."

109 It is not clear from the material available to the Tribunal whether the Board's delegate authorised to determine appeals from students against decisions concerning special provisions, Ms Taylor, actually reached any decision on the basis of the recommendations referred to above. In any event, before a decision was formally conveyed to the school and Ms Wong, the Respondent received a further application on Ms Wong's behalf for special provisions by way of a computer.

110 At 10:18am on 15 October 2008, the school sent a facsimile, signed by the School Counsellor, marked 'Urgent Please' which stated:

"Please find attached an application for Sarah Wong for the use of a laptop in HSC English and History.

I spoke to the BOS yesterday and was advised to send this to you today.

I am very sorry for the last submission."

111 Under cover of that facsimile was a letter from the Acting Headmistress, which stated:

"Mrs Wong has asked that we apply for the Special Provision of a laptop for Sarah to use when sitting the HSC History and English examinations. Sarah states that she cannot write long essay based exams as her hand cramps and fatigues. She feels this disadvantages her as she finds that the last essay she writes is always shorter as she is unable to write all that she wants as her hand is too cramped. She has now found that all her essays are affected as she is trying to rush to finish. Sarah feels that she is able to manage very well when she types on a laptop and feels she is able to display her true ability and is not disadvantaged. This applies to History and English only. She will only need the extra time to rest in her other examinations as they are not as essay based.

Mrs Wong will hopefully be providing the medical documentation today. I will fax that to the Board when it arrives.

Thankyou very much for your support with this very late application."

112 Ms Wong's first examination was due to take place two days later on 17 October 2008.

113 At 2:19pm on 15 October 2008, the School Counsellor sent a further facsimile, which attached the additional medical provisions documentation to support Ms Wong's application for a laptop to use during the HSC History and English papers. The 'medical professional' referred to in the application was Dr E Kucera. Under cover of that facsimile was a copy of page 15 of the Special Examination Provisions Application Form filled out by Dr Kucera. The diagnosis was described as:

"Low muscle tone + joint hyper mobility of both hands resulting in early writing fatigue and muscle spasm."

114 The date of diagnosis was noted to be '8.9.08 (seen by an OT) + 15.10.08 (GP)'.

115 The Doctor's comments on how the condition would effect the student's day to day functioning in the classroom was:

"Her condition does not affect short writing (under approx 30 min) or if the writing is intermittent. She has problems during continuous writing (fatigue after about 30 min). Muscle cramps after approx 40 min. Then even rest does not help."

116 The likely effect on the student's performance at the time of the HSC examinations was stated in the following terms:

"Not being able to continue her written HSC exam after 30-50 minutes even with breaks (that she starts to write very slowly, then after having cramps she cannot continue)."

117 Under 'Other Comments', the Doctor said:

"I would recommend to use computer instead of writing (for English + History examinations [indecipherable] long writing)."

118 And there was a further note:

"Her OT recommended an extra time plus breaks however once she gets cramps she cannot continue, therefore it seems to be better option to use computer from the start. [There is further writing underneath this which has been cut off in the photocopy provided.]"

119 In order to deal with late applications and appeals for special provisions, the Respondent had arranged for Ms C, a registered Psychologist on the Board's panel, to be available on site. Ms C was asked to consider the request for a computer for Ms Wong. Ms C recommended against a computer, quoting Dr B's comment of 'no significant medical condition' and noting that Ms Wong's writing was legible and that her legibility did not deteriorate over time. As has been indicated above, this latter conclusion as to legibility is one with which the Tribunal concurs insofar as it can be judged by reference to the three essays submitted to the Respondent on Ms Wong's behalf in September and October 2008.

120 Mr Ford and another officer of the Respondent processed the further application for a computer and Ms C's recommendation. As Dr Kucera had noted 'even rest does not help', Mr Ford determined that Ms Wong should be provided with a writer as an alternative to the increased rest breaks previously recommended.

121 The Director, Assessment and Examinations, Ms Taylor, accepted these recommendations and wrote a letter dated 16 October 2008 to Ms Wong concerning these matters. Ms Taylor's letter stated in part:

"After careful consideration of the appeal, the Office of the Board of Studies has approved the provision of a writer, together with extra time at the rate of 5 minutes per hour half to compensate for the dictation process. Alternatively, if you elect not to use a writer, you are entitled to extra time to rest to the rate of 7.5 minutes per half hour of examination time. Extra time to rest may be used to stretch, move or rest. You may use the extra time to refocus and process information, to plan in your mind your next response. The rest breaks are extra time without access to the examination paper or student responses.

The provision of extra time to write and a personal computer are declined. Your writing rate is outside the Office of the Board's guidelines for the granting of these provisions. Your hand writing has been assessed and has been deemed legible.

Enclosed is a computer generated decision letter for clarification of your provisions.

Your Principal has been advised of the decision. Should you have any question, please contact Mrs Poole at your school in the first instance."

122 It appears that in addition to sending the letter, an officer of the Respondent telephoned Mrs Wong at about 10:00am on 16 October 2008 and conveyed the information to her orally.

123 The computer generated letter referred to in Ms Taylor's letter of 16 October 2008 noted 'you may elect to use any, or all of these provisions'. And the provisions were described as:

"Provisions Approved

Writer HSC

All Courses

The student is permitted the use of a writer in each examination listed, together with extra time at the rate of five (5) minutes per half hour of examination time to compensate for the dictation process. ...

Exam Supervision

All Courses

The student has been granted provisions that require small group or separate supervision. If the student chooses not to use any of these provisions, the small group or separate supervision is no longer available. ...

Extra Time to Rest

All Courses

The student is granted extra time at the rate of 7.5 minutes per half hour of examination time in each examination listed. The rest breaks are extra time without access to the examination or response papers. The extra time to rest allows the student to stretch, move or rest. The student can use the extra time to refocus and process information, to plan in their mind the next response.

The student can determine the times at which the extra time to rest is taken and must advise the supervisor whenever they wish to use extra time to rest. The supervisor is to time the amount of extra time spent resting and extend the student's examination time appropriately. The total extra time given must not exceed the overall time allowed, ie. the number of minutes approved per half hour exam time multiplied by the number of half hour periods in the given examination. If the student wishes to remain at their desk during this extra time to rest, they may elect to be seated at the front or back of the examination room. The student's examination and response papers are to be turned over by the student or supervisor at the beginning of each time the student elects to rest.

EXTRA TIME TO REST IS APPROVED ONLY IF THE STUDENT ELECTS NOT TO USE A WRITER.

Provisions Declined

Extra Time to Write

All Courses

The request for this provision has been declined for the courses listed as the evidence presented places the student outside the Board of Studies' guidelines for the special provision program.

Personal Computer / Printer

All Courses

The request for this provision has been declined for the courses listed as the evidence presented places the student outside the Board of Studies' guidelines for the special provision program."

124 It can be noted here that neither letter contained any advice that if the use of the writer provision occasioned difficulty for Ms Wong because of the lack of time to practise dictation to a writer, this could amount to a basis for lodging an Illness/Misadventure Appeal.

125 When Ms Wong was informed of the outcome of her appeal and the later application, it appeared to her that she had the option of using a writer for each examination or taking the rest breaks at a rate of 7.5 minutes per half hour but not both. In other words, she could not combine the use of a writer and taking rest breaks in one examination. The Tribunal finds that this is not an unreasonable reading of the letters and in particular the sentence that 'Extra time to rest is approved only if the student elects not to use a writer". From the oral evidence given by Mr Ford, it now appears that this is not what the Respondent intended to convey. The Respondent contended that the writer provision and the extra time to rest could both be used in one examination, just not at the same time. Thus, for example, a student could write for half an hour and then take a 15 minute rest break and write for another half an hour and then decide to use a writer for the remainder of the examination and consequently have 2 hours and 20 minutes to complete the paper, taking into account the extension of 5 minutes per half hour for dictation. If this is what was intended, it was not conveyed clearly by the Respondent's correspondence and it is not surprising to the Tribunal that Ms Wong did not appreciate that this was being offered.

126 Later that day, 16 October 2008, Mrs Wong apparently spoke to an Officer of the Respondent, Ms McCaslin, about Ms Wong's concerns. Ms McCaslin advised Mrs Wong that a computer would not be approved if the request for a computer had been declined on appeal by that time. In that conversation, Ms McCaslin did draw to Mrs Wong's attention the possibility of lodging an illness/misadventure appeal if additional difficulties with the special provisions that had been granted were experienced during the examination. It is likely during that conversation that Mrs Wong was informed that, if such an appeal were upheld, her daughter's HSC mark could be determined by reference to her moderated school assessment mark rather than her examination mark. Mrs Wong then raised her concerns about the school's assessment marks for her daughter (which became the subject of the School Assessment Illness/Misadventure Appeal referred to later in these reasons for decision).

127 Faced, as she perceived it, with the choice for each examination of using a writer or having extra time to rest, Ms Wong decided that she did not have confidence that she could use a writer effectively with less than 12 hours of practical notice before her first HSC exam at 9:00am on the following day, 17 October 2008. Ms Wong felt she was left with no other choice but to use the increased rest break provision of up to 7.5 minutes per 30 minutes and not the writer.

The HSC Examinations

128 Ms Wong sat her HSC examinations on the following dates:

English (Advanced) Paper 1 17 October 2008

English (Advanced) Paper 2 20 October 2008

Mathematics Extension 2 27 October 2008

Modern History 28 October 2008

Mathematics Extension 1 29 October 2008

Physics 4 November 2008

PDHPE 5 November 2008

129 Ms Wong had the benefit of, and used to a limited extent, in each examination the extra time to rest and the separate supervision provisions. Consistently with her decision referred to above, she did not use the writer provision in any of her examinations. It was not explored in evidence why Ms Wong did not take up the option of a writer in her later examinations, especially if she had had time to practise dictation with a writer between 16 October and those later examinations.

130 At some time prior to 27 October 2008, it appears that Ms Wong was given, or was given an indication of, her school assessment marks or rankings for her various subjects.

131 Mrs Wong apparently telephoned the Respondent and on 27 October 2008, Ms McCaslin rang Mrs Wong back. Mrs Wong says in relation to this conversation that it was 'a follow up call ... to confirm the procedure for proper adjustment of assessment and examination marks'. Ms McCaslin's notes of that conversation were recorded in the Respondent's system and are not inconsistent with Mrs Wong's description of the conversation. The notes are as follows:

"Re: [Ms Wong] 1245pm Phoned Mrs Wong at the request of LS [Lorrae Skelcher, Acting Head, Student Examination Support] as message received that she had issues with Sarah's special provisions. Duration of call: 45 mins. Mrs Wong did not discuss or challenge the provisions that had been granted to Sarah, other than to say in passing that they didn't help much. Rather she wished to discuss the possibility of appealing her daughter's assessment rank. Mrs Wong gave the history of Sarah's problem and recounted the spec prov application communications between school and OBOS. Mrs Wong was concerned that Sarah's problem had been long term but only recently diagnosed when the school suggested she see an OT after difficulty with extended writing in trials. Mrs Wong inferred that IM [illness/misadventure] is of no use because her trial results were substandard because no provisions were in place. She also explained the hospitalisation and death of Sarah's grandmother during her trials and Mrs Wong became very tearful and emotional at this point. I recommended that she investigate UAC's EAS since it appeared to be a long term problem. I also referred her to the orange HSC rules and procedures booklet p 16, 17 re grounds for appealing the school's ranking and gave her Michelle Aspery's phone contact. Mrs Wong's main aim of the call was to confirm that it was possible for a school to change a ranking after the timeline. I said it was possible if there was good reason for doing so (eg a mistake). Mrs Wong seemed to be aware that a rank appeal was likely to be outside the scope for one but that she expressed her hope the BOS was not like a computer and rigid in applying its rules"

132 At the conclusion of her HSC examinations Ms Wong and her examination supervisor completed a report on the use of special conditions. That report was signed by Ms Wong on 5 November 2008 indicated that the extra time to rest and separate supervision provisions had been used in each examination. Ms Wong's comments were as follows:

"The rest time provided helped me in many of my examinations, especially in subjects such as PDHPE where I was able to take breaks when I began cramping and stretch out my hands. In subjects like Maths I didn't need to use them much as I don't usually experience cramps in subjects that do not require extensive intense writing. In English, they were useful, but I was still unable to finish the paper as although the rest breaks helped to reduce the effects of cramps, but my writing speed still became noticeably slower and at times my writing became quite messy.

Overall I am very glad I have used these special provisions as they have enable me to come closer to achieving my full potential."

133 The supervisor recorded on the form:

"Sarah appeared to utilise her rest breaks to assist with her condition. She took between 4 + 9 breaks in her exams except for Maths Ext 1 + 2 (1 break) and ranged between 1 + 4 mins."

The Applicant's Illness/Misadventure Appeals

134 On 5 November 2008, Ms Wong instigated, in effect, 2 Illness/Misadventure appeals. One was in respect of the HSC examinations and was submitted to the Respondent and the other related to the school's assessment processes and was submitted to Abbotsleigh.

The HSC Examinations Illness/Misadventure Appeal

135 On 5 November 2008, Ms Wong signed a form which was for an "Appeal Due to Illness/Misadventure at the time of the 2008 Higher School Examinations" (the I/M Appeal form) to be submitted to the Respondent. The examinations which were the subject of the appeal were English Advanced Paper 1, English Advanced Paper 2 and Modern History.

136 Even if an Illness/Misadventure appeal in relation to these examinations were successful, the only relevant result would have been that Ms Wong's school assessment ranking based mark could be used instead of the HSC examination mark in determining her HSC result for English Advanced and Modern History (see section 16(1)(v) of the 'Rules and Procedures for 2008 Higher School Certificate Candidates' quoted above). The Board's 'Assessment Certification and Examination Manual', section 11.3 headed 'Procedures for Illness/Misadventure Appeals' relevantly stated:

"In the case of Higher School Certificate illness/misadventure appeals, if the appeal is upheld, the student will be awarded their examination mark or the assessment mark, whichever is the higher."

137 Thus a successful Illness/Misadventure appeal would only work to Ms Wong's advantage if her school assessment mark were higher than her HSC examination mark. Naturally, if there had been some illness or misadventure in the HSC examination, it would be unreasonable and unfair to use this as a reason for adopting a lower school assessment mark instead of a higher HSC examination mark. At the time Ms Wong decided to lodge the I/M Appeal form, she did not know her HSC examination mark in any of her subjects.

138 Ms Wong was required in section A of the I/M Appeal form to describe for each examination how 'illness or unforeseen misadventure affected [her] performance ...'. For the English Advanced Papers 1 and 2 examinations, she wrote respectively:

"Due to my inability to sustain prolonged intense hand writing, I was forced to shorten my creative response and reduce the textual detail + analysis in my essay and comprehension. Despite leaving 40 mins, I was still rushed to complete the comprehension."

and

"With the knowledge of my hand difficulty, I reduced the textual detail & analysis in all my essays. Furthermore, my hand fatigue + hand aches caused a progressively slowing hand writing speed; thus despite leaving equal time for all responses, my final essay was significantly shorter. This was Module B, and I was unable to support my analysis with an evaluation of others readings in the later poems analysed."

139 For Modern History examination, she noted:

"My hand began aching after approximately 30 minutes whilst the rest breaks relieved the intense pain, the underlying fatigue persisted and my handwriting speed became noticeably slower. This forced me to shorten my discussion and evaluation, particularly in my final essay where I had to write very briefly (one line) on major events."

140 In section B of the I/M Appeal form, the Presiding Officer for the HSC examinations at Abbotsleigh recorded that Ms Wong did not report illness or misadventure for any of the examinations. This presumably relates to a report of illness or misadventure made during or immediately after an examination. Further, she recorded on the form:

English Paper 1	Supervisor did not report that Sarah was having any difficulties. She had 7 breaks ranging from 1½ to 8 mins (total 21½ mins) during the exam.
English Paper 2	Supervisor did not advise that Sarah was performing any differently than the other 4 sp provs students in the room. She had 8 breaks ranging from 1 min - 2 mins (total 11 mins).
Modern History	Supervisor did not mention that Sarah appeared to have nay difficulties during the exam. She had 8 rest breaks ranging from 1 - 3 mins (total 23 mins).

141 As an aside, it might be noted here that if the rest breaks recorded as having been taken by Ms Wong are correct, she did not use the full allocation of 7.5 minutes per half hour in any of those examinations. The Tribunal had no reliable information as to what would have happened if the full allocation of rest time had been used in any case.

142 Section C1 of the form was completed by Dr Kucera and signed on 6 November 2008. What is recorded as to the diagnosis is 'Early writing fatigue due to low muscle tone and tendency for spasm'. The date of onset of the illness was identified as 'Long Term, Realised during HSC Trials'. The dates and times of all consultations relating to the illness were said to be: '8.9.08 - seen by an OT 15.10.08 seen by GP'. This suggests that Ms Wong was seen by a medical practitioner in relation to her condition only once on 15 October 2008. The doctor's description of Ms Wong's condition in section C1 was:

"AFTER [approximately] 30 minutes of writing she gets muscle spasm and has to slow down significantly."

143 Dr Kucera also noted on the form:

Associated problem: joint hypermobility

Rest helps to relieve the pain but does not affect the speed of writing"

144 No problems additional to or different from those identified in the special provisions application were specifically referred to by Dr Kucera.

145 In section D of the I/M Application form, the Principal's Statement dated 13 November 2011, the Headmistress commented:

"Please note the BOS has given Sarah special provision for this condition. I leave it to you to assess if this appeal should be upheld."

146 This is apparently a reference to the fact if special provision had been granted to a student for a condition, he or she was not generally eligible for an illness/misadventure appeal unless additional difficulties were experienced during the examination (see section 16(1)(iv) of the 'Rules and Procedures for 2008 Higher School Certificate Candidates' quoted above). More detail of how this operated is given in the Board's 'Assessment Certification and Examination Manual', section 11.3 headed 'Procedures for Illness/Misadventure Appeals'. Paragraph 11.3.4 of this section relevantly provided:

"The provisions of the [Illness/Misadventure] appeals process does not cover:

...

disabilities for which the Board had already granted special provisions, unless an unforeseen episode occurs during the examinations (eg a hypoglycaemic attack suffered by a diabetic student or a student who has been isolated but is still ill) or further difficulties occur, the authenticity of which is supported by the presiding officer ... and the school;

Note: A student who has suffered an injury such as a broken writing arm immediately before the examinations will require careful consideration as the student generally will not have had sufficient time to practise with the provision(s) granted.

147 From the note to that quotation, it appears that if Ms Wong had used the writer provision but suffered difficulties because she had not had sufficient time to practise dictating to the writer, this could have constituted a legitimate basis for an Illness/Misadventure appeal. This course was, however, not open to Ms Wong as she had elected not to use the writer provision.

148 Ms Wong's appeal was considered by four members and a deputy convenor of the Illness/Misadventure panel. They agreed to decline the appeal noting 'Ongoing condition for which special provisions granted. Original diagnosis early September."

149 Furthermore, after Ms Wong's HSC examination marks in English Advanced and Modern History were finalised it was discovered that her examination marks were higher than her assessment marks in both subjects. Accordingly, even if her appeal had been upheld, in accordance with the Board's 'Assessment Certification and Examination Manual', section 11.3 (quoted above), her HSC exam marks would not have been replaced with the lower assessment marks.

150 As a result, the Respondent sent what appears to be a computer generated letter dated 16 December 2008 to Ms Wong in which she was informed that in respect of both English Advanced and Modern History 'Your examination mark in this course is greater than or equal to your assessment mark .... As a consequence it is not possible to vary your examination mark.'

151 To guard against such an eventuality, Ms Wong had also initiated with the school what was called an Illness/Misadventure Appeal in relation to the school's internal assessments. As has been noted above, in 2007 Ms Wong had also sought internal school review of her assessments in 2 Unit Chemistry and had lodged an Assessment Rank Appeal in relation to Chemistry in 2007 which the Respondent declined.

The School Assessment Illness/Misadventure Appeals

152 By a letter dated 5 November 2008 addressed to 'The Assessment Review Panel' (which we infer is an internal school panel) and accompanied by two forms from the school headed 'Year 12 Illness/Misadventure", Ms Wong made her Illness/Misadventure Appeal concerning the school's internal assessments for English Advanced and Modern History in 2008. In that letter she stated:

"In the light of the diagnosis [of joint hypermobility and low muscle tone] and the severe impact it has made in my written examinations, in particular English and Modern History where I was unable to complete the papers, I am requesting a review of my school ranking for these subjects. This is crucial, as the Board of Studies may use the moderated school assessment marks as my HSC exam marks if the rest breaks proved inadequate in addressing my problems. ...

I sincerely hope that the reviewing committee will investigate this matter with fairness, understanding and compassion so that my ranking can reflect my true ability. The Board of Studies advised me that sitting for an examination with an undiagnosed condition is itself a misadventure, thus in light of the diagnosis and the evidence of its impact, a review of my ranks is necessary. ...

153 The school review panel considered Ms Wong's application although it was well outside the time specified by the school for an illness/misadventure appeal in respect of the trial examinations. It determined that Ms Wong's ranking in Modern History should be adjusted from equal 21st to equal 6th and in English from equal 11th to equal 10th. As the Tribunal understands it, this would necessarily involve an increase in Ms Wong's assessment mark in each subject.

154 By email dated 24 November 2008 attaching a letter, Ms Wong appealed to the Headmistress seeking a further improvement in her ranking in English Advanced. The email stated in part:

"Please find attached my letter regarding the English Ranks Appeal. The school of medicine has emphasised that the Educational Access Scheme [this appears to be the "EAS" referred to in Mrs Wong's conversation of 27 October 2008 with Ms McCaslin quoted above] is not applicable to the Combined Medicine Degree, thus an appropriate revision of my ranking in English is crucial. It is my hope that we can resolve the matter internally, without involving the Board of Studies that requires all documents by Friday 28th November."

155 This second appeal in relation to English Advanced was rejected by the school review panel. The Headmistress advised Ms Wong that her appeal had been considered carefully, processes had been reviewed and it had been decided that the outcome of the original appeal was fair and reasonable and that there would be no further changes to rank.

156 Ms Wong appealed to the Board of Studies.

The 2008 Assessment Rank Appeal

157 Ms Wong lodged a form headed '2008 Higher School Certificate Examinations Application for School Review of Assessment Ranking' in respect of English Advanced and accompanied by a letter dated 26 November 2008. The ground ticked by Ms Wong as being the ground relied upon was that 'there are computational or other clerical errors in the determination of the assessment mark' and added in handwriting after these printed words was:

"when applying the illness and misadventure process".

158 The form contained the same notation as the 2007 concerning there being no appeals against the marks awarded for assessment tasks. Ms Wong's letter in support contained the following:

"Based on such results [this refers to the preceding analysis of her English assessment marks]. I believe that I should have obtained a mark above 90% in the English trial examinations had I not been affected by the writing difficulties and the associated anxiety. As the trial examinations constitute 30% of my internal school mark, my underperformance of 10-12% in trials is equivalent to a loss of 3 to 3.6 marks to my internal school mark. My raw mark for English, before any adjustment, is 91.2. On the basis of these evidences provided which account for my underperformance in the trials, my adjusted internal English mark should be in the range of 94.16 to 94.76. This is consistent with the 94.2% I averaged for all assessment tasks when the trial examination marks are excluded. As mentioned earlier, if one only considers the assessment tasks limited to one hour, the average is 96.5%. If adjustments were made by considering the above, my school ranking would better the equal 10th position I currently possess as my unadjusted raw mark of 91.2% places me equal 11th.

I am seeking entry into the Combined Bachelor of Science (Advanced)/Bachelor of Medicine degree at the University of Sydney, which requires a UAI of 99.96 or 100 to be invited for an interview. In previous years, up to 15 marks only could be lost to gain a UAI of 100, thus the possibility of losing ten marks in English alone diminishes my chances of attaining the UAI required for my desired course and the automatic scholarship offered by the University of Sydney for a UAI of 99.95 or 100. If the Board of Studies decides to use my school assessment mark as HSC mark, then the proper adjustment of my school rank in English is even more critical."

159 The Respondent considered the Assessment Rank Appeal and found that the school had applied illness/misadventure processes appropriately and that there was no basis for the appeal. Ms Wong was informed that this appeal had been declined by letter dated 17 December 2008.

Internal Review of the Board of Studies' Declining of the Appeal

160 On 22 December 2008, Mrs Wong spoke to Ms Taylor, Director, Curriculum and Assessment, of the Respondent and requested an internal review of the Respondent's decision to decline the appeal against the assessment rank order submitted by the school for Mrs Wong's daughter in English (Advanced). On 23 December 2008, Ms Taylor wrote to Mrs Wong informing her that the review would be conducted in the week beginning 5 January 2009 and that she could submit further evidence relevant to the appeal by 2 January 2008.

161 Ms Wong and her mother provided written material, in the form of a letter to Ms Taylor, in support of her application for review to the Respondent on about 6 January 2009. That letter, however, did not in substance make submissions in relation to the review of the rejection of the Assessment Rank Appeal for English Advanced. Rather it put forward the approach which Ms Wong and her mother contended that the Board should take, namely, substituting Ms Wong's HSC exam marks for her school assessment marks in English Advanced and Modern History and, perhaps, all other subjects after having made some 'appropriate adjustment' to those examination marks to take account of the extent to which the special provisions accorded Ms Wong did not fully address her problem. The letter contained the following:

"We submit the following to further support the request for the Board of Studies to consider using Sarah's examination marks for all subjects for calculating of her UAI. Additionally, where her examination marks were affected by writing difficulties and associated anxieties, we seek an appropriate adjustment to her results to reflet her true ability had the suitable examination provisions been granted.

While we pleaded with the Board of Studies for the use of a typewriter in Sarah's Modern History and Advanced English examinations, we were advised of the approval of the use of a writer less than two days before the commencement of the Advanced English papers. Due to the short notice, Sarah did not use the writer provision. The Board of Studies reassured us that should the rest breaks provision prove to be insufficient, the school assessment mark would be used. The concern we expressed to the Board of Studies regarding the school's unwillingness or inability to accurately assess Sarah's ability and assign her a rank that reflected her ability has transpired. This is evidenced by her (much) superior examination marks achieved under misadventure. ... As the appropriate provision of a typewriter was not granted, her true ability was not reflected in these examination marks. In light of the difficulty obtaining a fair and accurate ranking for Sarah through the school, we seek the intercession of the Board of Studies to adjust Sarah's examination marks to better reflect her ability should misadventure provisions have been sufficient to overcome her difficulties. We believe this principle of care balanced with fairness has been appropriately adopted by the Board of Studies for students with disabilities when using school assessment marks. We have made numerous requests for this provision to be made available to Sarah prior to the release of the HSC results and were repeatedly asked to submit an appeal to the school. This has now proven to be futile.

...

It is our hope that the Board of Studies will consider allowing students such as Sarah to use their external examination marks only if evidence show that the student is not given a fair and proper environment to undertake their assessments or if the student is subjected to prejudiced and erroneous marking, and the school does not take proper steps to rectify the problems. The system of non intervention in school marking by the Board of Studies while insisting student to use these assessment marks will continue to open the system to abuse."

162 An independent review of the matter was carried out by two senior officers of the Respondent. The review concluded that the Assessment Rank Appeals Panel considered the evidence submitted by Ms Wong and by the school and that the Panel's decision should stand. This decision was conveyed to Ms Wong in a letter from the Respondent to Ms Wong of 17 February 2009 and signed by Dr John Bennett, General Manager. In that letter, Ms Wong was advised that if she was not satisfied with the decision she could apply for reconsideration under s 97 of the Education Act 1990 (NSW).

Section 97Reconsideration

163 By an undated letter sent on or about 4 March 2009, Mr and Mrs Wong sought, in effect, a reconsideration under s 97 of the decision on review. They were acting under a document signed by Ms Wong dated 28 February 2009, headed 'Power of Attorney', authorising them to do so.

164 The reconsideration by the Board was carried out by the Board Appeals Committee which convened on 5 May 2009. Mr and Mrs Wong presented 21 pages of written submissions to the Committee and were given an oral hearing on 5 May 2009.

165 The Committee unanimously decided that the Board's decisions in relation to the Assessment Rank Appeals for 2 Unit Chemistry (in December 2007) and English Advanced (in December 2008) should be affirmed. By letter dated 5 June 2009, Dr Bennett conveyed the Committee's decision to the Wongs. In that letter it was noted that under s 92(2) of the Education Act the Board's decision in relation to a request for reconsideration was final.

166 At the Wongs' request, a copy of the Committee's report was made available to them under cover of a letter of 21 July 2009. That report contained the following which outlines the issues raised by the Wongs and the Committee's approach:

'Under Section 97 the Board can confirm, reverse or vary the decision which is the subject of a request under that section. In the Board's view, the exercise of these powers is limited by the nature of the decision that is the subject of a Section 97 request. ... Consequently, this Committee is only entitled to consider the matters relevant to the assessment ranking review conducted at Abbotsleigh: ie

(a) that the weightings specified by the school in its assessment program conform with the Board's requirements as detailed in the relevant syllabus; and/or

(b) that the procedures used by the school for determining the final assessment mark comply with its stated assessment program; and/or

(c) that there are no computational or other clerical errors in the determination of the assessment mark

The Committee is also entitled to consider if the conduct of the review by Abbotsleigh was proper in all respects.

...

MATTERS TO BE ADDRESSED

A distillation of all the information provided by the Wongs has identified a number of key issues that Mr and Mrs Wong perceived to be within the Board's jurisdiction:

1) That he School made an error when calculating Sarah's final English mark following her school Assessment Review.

2) That the school used inappropriate assessment tasks when calculating a mark for Sarah, after upholding her school Illness/Misadventure appeal in English and Modern History.

3) That the school engaged in prejudicial marking practices against Sarah in English and Chemistry.

4) That, due to the above two points, the assessment marks for Sarah are flawed, and he should consequently be permitted to have her HSC marks based on her examination results only.

5) That Sarah's examination marks should be increased as she was not permitted to use a personal computer during her HSC examinations.

6) That the Board is required to 'regulate' assessment marks.

In this Committee's view the bulk of the matters just mentioned are not relevant to the task that it is required to undertake under Section 97 of the Education Act. Only point (1) is relevant, under point (c), above, and the Committee members are confident that the calculations undertaken by the school are correct. That said, and while, as a matter of law, this Committee is not required to give reasons for the determination referred to above, what follows deals with each of the six matters referred to above. In part this course has been so that Mr and Mrs Wong and Sarah appreciate that their concerns have been addressed, and in part, and adopting their own words, to effect some 'closure'.

[The report then set out the Committee's reasons for affirming the decisions, addressing in turn each of the six matters itemised]"

167 As noted above, on 20 January 2010, Mrs Wong lodged the complaint on behalf of her daughter with the President of the ADB.

Relevant Statutory Provisions

168 Ms Wong's complaint is that the Respondent has indirectly discriminated against her on the ground of disability in the provision of services. Disability discrimination in the provision of services is dealt with in s 49M of the ADA which provides:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(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.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

169 "Disability" is defined in s 4(1) of the ADA to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

170 The concept of disability is expanded in s 49A of the ADA as follows:

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

171 What constitutes discrimination 'on the ground of disability' for the purposes of s 49M is set out in s 49B of the ADA. The relevant provisions of that section include:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, 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.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

172 As Ms Wong only alleges indirect discrimination in this matter, it is only s 49B(1)(b) which is applicable.

Issues Arising Under s 49M

173 In respect of each claim of disability discrimination made by Ms Wong, the following issues arise for determination under s 49M:

(a) Did Ms Wong have a disability within the meaning of that term in the ADA?

(b) Was the Respondent providing services (for payment or not)?

(c) Did the Respondent discriminate against Ms Wong by refusing to provide those services to Ms Wong or in the terms on which they were provided to her?

(d) Did the Respondent discriminate against Ms Wong on the ground of disability?

174 Each of these issues will be dealt with in turn.

Did Ms Wong have a disability within the meaning of that term in the ADA?

175 An initial issue is whether Ms Wong suffered from a disability within the meaning of s 4(1) as expanded by s 49A of the ADA. Ms Wong relied in particular upon s 4(1)(c) of the definition, submitting that her condition constituted or led to the 'malfunction ... of a part of' her body.

176 The Respondent submitted that Ms Wong's medical conditions did not amount to a 'disability' within the meaning of that term in the ADA. In particular, it was said that Ms Wong had not presented sufficient evidence to establish that the medical conditions identified by the occupational therapist amounted to a 'malfunction' and further that an examination of the medical conditions and their effect did not disclose a sufficient failure to function in a normal or satisfactory manner.

177 The medical evidence as to disability was very limited and only included the report of the occupational therapist and the physiotherapist submitted to the Board of Studies in September 2008 and Dr Kucera's comments submitted to the Board of Studies in October 2008. The Tribunal finds, as indicated above, that the short report of Associate Professor Gumley was of no specific relevance to the issue of Ms Wong's functional ability in 2008. In any event, none of these was called to give evidence and no updated reports specifically for the purposes of this proceeding was provided. Further, Ms Wong appears to have received no treatment for her condition. Nonetheless, in the absence of any evidence to the contrary the Tribunal is satisfied that, as reported by the occupational therapist and the physiotherapist in 2008, Ms Wong suffered in summary from low muscle tone in her hands and joint hypermobility in her thumb and hand. This resulted in her ability to function being impeded by reduced grip strength which led to her holding her pen with a restrictive grip, muscle spasm or cramping after writing continuously from more than approximately 30 or 40 minutes and decreased writing speed after that period. Further we accept that Ms Wong's hand writing speed was also detrimentally affected by notable ulnar deviation.

178 Ms Wong's essays and results that were before the Tribunal showed some deterioration in length and quality the later the essay was apparently written during an examination. Ms Wong attributed this to her difficulties with her hands and wrist and the pain, fatigue and cramping which she suffered. The evidence of her written work is consistent with the therapists' diagnosis and with a degree of functional impairment compared to normal functioning which is more than minimal.

179 In addition, Ms Wong reported that, because of her physical problems with writing and especially her fatigue and decreased writing speed after about 40 minutes of sustained writing, she became anxious and concerned about her ability to complete the extended responses to the best of her ability. There was, however, no medical or psychological evidence to support the conclusion that this was more than a normal reaction of a student to time pressure in an examination. In the circumstances, the Tribunal does not believe there is a sufficient basis to conclude that this anxiety forms a separate ground of disability beyond any disability inherent in or flowing from her low muscle tone and joint hypermobility.

180 Paragraph (c) of the definition of 'disability' in s 4(1) of the ADA which refers to the 'malfunction ... of a part of a person's body' is in substantially the same terms as paragraph (e) of the definition of 'disability' in s 4 of the Disability Discrimination Act 1992 (Cth) (the DDA). This aspect of the DDA definition of 'disability', among others, was considered by the High Court in Purvis v New South Wales (2003) 217 CLR 92. Although in the minority in the ultimate outcome, McHugh and Kirby JJ made comments on paragraph (e) of the definition of disability in the DDA which were not rejected by the majority and are applicable to paragraph (c) of the definition of disability in the ADA. Their Honours held at [70]:

"Paragraph (e) states that disability means "the malfunction ... of a part of the person's body". This paragraph also focuses on functional ability, rather than underlying cause. "Malfunction" is defined in dictionaries to mean "a failure to function in a normal or satisfactory manner"[The Australian Oxford Dictionary, (1999) at 816.] (emphasis added) or "failure to function properly" [The Macquarie Dictionary, 3rd ed (1997) at 1304.] (emphasis added). Mr Hoggan's brain malfunctions. His condition therefore falls within the definition of disability in par (e)."

181 The Respondent relied upon the Federal Court's decision in Zoltaszek v Downer EDI Engineering Pty Ltd [2011] FCA 744 which was a case in which Mr Zoltaszek had alleged disability discrimination under the DDA. In that case, it was found there was evidence of mild scoliosis and 'changes' to Mr Zoltaszek's back and 'changes' in his right and left elbows. The Tribunal understands these 'changes' to refer to changes of the type observable on x rays of the spine and elbow joints. There was, however, no medical evidence as to the impact of these 'changes' on his functional ability or his ability to do work. The Federal Magistrate found that Mr Zoltaszek had not established that he suffered from a disability. On appeal, Flick J reviewed the evidence and concluded that the Federal Magistrate was correct and that the material demonstrated 'the lack of evidence ... as to the seriousness of the conditions of which [Mr Zoltaszek] complains'. While the Tribunal accepts the correctness of this decision, the circumstances in the present case are different. Here, there is evidence from Ms Wong herself, her teachers, the therapists and a doctor of the functional effect of Ms Wong's condition upon her ability to write for prolonged periods under examination conditions. None of this evidence was objected to nor was the substance of it challenged by evidence to the contrary or in cross examination of Ms Wong.

182 From the evidence and from its own experience, the Tribunal is satisfied that persons without Ms Wong's condition are normally able to write for periods exceeding 40 minutes without pain, muscle spasm or cramping of the type and to the extent suffered by Ms Wong. Applying the same approach as adopted by the High Court in Purvis to the present case, the Tribunal finds that, because of her low muscle tone and joint hypermobility, Ms Wong's hand and fingers did not function in a normal or satisfactory manner.

183 As a result, the Tribunal concludes that Ms Wong suffered from a disability within the meaning of paragraph (c) of the definition of 'disability' in s 4(1) of the ADA.

Was the Respondent Providing Services?

184 'Services' is given an inclusive definition in s 4(1) of the ADA and provides that 'services provided by a council or public authority' are included in the meaning of that word. It is not necessary, however, to consider the meaning of 'services' further in this context as the Respondent conceded that it was 'a person who provides ... services' within the meaning s 49M.

185 In its written submissions the Respondent also accepted that in managing the HSC examinations it provided 'services' to Ms Wong and, presumably, to other students sitting for those examinations. In the present case, the Tribunal finds that these services relevantly included the specific services inherent in:

(a) administering and conducting various timed, written HSC examinations;

(b) administering the Special Provisions program, including receiving and assessing applications, notifying of decisions and dealing with appeals;

(c) administering the Illness/Misadventure Appeals program including receiving and assessing appeals, notifying of decisions and dealing with applications for review of decisions;

(d) administering the Assessment Rank Appeals program including receiving and assessing appeals and notifying of decisions;

(e) reconsidering decisions under s 97 of the Education Act.

186 Ms Wong in her submissions identified the services supplied by the Respondent relevant to her two claims in the following terms: the 'HSC examination service'; and the 'examination mark adjustment service' respectively. The 'HSC examination service', as we understand it, includes the services covered by both subparagraphs (a) and (b) in the preceding paragraph and can be described as the HSC and Special Provisions Services.

187 The 'examination mark adjustment service' appears to be an attempt to refer to the services covered by subparagraph (c) above being the services inherent in administering the Illness/Misadventure Appeals program. To call it a mark adjustment service is, however, in the Tribunal's view, a misunderstanding. Whilst results for the Higher School Certificate may, if an Illness/Misadventure appeal is successful, be calculated by reference only to the school assessment mark and not by reference to both the school assessment mark and the HSC examination mark as would normally be the case, it does not follow that the services provided by the Respondent are a mark adjustment service. The services provided by the Respondent are relevantly, facilitating the making of an Illness/Misadventure appeal in respect of an HSC examination, receiving and considering the appeal according to its procedures and guidelines and informing the student of the Respondent's decision whether or not to uphold the appeal. If an appeal is upheld this may have the consequence that the student's HSC results are calculated disregarding the examination results adversely affected by the illness or misadventure. The Respondent does not adjust the examination marks generally or by reference to the nature of the illness or misadventure found to have been established and the effect that this may or may not have had on the student's examination performance. Similarly, there is no process available by which the Respondent itself adjusts the school assessment mark. On this basis, the Tribunal rejects the contention that the Respondent provides mark adjustment services, whether as a result of Illness/Misadventure appeals or otherwise. The services inherent in the administering the Illness/Misadventure appeals is more accurately referred to as the Illness/Misadventure Appeal Services.

188 Consistent with this, Ms Wong's claims can be referred to as the HSC and Special Provisions Claim and the Illness/Misadventure Appeal Claim.

189 Having identified the services the subject of each claim made by Ms Wong it is more appropriate from this point on to deal with Ms Wong's two claims separately. Accordingly, all of the remaining issues in relation to the HSC and Special Provisions Claim will be addressed first then the Tribunal will consider those issues in relation to the Illness/Misadventure Appeal Claim.

The HSC and Special Provisions Claim

Did the Respondent discriminate against Ms Wong by refusing to provide services to Ms Wong or in the terms on which they were provided to her?

190 Section 49M(1) only prohibits two types of discrimination against a person on the ground of disability, namely:

(a) discrimination by refusing to provide the person with services; and

(b) discrimination in the terms on which the person is provided with services. Unlike other provisions such as s 49K(1), disability discrimination in the manner in which services are provided is not prohibited by s 49M(1). Accordingly, if a contravention of s 49M(1) is to be found, it is necessary that at least one of those two types of discrimination identified above has occurred.

191 As we understand it, Ms Wong's position was that her HSC and Special Provisions Claim was not based upon an allegation of a refusal of supply. In her final written submissions, she said:

"[4]b. ... The service I identified is not about refusal of the SEP [special examinations provision]. My claim is about my inability to meet the requirement of HSCES [HSC examination service] ... due to my writing disability. The respondent has a legal responsibility to properly accommodate for my disability with the best and most appropriate provision.

...

6.My discrimination claim (1) is that the respondent provided me the HSC Examination Service (HSCES) on unfavourable terms, as I have a writing disability, and I could not comply with the intrinsic requirements (the requirement imposed was the terms of service) of the HSCES. The HSCES requirement was not reasonable having regard to the fact that my disability was not properly accommodated with the best and most appropriate mean."

In her earlier submissions, Ms Wong had also said:

"The respondent was also ultimately entrusted with the responsibility of supporting the disabilities of HSC students of all academic abilities, by providing effective and appropriate provisions so that disabled students were not prevented from communicating their responses in the set time limit in HSC examinations. As such, the respondent should and could have easily approved me the computer provision for writing intensive subjects, requested formally on 15 October 2008 by my doctor, or extra time to write and rest requested by my therapists on early September 2008 for Science and Mathematics papers, where typing were no possible"

192 This formulation of the complaint, however, presents a difficulty in that the substance of the complaint appears to be that the Respondent did not properly accommodate for her disability with the best and most appropriate provision being, according to Ms Wong, computer provision. This submission can readily be understood as a complaint that the Respondent refused to grant the special provisions requested or, in other words, a discrimination by refusal to supply services. In these circumstances and in case we are wrong in our understanding and Ms Wong did wish to put forward a case based upon discrimination by refusal to supply we shall briefly address the question of discrimination by refusal of supply as well as in the terms of supply.

193 To the extent that Ms Wong was submitting that by refusing to approve her application for computer provision for the writing intensive subjects (and extra time to write for other papers) the Respondent refused to provide services to her, the Respondent submitted that in this regard Ms Wong's submission was in substance no more than a complaint 'about the way that discretion [that is, the discretion as to which special provisions should be granted] was exercised. ... [T]his is not sufficient for the purposes of s 49M(1)(a)'.

194 The services that the Respondent provided and which are relevant to this aspect of the case included administering the Special Provisions program. Administering that program involved the exercise of a discretion whether to grant special provisions or not and, if so, what types of provisions.

195 An issue is whether the Respondent, by refusing to exercise its discretion in favour of the particular type of special provision sought by Ms Wong, should be found to have refused to supply services under s 49M(1)(a).

196 A similar matter arose for consideration by the High Court in IW v City of Perth (1997) 191 CLR 1. The principal issue in that case was whether the City of Perth unlawfully discriminated against an association formed to support persons with AIDS (of which IW was a member) by refusing planning approval for premises, zoned for shopping use, to be used as a drop in centre for persons infected with HIV. The Appellant relied upon s 66K(1)(a) and (c) of the Equal Opportunity Act 1984 (WA). Section 66K(1) is similar to s 49M(1) of the ADA and provided in part:

"(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's impairment -

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person."

197 After a report was prepared by the City Planner and considered by the Town Planning Committee of the Council, the matter was eventually referred to the Council for determination. By majority the Council rejected a motion to approve the application for a 12 month trial period and gave no reasons for its decision. The association, and a number of its members including IW, complained of discrimination to the Commissioner for Equal Opportunity who referred the matter to the Equal Opportunity Tribunal which upheld the complaint. An appeal to a single judge of the Supreme Court was dismissed but on appeal to the Full Court the decision was reversed on the basis that the Tribunal had made an error of law. On further appeal to the High Court, the majority, Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ, dismissed the appeal.

198 Brennan CJ and McHugh J analysed the situation as follows ((1997) 191 CLR 1 at 16-17):

"In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided. However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.

... Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals. Certainly the process was not an 'exercise of a discretion to give planning approval to allow the use of premises for a particular purpose in a specific locality' (emphasis added) as the Tribunal held. Consequently, the Tribunal erred in law and the Full Court, although for different reasons, was correct in setting aside the Tribunal's decision."

199 Adopting an approach similar to that of the association and IW, one could argue that it was the refusal to approve the application for computer provision and extra time to write that was the refusal of the service by the Respondent. Brennan CJ and McHugh J's reasoning suggests that this is in error. The proper analysis should be that the Respondent did not provide a service of approving or refusing approval for the particular special provisions sought by applicants. The Respondent merely had a responsibility to consider applications and a discretionary power to refuse or approve the special provisions sought or to grant other provisions. This responsibility the Respondent discharged in Ms Wong's case. Thus, there was no refusal to supply services.

200 The reasoning of Dawson and Gaudron JJ is to the same effect and leads to a similar conclusion. Their Honours held ((1997) 191 CLR 1 at 24):

"The appellant's argument that the first respondent's refusal of planning approval was a refusal to provide a service cannot be sustained. Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that was a refusal of planning approval. Rather, it is necessary to show a refusal to consider whether or not approval should be granted. And that case is foreclosed by the very matter of which the appellant complains, namely, the Council's refusal to grant approval."

201 In the present case, there was no refusal by the Respondent to consider Ms Wong's various applications for special provisions nor was there any refusal to supply services associated with the HSC examinations themselves. Consequently, there was no refusal to supply services within the meaning of s 49M(1)(a) merely because Ms Wong's application for computer provision (and extra time to write) was refused after due consideration.

202 On our understanding of Ms Wong's submissions, she accepts the conclusion referred to in the preceding paragraph and her point is rather that the Respondent nonetheless discriminated against her in the terms on which the HSC Examination and Special Provisions Services were provided to her, within s 49M(1)(b). This was said to be because the Respondent provided her with the HSC Examination and Special Provisions Services on unfavourable terms. These unfavourable terms were identified by Ms Wong as the requirements (identified below in relation to the discussion of s 49B(1)(b) of the ADA) that:

(a) Ms Wong communicate within the set time limit her responses reflecting her ability and knowledge; and

(b) she submit responses (handwritten by herself or a writer) not ones typed on a computer.

203 The substance of Ms Wong's submission in this regard was that the discrimination against her lay not in the refusal of special provisions sought but in the fact of requiring her to comply with requirements without the benefit of adequate special provisions. While it is perhaps usual for discrimination to be identified by reference to differential treatment (as occurs in 49B(1)(a)) such that in considering discrimination against a person in the terms of supply under s 49M(1)(b) one would look for different and unfavourable terms being imposed, it appears to be possible to discriminate by imposing the same terms on persons whose circumstances require the imposition of different terms in order to achieve equal or non-discriminatory treatment. It can be accepted, as the Respondent submitted, that the terms which constitute the discrimination in terms referred to in s 49M(1)(b) are conceptually different from the requirement imposed by the perpetrator falling within s 49B(1)(b). It does not follow, however, that they can never be in fact the same term or requirement, which can be characterised in the two conceptually different ways.

204 If s 49M(1)(b) could construed as including discrimination in terms by way of not only applying different and unfavourable terms but also applying the same terms when circumstances dictated the application of different terms in order to be non-discriminatory, the Tribunal could conclude that this element of Ms Wong's claim might be established. What would, however, need to be proved in addition to satisfy the requirement of s 49M(1)(b) of discrimination in terms of supply is that, in Ms Wong's case, her circumstances did actually require the application of different terms in order to be non-discriminatory.

205 In this regard, Ms Wong's case was in substance that she was entitled to more favourable special conditions, namely being allowed to type her answers on a computer (and/or more time to write), than she was actually granted because of the nature and extent of her disability. To establish this it would be necessary for her to show as a matter of fact that computer provision was necessary so that Ms Wong was not effectively prevented from communicating her responses in the set time limit in HSC examinations. If the special provisions sought by a student were neither required by, nor appropriate for, the student, then it is difficult to see how to require the student to comply with the requirements without those special conditions would amount to discrimination against that person in the terms on which the HSC and Special Provisions Services were provided within s 49M(1)(b).

206 In the present case, this raises the question of whether the provisions granted by Respondent to Ms Wong were sufficient or were some additional provisions necessary and appropriate. The Respondent granted special provisions by way of extra time to rest, the alternative of using a writer (with extra dictation time) and separate supervision for all examinations. In addition, if Ms Wong experienced difficulties using a writer in the initial examinations before she had had time to practise dictating, this could form the basis for an Illness/Misadventure appeal. The Tribunal must consider the evidence concerning the sufficiency of the provisions granted, if taken to their fullest extent and with the potential for an Illness/Misadventure Appeal if the early examinations using a writer proved unsatisfactory.

207 There is no doubt that Ms Wong formed the view on 16 October 2008, in part at least because of the Respondent's failure clearly to explain the use that could be made of the writer provision in conjunction with the extra rest time provision in one examination, that the provisions granted would be unsatisfactory. She did not try to use the writer and extra time to dictate provision in any of her HSC examinations. The evidence was silent as to why Ms Wong did not use, or attempt to use, the writer provision in the examinations which took place more than a day or two after the decision to grant such provisions was notified to her. It was also silent as to why Ms Wong did not seek additional special provisions after the provisions granted on 16 October 2008 were found by her to be inadequate on 17 October 2008. Moreover, the forms submitted by the supervisor of her HSC examinations indicate that Ms Wong did not use the extra time to rest provision to the fullest extent possible in any relevant examination.

208 As a consequence, there was no evidence of what the situation would have been if the provisions had been fully availed of. This is not to criticise Ms Wong for the decisions she made under difficult circumstances. Nor is it to fail to recognise that the Respondent's decision concerning the alternate use of a writer and extra time to rest was not clearly communicated to Ms Wong. Nonetheless, there was an absence of evidence.

209 Furthermore, the Tribunal did not have before it any specific medical evidence or evidence from an occupational therapist to establish the fact that the provisions eventually granted were indeed insufficient in Ms Wong's case. The only relevant medical and therapist evidence is the material submitted to the Respondent before the provisions were granted. From the therapists' report of their assessment on 8 September 2008 and the lack of treatment, it appears that Ms Wong's condition was properly described as mild and not one that required any significant medical treatment or attention before or after the HSC examinations.

210 The only consultation with an occupational therapist or physiotherapist occurred on 8 September 2008 when Ms Wong's condition was diagnosed and their recommendations were as follows:

"Sarah's handwriting difficulties are mild however impact on exam performance has been significant. She would benefit from practicing specific strengthening activities to improve her handwriting quality and endurance. However due to the late diagnosis of her handwriting difficulties, Sarah does not have adequate time to improve her handwriting skills to an appropriate level.

Sarah would currently be disadvantaged in exams that require extended response answers. Trial HSC Examination results were significantly affected by her handwriting difficulty. It is recommended that she receive special provisions from the Board of Studies in the form of extra time for writing and extra time for rest break for her Higher School Certificate Examinations."

211 The only relevant consultation with a medical practitioner was with Dr Kucera on 15 October 2008, prior to the commencement of the HSC examinations. Her diagnosis and comments have been referred to above. Dr Kucera was not called to give evidence nor was any opportunity given to the Respondent to cross examine the doctor as to whether the provisions actually granted could have addressed Ms Wong's problems, if used to the full. Similarly neither the physiotherapist nor the occupational therapist were called or gave any opinion on the adequacy of the provisions granted.

212 For the sake of completeness, the Tribunal notes that the short report from Associate Professor Gumley of 13 December 2011 obtained well after the events the subject of the present case and apparently for another purpose is of no direct relevance and, in any event, is of little if any assistance to Ms Wong, even if it were to be given any weight. Professor Gumley was not called to give evidence.

213 In these circumstances, the Tribunal does not consider that it is in a position to conclude that, in Ms Wong's case, if she had been able to use the provisions granted to the full and had used them, she would have been unable to communicate her responses appropriately or effectively. In other words, the Tribunal is not satisfied that without computer provision Ms Wong was unable to perform to her ability in the same way that persons without her disability could have done. Consequently, Ms Wong has not established that being granted the use of a computer was required or justified in her particular case. On these bases, the Tribunal does not believe that the Respondent's requiring Ms Wong to comply with the conditions identified above using the special provisions granted but without computer provisions (and/or extra time to write) amounted to discrimination against Ms Wong in the terms on which the HSC and Special Provisions Services were provided to her within s 49M(1)(b).

214 Expressing its conclusion another way, the Tribunal is also not satisfied, in the present case, that the guidelines and policies applied by the Respondent have been shown to have had the effect of disadvantaging Ms Wong in such a way as to constitute discrimination against her.

215 For these reasons and in summary, the Tribunal concludes in respect of the HSC and Special Provisions Claim that:

(a) there has not been any relevant refusal to provide services by the Respondent within s 49M(1)(a);

(b) there has not been any discrimination against Ms Wong in the terms on which services were provided to her such as to bring the conduct of the Respondent within s 49M(1)(b).

216 Although the view of the President of the Anti-Discrimination Board played no part in the Tribunal's decision making process, we note that our conclusion is consistent with the President of the Anti-Discrimination Board's decision to decline Ms Wong's complaint, referred to above. Our conclusion is also sufficient to dispose of this claim in the Respondent's favour.

217 Nonetheless, in case we are wrong in this conclusion and there was, contrary to our conclusion, conduct of the Respondent falling within s 49M(1)(a) or (b), the Tribunal will go on to deal with the further issues that arise in this proceeding in relation to the HSC and Special Provisions Claim.

In refusing to provide the services or discriminating in the terms, did the Respondent discriminate against Ms Wong on the ground of disability?

218 The next issue which arises under s 49M(1) is whether by refusing to provide services to Ms Wong or by discriminating against her in the terms of supply, the Respondent discriminated against Ms Wong 'on the ground of disability'. This falls to be determined in the present proceeding by reference to s 49B(1)(b), because Ms Wong only relies upon indirect discrimination.

Indirect Discrimination within s 49(1)(b)

219 Section 49B(1)(b) provides:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

...

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, 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.

220 Thus, the issues which the Tribunal must address under s 49B(1)(b) are:

(a) Did the Respondent require Ms Wong to comply with a requirement or condition?

(b) Was it the case that Ms Wong did not comply or was not able to comply with the requirement or condition?

(c) Was it the case that a substantially higher proportion of persons who did not have Ms Wong's disability complied or were able to comply with that requirement or condition?

(d) Was the requirement or condition not reasonable having regard to the circumstances of the case?

221 In addition, the question of whether any indirect discrimination established as a result of satisfaction of the issues referred to in the preceding paragraph was also required to be 'on the ground of ... disability' must be addressed.

Did the Respondent require Ms Wong to comply with a requirement or condition?

222 Ms Wong identified the condition or requirement with which it was alleged she was required to comply in relation to the HSC and Special Provisions Services in her written submissions as:

(a) 'the Board of Studies in providing the HSC examination service to me required me to communicate my responses (knowledge) unhindered in the set time limit'; or, alternatively

(b) 'the requirement that the examination be undertaken in handwriting'.

223 As to the first formulation, in response to questions from the Tribunal, Ms Wong clarified that the requirement was that within the set time she (and the other students) should communicate their responses so as to be a reflection of their ability and knowledge.

224 The High Court in New South Wales v Amery (2006) 230 CLR 174 at [63] held that the phrase, 'requirement or condition' was to be given a broad rather than a technical meaning, given the nature of the mischief, indirect discrimination, with which the relevant section (corresponding to s 49B(1)(b) in this case) was concerned.

225 Applying this approach, the Tribunal finds that Ms Wong along with the other students (excluding for present purposes those who had special provisions by way of extra time to write) sitting the relevant examinations were required to communicate within the set time limit their responses reflecting their ability and knowledge. Thus, the Tribunal accepts that Ms Wong was required to comply with the first condition identified by her.

226 As to the second requirement identified by Ms Wong, the formulation is ambiguous. If it was intended to convey that Ms Wong was required to complete her examination responses in her own handwriting, it is not correct on a factual level. She had been granted special provision by way of a writer and thus was not required to complete any of her examinations in her own handwriting. The alternative is that the requirement was that Ms Wong and other students (except those granted computer or similar special provisions) sitting the relevant examinations were required to submit handwritten responses. Another way of putting this might be to say that the refusal to allow special provisions by way of use of a computer effectively required Ms Wong to submit responses (handwritten by herself or a writer) not ones typed on a computer. This latter meaning appears to be what Ms Wong intended (transcript 26 April 2012 at page 15 lines 1 to 8, referring back to page 11 line 49 to page 12 line 16). We find that this condition was in Ms Wong's case also imposed or required by the Respondent in relation to its provision of HSC and Special Provisions Services.

227 Accordingly, Ms Wong has established that the Respondent did require her to comply with the requirements or conditions she has identified in respect of the HSC and Special Provisions Claim.

Compliance by Ms Wong with the requirement or condition?

228 The next issue to be addressed is whether Ms Wong complied or was able to comply with the two requirements or conditions we have found above in relation to the HSC and Special Provisions Claim. These were that:

(a) she was required to communicate within the set time limit her responses reflecting her ability and knowledge;

(b) she was required to submit responses (handwritten by herself or a writer) not ones typed on a computer.

229 Although they are conceptually distinct, as a practical matter the Tribunal believes that these requirements or conditions can be considered together.

230 It is true, as the Respondent submitted, that Ms Wong did submit responses for all her HSC examinations handwritten by herself and that she performed very well in all her subjects compared to the vast majority of students sitting for the HSC examinations in 2008. This, however, does not necessarily establish that Ms Wong complied or was able to comply with the two requirements.

231 In Hurst v State of Queensland (2006) 151 FCR 562 the Full Court of the Federal Court of Australia was considering whether a hearing impaired child could be said to be able to comply, within the meaning of s 6 of the DDA, with a requirement or condition that she be taught in English rather than Auslan, a native Australian sign language because of her ability to "cope" without Auslan assistance. Section 6 of the DDA relevantly provided:

"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."

232 Although s 6 of the DDA is in a different form from s 49B(1)(b) of the ADA, the provisions relating to the ability to comply with a requirement or condition are substantially the same in both sections from each Act.

233 The Full Court held at [125] and [134] as follows:

125 ... A hearing impaired child may well be able to keep up with the rest of the class, or "cope", without Auslan. However, that child may still be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel.

...

134 ... 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.

234 Accordingly, it was held that the child in that case was not able to comply with the relevant condition or requirement, namely being taught without the benefit of Auslan, despite her ability to 'cope" in that environment. In Ms Wong's case, she argued that although she had been able to 'cope' with the requirement or condition in that she wrote and submitted her responses and did well, complying with the requirements or conditions had not allowed her to demonstrate the full extent of her knowledge and ability. In this way, complying with the requirements or conditions caused her serious disadvantage. Applying the reasoning in Hurst, it was argued that it should then be concluded that Ms Wong was not able to comply with the conditions or requirements identified, even though she had 'coped' in the examinations.

235 The Tribunal accepts that being able to 'cope' with a condition or requirement does not establish that the person can comply with the condition or requirement for the purposes of s 49B(1)(b), and similar anti-discrimination provisions, if that person suffers serious disadvantage as a result of complying. The question in Ms Wong's case then is: Has she established that she has suffered 'serious disadvantage' as a result of complying with the two requirements. In this regard, it can be noted that in Hurst the Full Court rejected the submission that any 'non-trivial' disadvantage would be sufficient to establish an inability to comply (see (2006) 151 FCR 562 at [120]).

236 Once again, the evidence was somewhat meagre in that there was no medical evidence, evidence from the therapists or evidence from an educational expert that Ms Wong suffered serious disadvantage. In addition, as already noted above, there was no evidence as to what the situation would have been if Ms Wong had made full use of the special provisions actually granted to her in some or all of the examinations. Ms Wong and her mother clearly believed she could have performed considerably better if she had not been required to handwrite her responses herself but had been allowed to type them on a computer. Ms Wong explained how, as a result of cramping, fatigue and pain, her extended responses written towards the end of a two or three hour examination were shorter and less detailed than essays written earlier during the examination period and in some cases they were effectively unfinished. From the samples of her work that were before the Tribunal, the essays written later during an examination do appear to suffer from the defects identified compared to essays written earlier. In addition, the analysis of her results suggests a similar pattern.

237 In the circumstances, the Tribunal finds that 'coping' with the requirements in the way that she did, that is not using the writer provision at all and not using all of the extra time to rest, Ms Wong did suffer serious disadvantage in complying with the requirements or conditions imposed by the Respondent. It is likely that she would have performed better in the relevant HSC examinations, if she had not 'coped' with the requirements in the way that she did.

238 On the basis that her 'coping' with the requirements in the way that she did (as a result, inter alia, of the late and unclear communication of the granting of the writer provision) caused sufficiently serious disadvantage, the Tribunal is prepared to conclude that Ms Wong was not able to comply with both the requirements identified above within the meaning of s 49B(1)(b).

239 The comments in the preceding paragraph as to the lateness of the communication of the Respondent's decision to grant special provisions by way of a writer is merely a reference to the fact that the decision was communicated the day before her first examination. For this, the Respondent was not to blame. It had dealt with the original appeal and the new application for computer provision in a very prompt and efficient manner. Indeed, Ms Wong in her evidence conceded that the Respondent was not to blame for when its decision to grant provision by way of a writer was made.

Compliance by a substantially higher proportion of persons without the disability?

240 The Tribunal now turns to consider whether a substantially higher proportion of persons who did not have Ms Wong's disability complied or were able to comply with the two requirements or conditions we have found above in relation to the HSC and Special Provisions Claim. These were:

(a) she was required to communicate within the set time limit her responses reflecting her ability and knowledge;

(b) she was required to submit responses (handwritten by herself or a writer) not ones typed on a computer.

241 Once again, as a practical matter, the Tribunal will deal with both of these conditions together.

242 The statutory wording in s 49B(1)(b) is 'a requirement or condition with which a substantially higher proportion of persons who do not have that disability ... comply or are able to comply'.

243 Dawson J held in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 187 concerning the provisions of s 24(3) of the ADA, which at that time relevantly corresponded with s 49B(1)(b):

But a proportion must be a proportion of something, so that it is necessary to determine the appropriate grouping or pool within which to calculate the proportions which are to be compared. The English cases have discussed in detail the problems associated with the determination of an appropriate base group. Two main contrasting approaches can be identified. One seeks to narrow the base group to the particular group of persons to whom the requirement is directed, while the other seeks to establish a broader base beyond the immediate context. The need to select an appropriate base group, which may be limited to the immediate context, was recognized in Kidd v. D.R.G. (U.K.) Ltd. (1985) I.C.R. 405, at p 409, where Waite J., in delivering the decision of the Employment Appeal Tribunal, held that:

'... for the purposes of the statutory comparison, like must be compared with like in a context appropriate to the case under review. The consequence is that the particular section of the members of the public upon whose lives the impact of the relevant requirement or condition has to be measured is liable to vary from case to case - ranging from the population as a whole at one end of the scale to employees of a single work-place at the other: and there is liable also to be ample scope for debate in many instances as to which section of the public within that range is the right one to choose for a particular case.'

As that passage indicates, the contextual approach will provide different answers depending upon the circumstances of each case. For example, where a requirement is contained in a published offer of employment, the relevant base group may be made up of those who might be expected to be eligible to take up the employment based upon geographical, educational and other restraints. Similarly, where a requirement is imposed upon existing employees, the relevant group may be the class of employees affected.

244 Further, in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 120 Sackville J identified a number of applicable principles for determining the base group or pool in a case of indirect discrimination. First, the base groups appropriate to particular cases will vary according to the context. Secondly, the selection of the base group should be calculated to reveal the significance, if any, of the relevant ground of discrimination (for example sex, race or disability) to compliance and, thirdly, the decision to select a particular base group involves a mixed question of fact and law.

245 In the present case, the base group can perhaps more easily be determined because of the well defined nature of the group affected by the condition or requirement, namely students sitting for the relevant HSC examinations in 2008. In this claim, the relevant examinations were English Advanced and Modern History.

246 Some general information concerning student numbers was in evidence. The Report prepared by Ms J Keightley for the Respondent and titled 'Special Provision Program 2008 Audit', which was before the Tribunal, disclosed that the total candidature for the 2008 HSC examinations was 65,759. From the Performance Bank Descriptors 2008 Higher School Certificate published by the Respondent on the internet which was before the Tribunal, it appears that the 2008 candidature for 2 Unit Modern History was 9686 and for 2 Unit English Advanced was 27,459.

247 Ms Keightley's report also provides information on special provisions noting that there were 4,613 applications for some kind of special provisions in respect of the 2008 HSC examinations. The special provisions requested were granted to 3,281 students and 1,173 were granted some but not all of the provisions sought or alternative provisions. 159 applications for special provisions were entirely declined. Mr Ford gave evidence about these matters and his numbers were approximately, though no exactly, the same: 4,621 applications for special provisions; 3,207 approved for all provisions sought; 1,156 partially approved and 159 declined. As to the particular types of special provisions that are relevant in this matter, Ms Keightley's figures can be found in her report. Ms Keightley figures are as follows and Mr Ford's follow in brackets:

(a) use of a writer was granted to 1,852 (1,873) students;

(b) extra time to rest was granted to 2,565 (2,567) students;

(c) extra time to write was granted to 1,374 (1,464) students;

(d) use of a personal computer was granted to 184 (193) students and 208 requests for this provision were declined.

It was not suggested to the Tribunal that anything turned on the discrepancy and it was not explored or explained.

248 In relation to the question of what proportion of the 2008 HSC students in the relevant subjects who did not have Ms Wong's disability could comply with the conditions or requirements in relation to responding within the time limits by way of handwritten responses, Ms Wong's case was put in general terms rather than relying upon any detailed statistical analysis. In her points of claim, Ms Wong in effect submitted that those 2008 HSC students who did not apply for special provisions should be found to have been able to comply with the two conditions or requirements under consideration. It was also submitted that they did not suffer from Ms Wong's type of disability. In her written submissions Ms Wong made a further submission to the effect that for the majority of those students who were granted special provisions for the 2008 HSC, those provisions enabled them to comply with the two conditions or requirements which have been identified above.

249 The Respondent submitted that Ms Wong had presented no evidence to ground the assertions that those who did not apply for special provisions were able to comply with the conditions and that those who did not apply did not have Ms Wong's disability. Further it was said in substance that she had not correctly constructed the sub-group to which she belonged and which would provide the comparator for the comparison of the proportions.

250 The Tribunal believes that it is possible and appropriate for it to take judicial notice of the following:

(a) there were probably some students who would have been eligible to be granted special provisions but did not apply for them in 2008 but this would have been a small percentage of the total candidature;

(b) there were probably some students who applied for and were granted special provisions in 2008 who nonetheless did not or were not able to comply with the requirements identified above but this would have been a small percentage of those granted special provisions;

(c) the vast majority of those who were not eligible for special provisions or who were granted special provisions probably complied or were able to comply with the requirements;

(d) the proportion of the total candidature in any of the HSC examination which suffered from Ms Wong's disability to the same or a similar extent as Ms Wong was probably very small.

251 On this basis, the Tribunal is prepared to conclude that a substantial majority of those who attempted the English Advanced and Modern History HSC examinations in 2008 either were not eligible for special provisions or were granted special provisions (for conditions other than joint hypermobility and low muscle tone affecting their hands and thumbs so as to impact adversely upon their ability to write and their speed of writing, for sustained periods exceeding 30 minutes) and of those a substantial majority complied or were able to comply with the requirements identified.

252 On this basis and having regard to the other information concerning numbers of candidates and the number of students granted special provisions it can be concluded that a substantial majority of the base groups, namely the 9,686 students who attempted 2 Unit Modern History in 2008 and the 27,459 who attempted the 2 Unit English Advanced examinations in 2008, did not suffer from Ms Wong's disability and probably complied and were able to comply with the requirements. In this way, the 'proportion of persons who do not have that disability' but who complied or were able to comply with the requirements might be established, albeit in a quantitatively imprecise way. Ms Wong submitted that, given the Tribunal's role and powers, it could and should investigate and make enquiries as to the statistics that might give a more precise quantitative assessment. The Tribunal rejects this submission.

253 Attention must now be paid to the proportion of the base group with Ms Wong's disability who complied or were able to comply with the requirements. The Tribunal is satisfied that persons with the same disability as Ms Wong who also suffered it to the same or a similar extent as Ms Wong, would have been eligible for special provisions, as was Ms Wong herself. She was granted certain special provisions. The Tribunal infers that if other students taking the 2008 HSC English Advanced and Modern History examinations suffered from that same type of disability to the same or a similar extent, they also would have been granted special provisions. What cannot be inferred is that all or even a majority of those who suffered from Ms Wong's disability to the same or a similar extent would have had their condition diagnosed only a matter of weeks before the HSC examinations and would not have had sufficient time to practise with a writer so that they were unable to comply with the requirements identified during the relevant HSC examinations. Judicial notice is taken of the fact that there were probably some students with Ms Wong's disability who applied for and were granted special provisions in 2008 who nonetheless did not or were not able to comply with the requirements identified above but this would have been a small percentage of those students.

254 The appropriateness of findings such as those set out in the preceding paragraph is implicitly acknowledged by Ms Wong when she submitted in her written submissions that:

"Students who are prevented from communicating their responses in the HSC examinations seek SEP [special examination provisions]. For the majority of these students, the SEP enables them to meet the HSC examination requirements."

255 That submission is also supported by a consideration of the nature and purpose of the special provisions program and the evidence before the Tribunal as to how it was implemented during the relevant period.

256 If the granting of special provisions to students with Ms Wong's disability to the same or a similar extent who sat for the 2008 English Advanced and Modern History HSC examinations is taken into account, the Tribunal would have to conclude that at least a majority of those students complied and were able to comply with the requirements identified by Ms Wong. This would have been largely if not entirely because of the special provisions granted. This, however, is a qualitative assessment and it is not possible for the Tribunal to make any quantitative assessment of how great a majority complied or were able to comply.

257 When the comparison of proportions is made, it appears that both a majority of the students in the base group with Ms Wong's disability and a majority of those without that disability could be found to have complied or been able to comply with the two requirements identified by Ms Wong. In the absence of any reliable quantitative data as to the relevant majorities (and there is none), it cannot be concluded by the Tribunal that 'a substantially higher proportion of persons who do not have that disability' complied or were able to comply with the two requirements.

258 Thus, Ms Wong has failed to establish that either of the two requirements was 'a requirement or condition with which a substantially higher proportion of persons who do not have that disability ... comply or are able to comply' within s 49B(1)(b) of the ADA.

259 The parties did not put forward an alternative approach but an alternative would be to disregard the grant of special provisions to students with the same type and extent of disability as Ms Wong. This could lead to the conclusion that none of the 2008 HSC students who had Ms Wong's disability complied or were able to comply with the requirements and thus Ms Wong's case in relation to this issue could be said to have been made out. Such an approach would, however, fail to take into account what actually occurred.

260 What actually occurred was that, by its special provisions program, the Respondent attempted to create what was called a 'level playing field' for all HSC students in 2008. It did so by properly discriminating in favour of persons with needs or disabilities that would otherwise have hindered or prevented them from reading and communicating their responses in the HSC examinations. If that is not taken into account, any finding by the Tribunal that the Respondent discriminated against Ms Wong would effectively be based upon false premises. That should not be done.

261 To the extent that the special provisions program did not eliminate all the adverse consequences of disability or need in every case, that is unfortunate. Nonetheless, that would not by itself justify the conclusion that the Respondent discriminated against any particular student or group of students within the meaning of s 49B(1)(b).

262 The Tribunal accepts that it is probable that the Respondent's special provisions program enabled a majority of those granted special conditions to comply with the requirements imposed by the Respondent on students sitting for the 2008 HSC examinations. Further, the Tribunal considers it correct to take into account the probability that those students with disabilities of the same type and to a similar degree as Ms Wong were granted special provisions for the HSC examinations in 2008.

263 These conclusions are probably most appropriately seen as a reflection of the fact that Ms Wong's inability to comply with the requirements was primarily a consequence of the late diagnosis of her condition, the lateness of her applications for special provisions, the lack of time for her to practise with a writer and the poor communication of the options available to her. If steps had been taken earlier, it is likely that Ms Wong would have been able to practise with a writer so as to enable her to comply with the requirements or so as to enable her to demonstrate that the writer provision was not appropriate or adequate, which might have justified the granting of computer provisions under the Respondent's guidelines. The disadvantage with Ms Wong suffered was more the result of the lateness of her seeking special provisions rather than her underlying condition or any discriminatory conduct of or discriminatory requirements imposed by the Respondent.

264 The availability and effective implementation of the special provisions program, which cannot be ignored in this case, can be seen as removing or minimising any indirect discriminatory impact which the imposition of the requirements identified by Ms Wong might have. In a factual situation different from the present case where there was evidence that established that the special provisions program failed to a significant extent to enable students with Ms Wong's disability to the same or a similar extent to comply with the requirements identified, the result may well be different.

265 In conclusion, the Tribunal believes it cannot be satisfied that either of the two requirements Ms Wong identified was 'a requirement or condition with which a substantially higher proportion of persons who do not have that disability ... comply or are able to comply' within s 49B(1)(b) of the ADA. Accordingly, Ms Wong has failed to establish this element of her HSC and Special Provisions Claim.

Were the Requirements Not Reasonable?

266 If we are wrong in the conclusions reached above, the Tribunal would be required under s 49B(1)(b) to consider in respect of each condition or requirement whether it was 'not reasonable having regard to the circumstances of the case'.

267 In the context of indirect discrimination, it has been held by the High Court that 'reasonableness' is a question of fact 'but it can only be determined by weighing all the relevant factors' - Waters v Public Transport Corporation (1991) 173 CLR 349 at 395 (per Dawson and Toohey JJ). In that same case, the High Court (at 395-6) endorsed the views of Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263:

"the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. ... The criterion is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account."

268 Brennan J in Waters stated the position in the following terms (173 CLR at 378):

'['Reasonableness'] must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity .... There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ... ; secondly, whether the activity could be performed .... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity ... and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.'

269 Accordingly, in determining a condition or requirement was 'not reasonable' the Tribunal must have regard to the nature and extent of the discriminatory effect of the requirement and consider this in the light of:

(a) the reasons for the requirement, including any commercial (or practical) considerations;

(b) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis;

(c) whether there is a less discriminatory option, which accommodates of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory; and,

(d) any other relevant circumstances.

This summary is an adaptation of the principles endorsed by the Appeal Panel in Gardiner v WorkCover Authority of New South Wales [2004] NSWADTAP 1 at [27] in the light of the comments of the Panel especially at [36] to [41].

270 In relation to this claim the relevant requirements identified were that:

(a) students were required to communicate within the set time limit their responses reflecting their ability and knowledge;

(b) students were required to submit responses (handwritten by themselves or a writer) not ones typed on a computer.

271 In relation to both these conditions or requirements, the Tribunal accepts that they could, depending on the circumstances in which they were applied, have discriminatory effects. The imposition of an examination time limit could hinder or prevent a person who has a disability reading or writing from communicating their responses fully and effectively within time allotted. Similarly, persons with a writing disability could be prejudiced by being required to submit handwritten responses in an examination.

272 The question of whether the requirements in question were 'not reasonable having regard to the circumstances of the case' posed by s 49M(1)(b) should be looked at on both the general and the specific level.

273 On the general level, imposing a time limit of 2 or 3 hours (as occurred in the English Advanced and Modern History examinations) is a practical matter which is necessary if the examinations are to be conducted for a large number of persons, supervised by invigilators at the expense of the Respondent and effective as a means of assessing students' knowledge and ability. Put another way, to conduct examinations without time limits would be unworkable. Furthermore, there are other aspects of the HSC assessment process which are not subject to the confined time limits involved in the HSC examinations. The assessments conducted by the schools include non-timed tasks. As a result, there is a degree of variety in the assessment methods used to determine students' final HSC result and such variety is far from unreasonable. Similar comments can be made about the submission of handwritten papers rather than computer printed work. The provision of suitable computers for each student sitting for the HSC would involve greater expense than the provision of paper writing booklets.

274 In addition to these practical considerations, the circumstances of the case include that the Respondent does not impose these requirements without regard to the needs or circumstances of students who suffer from some disability or special circumstances which might inhibit their ability to comply with the requirements. The purpose of the Special Provisions program is to make appropriate allowances for the hardship or unfairness which the imposition of these requirements might cause. There is no basis in the evidence in the present proceeding for concluding that the Respondent's special provisions program did not generally achieve its purposes or that the potentially discriminatory effects of the requirements imposed on students attempting the HSC examination were not generally addressed in a reasonable and effective manner by the program. Ms Wong accepted in her submissions that for the majority of these students granted special provisions, those provisions enabled them to meet the requirements imposed by the Respondent in relation to the HSC examinations.

275 In short, the Tribunal rejects the conclusion that the types of examinations conducted by the Respondent for the HSC examinations in 2008 taken together with the Special Provisions program which it administered should be found to be 'not reasonable' at the general level.

276 That, however, is not the end of the matter. Whether the requirements identified satisfied the reasonableness test in s 49M(1)(b) must also be considered in relation to the particular circumstances of Ms Wong. The Tribunal must determine whether it was 'not reasonable having regard to the circumstances of the case' for the Respondent to grant the additional rest breaks and the writer provision but refuse computer provision, and requiring Ms Wong to comply with the requirements identified.

277 In this context it is important to weigh up carefully a number of matters concerning Ms Wong's disability, the special provisions she was granted and the effect they had on her performance. The Respondent imposed requirements that Ms Wong, despite her disability, complete her responses within the standard time limits and submit handwritten responses. This flowed from the decisions of the Respondent to refuse special provisions by way of extra time to write and the use of a computer. Further, the Tribunal accepts that because of her disability, Ms Wong's choice (which we believe was justified in the circumstances) not to use the writer provision and the inadequacy of the rest periods used by Ms Wong to fully address her problem, her performance in the English Extension and Modern History HSC examinations may well not have been as good as she could have achieved under other circumstances. In this sense, Ms Wong did suffer a disadvantage and, in her particular case, the Special Provisions program did not achieve a situation where Ms Wong was able to communicate her responses to the essay questions in the English Extension and Modern History HSC examinations as fully as she would have wished.

278 As our findings above demonstrate the Respondent's ultimate decision as to special provisions in Ms Wong's case, which was communicated on 16 October 2008, was the result of numerous factors. These included the Respondent's guidelines and the three stage approach to the granting of computer provision for handwriting difficulties. The evidence established that students experiencing handwriting difficulties could be granted special provisions by way of use of a computer but this was usually only granted as a last resort. What occurred was that students with handwriting difficulties were typically initially allowed extra time to rest. If this was shown to be inadequate to deal with the problem, such students would often then be granted a writer with extra time allowed for dictation. If it could be shown that this was unworkable or did not adequately address the students' problems, they might then be granted computer provision. With students whose handwriting difficulties had been diagnosed and applications for special provisions lodged well before the HSC examinations, this three stage process appears to have been entirely appropriate. This three stage process should not, in the Tribunal's view, be characterised as 'not reasonable' in general.

279 Ms Wong's problem was that, for some reason, Ms Wong's condition was not diagnosed until only a matter of weeks before her first HSC examination. As a result, her application for special provisions was lodged late. Nonetheless, she was able to demonstrate before the start of the examinations that the special provisions by way of 5 minutes per half hour extra time to rest initially granted to her was not adequate to address her problem. Consequently, she was granted a longer period of extra time to rest and the use of a writer, with extra time for dictation. This, however, was granted effectively less than a day before the start of the examinations. This was not the fault of the Respondent which dealt with all Ms Wong's applications and appeals in a timely and effective manner. The mode in which the decision was communicated by the Respondent, however, did not make it clear that the extra time to rest and the use of a writer could be combined in one examination. This was the Respondent's fault.

280 As has been noted above, Ms Wong decided not to use the writer provision at all and, thereafter, Ms Wong coped as best she could with the writing intensive HSC examinations using some of the extra time to rest which had been granted to her. It should be noted that Ms Wong did not make use of the writer provision in later examinations when she may have had some time to practise with a writer prior to those examinations, although the Tribunal would not criticise Ms Wong if she did not do so, given the pressures of examination preparation during the examination period. In addition, Ms Wong did not lodge, after the English Advanced examinations, a further application for computer provision supported by further medical evidence and evidence of the actual difficulties she suffered during those examinations. The evidence did not explain why.

281 While it is open to conclude that the Respondent should in the circumstances have made a different decision on 16 October 2008 and should have granted Ms Wong the use of a computer to write her HSC examinations or more time to write, that is not the question for the Tribunal. Rather, the issue is whether the Respondent's refusal of those special provisions which had the effect of requiring Ms Wong to comply with the requirements identified was 'not reasonable' having regard to the circumstances of the case. It appears to the Tribunal that the Respondent's decision (although communicated unclearly) was rationally based on relevant considerations, took into account such material as was presented on Ms Wong's behalf to the Respondent in an appropriate manner, was based on consistently applied and appropriately structured policies and was not capricious or motivated by irrelevant considerations. It was made and communicated as a matter of urgency. Although minds may differ, the Tribunal is not satisfied that, on the particular level of the Respondent's decisions in relation to Ms Wong's applications for special provisions, requiring Ms Wong to comply with the conditions identified above was 'not reasonable having regard to the circumstances of the case'.

282 Thus, the Tribunal concludes that Ms Wong has failed to make out this final element of her HSC and Special Provisions Claim. That is not to say that the special provisions program operated in Ms Wong's case to remove every disadvantage to her. It is merely to find that this element of the indirect discrimination claim made by Ms Wong has not been made out.

Conclusion on the HSC and Special Provisions Claim

283 As Ms Wong has failed to establish that she was discriminated against by being refused services or in the terms on which the services were provided within s 49M(1)(a) and (b) and that the Respondent's conduct amounted to indirect discrimination under s 49B(1)(b), her HSC and Special Provisions Claim fails. The Tribunal proposes to dismiss this part of the complaint.

The Illness/Misadventure Appeal Claim

Did the Respondent discriminate against Ms Wong by refusing to provide services to Ms Wong or in the terms on which they were provided to her?

284 The Tribunal now turns to consider the Illness/Misadventure Appeal Claim. This claim was limited to the Illness/Misadventure appeal lodge by Ms Wong in respect of the English Advanced and Modern History examinations.

285 As was noted above, s 49M(1) renders unlawful only two types of disability discrimination, namely, discrimination by refusal to supply services (s 49M(1)(a)) and discrimination in the terms on which services were provided (s 49M(1)(b)).

286 As the Tribunal understands it, Ms Wong's complaint under this claim was not one of discrimination by refusal to supply services (within s 49M(1)(a)) but rather that the Respondent provided what she described as the Examination Mark Adjustment Service on unfavourable terms when it required Ms Wong to have a higher and uncompromised assessment mark than her examination mark before it could adjust her examination mark affected by her writing disability.

287 As a result it may be unnecessary to consider whether there was a refusal to supply services in this regard. Nonetheless, in case our understanding of Ms Wong's position is wrong, we propose to deal with discrimination by refusal to supply shortly here. It can be noted that the Respondent received the appeal, considered it in accordance with its procedures and guidelines and communicated the outcome to Ms Wong. As the marks Ms Wong received in the HSC examinations for English Advanced and Modern History were higher than her school assessment marks, it was not appropriate to use her lower assessment marks rather than her higher HSC examination marks to calculate her results. In these circumstances and having regard to the nature of the services which make up Illness/Misadventure Appeal Services, the Tribunal finds that the Respondent did not refuse to supply Ms Wong with any relevant services, within s 49M(1)(a), in relation to her Illness/Misadventure appeal.

288 It will be recalled that on our analysis referred to above the Respondent does not provide a mark adjustment service, whether in relation to Illness/Misadventure appeals or otherwise. If a student's performance in an HSC examination is adversely affected by illness or misadventure and this is established to the satisfaction of the Respondent, the mark in that examination may be disregarded and the student's HSC result determined exclusively by reference to the school ranking assessment mark. The HSC examination mark is not 'adjusted' in any sense. Accordingly, it would be wrong to conclude that the Respondent refused to supply Ms Wong with 'mark adjustment services' as these were not services provided by the Respondent

289 As to discrimination in the terms on which services were supplied (s 49M(1)(b)), the Tribunal does not accept that what occurred in relation to Ms Wong's Illness/Misadventure appeal could amount to this form of disability discrimination. The only element of the appeal process which could have some relevance given the way in which Ms Wong puts her case and which might be argued to be a "term" of the supply of the services was the provision of the Board's 'Assessment Certification and Examination Manual', section 11.3 headed 'Procedures for Illness/Misadventure Appeals' which relevantly stated:

"In the case of Higher School Certificate illness/misadventure appeals, if the appeal is upheld, the student will be awarded their examination mark or the assessment mark, whichever is the higher."

It is this provision which also gives rise to the conditions or requirements identified by Ms Wong for the purposes of s 49B(1)(b) of the ADA. Further, it was the imposition of those requirements by the Respondent which Ms Wong submitted amounted to providing the so-called Examination Mark Adjustment Service on unfavourable terms.

290 The Tribunal does not accept Ms Wong's analysis of the situation. First, for the reasons given above, it is a misunderstanding to characterise what the Respondent did as providing any service by which marks could properly be said to be adjusted. The Respondent relevantly provided the Illness/Misadventure Appeal Services identified above. Secondly, the provision in section 11.3 quoted above is not, properly understood, a term of the supply of the Illness/Misadventure Appeal Services provided by the Respondent. It was merely a statement of a sensible outcome if actual illness or misadventure was established. As noted above, if the student's performance in the HSC examination was adversely affected by an illness or misadventure, that would be a good reason for not penalising the student for that poor performance and allowing the student to have his or her results determined by the school assessment mark alone without taking into account the HSC examination mark. Illness or misadventure affecting an examination would not, in fairness, justify taking a lower school assessment mark as determining the student's HSC result. It was not the case that Ms Wong could only lodge an appeal if her school assessment mark was higher than her HSC examination mark.

291 The Tribunal considers that it would be a misunderstanding to conclude that the Respondent discriminated against Ms Wong in the terms on which it supplied Illness/Misadventure Appeal Services because the Respondent's manual provided that if the appeal was upheld she would be awarded the higher of her examination mark and her school assessment mark as her examination mark. Thus, the Tribunal concludes that there is no discrimination of the type identified in s 49M(1)(b) made out in the Illness/Misadventure Claim.

292 The fact that Ms Wong's school's assessment mark may or may not have been compromised by a failure by the school to make allowances for Ms Wong's condition (about which the Tribunal makes no findings as the school was not a party to or represented at the hearing of this proceeding) is not something which the Respondent can or is required to deal on an Illness/Misadventure appeal in relation to an HSC examination. Even if it were the case that there had been some problem with the determination of the school assessment mark, this would not amount to or involve the refusal of Illness/Misadventure Appeal Services or discrimination in the terms on which the Illness/Misadventure Services were provided, within either s 49M(1)(a) or (b).

293 Accordingly, in respect of the Illness/Misadventure Appeal Claim:

(a) there has not been any relevant refusal to provide services by the Respondent within s 49M(1)(a);

(b) there has not been any discrimination in the terms on which the services were provided within s 49M(1)(b).

294 This conclusion, although reached independently of the President's decision of the Anti-Discrimination Board, is also consistent with the President's decision to decline Ms Wong's complaint, referred to above. Once again, this by itself is sufficient to dispose of this claim in the Respondent's favour.

295 Nonetheless, in case we are wrong in this conclusion and there was, contrary to our conclusion, conduct of the Respondent falling within s 49M(1)(a) or (b), the Tribunal will go on to deal with the further issues that arise in this proceeding in relation to the Illness/Misadventure Appeal Claim.

In refusing to provide the services or discriminating in the terms, did the Respondent discriminate against Ms Wong on the ground of disability?

296 The next issue which arises under s 49M(1) is whether by refusing to provide services to Ms Wong or by discriminating against her in the terms of supply, did the Respondent discriminate against Ms Wong 'on the ground of disability' as described in s 49B(1)(b).

297 The issues which the Tribunal must address under s 49B(1)(b) are:

(a) Did the Respondent require Ms Wong to comply with a requirement or condition?

(b) Was it the case that Ms Wong did not comply or was not able to comply with the requirement or condition?

(c) Was it the case that a substantially higher proportion of persons who did not have Ms Wong's disability complied or were able to comply with that requirement or condition?

(d) Was the requirement or condition not reasonable having regard to the circumstances of the case?

298 In addition, the question of whether any indirect discrimination established as a result of satisfaction of the issues referred to in the preceding paragraph was also required to be 'on the ground of ... disability' must be addressed.

Did the Respondent require Ms Wong to comply with a requirement or condition?

299 In respect of the Illness/Misadventure Appeal Claim, Ms Wong identified the conditions with which the Respondent required her to comply as being that:

(a) her school assessment marks for the relevant subjects be not compromised (for example by misadventure);

(b) her school assessment marks for the relevant subjects be higher than her HSC examination marks.

300 The question in both cases is whether Ms Wong was required to comply with this condition or requirement, within the meaning of s 49B(1)(b). These words of this section, 'requires the aggrieved person to comply with a requirement or condition', are effectively the same as those found in other sections of the ADA (see for example, ss 7(1)(c) and 24(1)(b)) and other anti-discrimination legislation (see for example s 17(5) of the Equal Opportunity Act 1984 (Vic)). The concept of a 'condition or requirement' in such legislation was considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349 in relation, inter alia, to whether the removal of conductors on trams in Victoria amounted to indirect discrimination against disabled persons within s 17(5) of the Victorian Equal Opportunity Act. The following propositions can be derived from that case:

(a) neither the services in question nor the requirement or condition said to be involved in their provision are required to be identified in any particular way - Waters v Public Transport Corporation (1991) 173 CLR 349 at 361;

(b) compliance may be required even if the requirement or condition is not made explicit: it is sufficient if a requirement or condition is implicit in the conduct said to constitute discrimination - Waters at 360;

(c) the notion of 'requirement or condition' involves something over and above that which is necessarily inherent in the services provided - Waters at 361.

301 In further development of the proposition in (c) above, the Mason CJ and Gaudron J gave an example in the following terms:

Thus, for example, it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands.

302 In our view, the services the subject of this claim are the Illness/Misadventure Appeal Services identified above. As we set out in some detail above, the Respondent is not providing a mark adjustment service when dealing with Illness/Misadventure appeals. It is simply the case that if such an appeal is upheld this may have the consequence that the student's HSC result is calculated disregarding the examination result or results adversely affected by the illness or misadventure. Understood in this way, the Tribunal rejects the contention that the Respondent provides mark adjustment services, whether as a result of Illness/Misadventure appeals or otherwise.

303 As to the first of these requirements identified by Ms Wong, It was not an express condition of the Illness/Misadventure Appeal Services provided by the Respondent that the school assessment mark not be compromised. Furthermore, if the school assessment marks were, in fact, not properly arrived at, this is not something that is addressed in an Illness/Misadventure appeal in relation to the HSC examinations. That is a matter between the student and the school, with the Respondent having a broad oversight role through the availability of an appeal to the Respondent in relation to the School Review of Assessment Ranking. This was the type of appeal that Ms Wong instituted when she submitted the '2008 Higher School Certificate Examinations Application for School Review of Assessment Ranking' form in respect of English Advanced to the Respondent accompanied by a letter dated 26 November 2008. Ms Wong's second claim of indirect discrimination does not relate to that appeal or the services provided by the Respondent in relation to such appeals.

304 The Tribunal accepts that a requirement or condition does not have to be explicit but can be implicit in the conduct said to constitute discrimination (Waters v Public Transport Corporation (1991) 173 CLR 249 at 360). Nonetheless, a problem with the determination of the school assessment marks was not something that precluded a student from lodging or the Respondent from dealing with an Illness/Misadventure Appeal. Accordingly, the Tribunal finds that first condition submitted by Ms Wong was not imposed or required by the Respondent explicitly or implicitly in relation to its provision of Illness/Misadventure Appeal Services or any other services provided by the Respondent.

305 Dealing with the second condition submitted by Ms Wong, the Tribunal notes that the procedure for submitting an Illness/Misadventure appeal has been set out above. In submitting such an appeal or having it considered, it is not a condition or requirement that the students appealing have obtained marks in the HSC examinations that are lower than their school assessment marks. Indeed, when most such appeals are lodged the students will not even know their HSC examination marks and their papers may have not even been marked. If as a result of illness or misadventure students' HSC examination marks might be lower than would be expected absent the illness or misadventure, the result that the students' school assessment marks, if they are higher, should be used in place of the HSC examination marks makes sense. It would not make sense and would be unfair to use lower school assessment marks in that context. It can be accepted that this assumes that the school assessment marks were properly arrived at. On an Illness/Misadventure appeal in relation to HSC examinations, the Respondent proceeds on the basis that that assumption is correct. There does not appear to be anything unreasonable or wrong with the Respondent's adopting that course given that there are other processes available by which a student can seek to have his or her school assessment ranking and mark reconsidered by the school.

306 Further, the Tribunal does not accept that the fact that a student's relevant school assessment mark has to be higher than the student's HSC exam mark before the student is likely to benefit from an Illness/Misadventure appeal being upheld by the Respondent amounts to imposing a 'requirement or condition' within the meaning of s 49B(1)(b). Receiving the services provided by the Respondent is not subject to any explicit or implicit requirement concerning the relativities of the student's school assessment and HSC examination marks. Rather, the situation is similar to the manicure services referred to by the High Court in the passage from Waters quoted above. It is not a condition or requirement of the provision of manicure services that the person seeking the service have one or both hands. It is simply the nature of the service that it only benefits those with hands. Similarly, it is not a condition or requirement of the provision of Illness/Misadventure Appeal Services that the student have a higher school assessment mark than the HSC examination mark. It is simply the nature of an Illness/Misadventure appeal that it only benefits those whose school assessment mark turns out to be higher than their HSC examination mark.

307 Accordingly, the Tribunal is of the view that the conditions or requirements contended for by Ms Wong in relation to the second claim were not imposed by the Respondent. It was not a condition or requirement of the provision of Illness/Misadventure Appeal Services that the student lodging an appeal have school assessment marks higher than their HSC examination marks or that the school assessment marks be uncompromised.

308 Thus, even if (contrary to what we held above) there were discrimination by refusal to supply or in the terms of supply of services within the meaning of s 49M(1)(a) or (b) in respect of the Illness/Misadventure Appeal Services, Ms Wong's second claim fails at this stage because there was no condition or requirement imposed by the Respondent of the type alleged by Ms Wong.

Compliance by Ms Wong with the requirement or condition?

309 If (contrary to the findings made above) Ms Wong was required to comply with conditions or requirements that she have uncompromised school assessment marks and that were higher than her HSC examination marks, the Tribunal must consider whether Ms Wong complied or was able to comply with each requirement. The situation for each of these two conditions or requirements is different.

310 In relation to the condition that her relevant school assessment marks be higher than her HSC examination marks, Ms Wong did not comply and was not able to comply with that condition. Her relevant HSC examination marks were the higher of the two.

311 As to the condition or requirement that her school assessment marks be uncompromised, in order to determine whether or not this was so, the Tribunal would have to reach of conclusion on the school's assessment processes and marking. In this regard, Ms Wong submitted that the school had engaged in malpractice and impropriety. The school is not a party to, and has not been represented at the hearing of, this proceeding. During the oral submissions (see transcript of 26 April 2012 pages 42 - 44), the Tribunal raised with the parties the issue of whether the Tribunal could or should embark upon a consideration of whether the school assessment marks were compromised because of malpractice, impropriety or otherwise. In the circumstances, the Tribunal indicated that it intended to proceed as follows:

(a) if the Tribunal could dispose of this proceeding without deciding or making findings about the allegations of malpractice and impropriety by the school, it would do so;

(b) if the Tribunal could not dispose of the proceeding without deciding or making findings on those issues, the Tribunal would not dispose of the proceeding without giving the school an opportunity to be heard in relation to those matters or any other relevant matters that arose.

312 In the light of our findings already made above in relation to the Illness/Misadventure Appeal Claim that there were no discrimination by refusal to supply services nor any in the terms of supply within the meaning of s 49M(1)(a) or (b) and that there was no condition or requirement imposed by the Respondent of the types alleged by Ms Wong, the Tribunal finds that it can dispose of this proceeding without deciding or making findings concerning the allegations of malpractice and impropriety against the school.

313 Accordingly, the Tribunal does not propose to consider further this aspect of the Illness/Misadventure Appeal Claim, namely whether or not Ms Wong complied or was able to comply with the requirement or condition that her school assessment marks be uncompromised.

314 Thus, the Tribunal's only conclusion concerning this aspect of the matter is that in so far as it was a condition or requirement that Ms Wong's relevant school assessment marks be higher than her HSC examination marks (contrary to our finding above), Ms Wong did not and was not able to comply.

Compliance by a substantially higher proportion of persons without the disability?

315 In respect of the Illness/Misadventure Appeal Claim, in so far as the Respondent imposed a condition or requirement that a student lodging an Illness/Misadventure appeal have relevant school assessment marks higher than his or her HSC examination marks (contrary to our finding above), the Tribunal now addresses the proportions of persons who complied or were able to comply with that requirement.

316 In this instance, Ms Wong did not identify with any clarity the way in which this comparison should be carried out. Doing its best in the circumstances, the Tribunal considers that the base group can be identified as the group of 2008 HSC candidates in English Advanced and Modern History who lodged an Illness/Misadventure appeal (the I/M Group). Ms Wong's Illness/Misadventure appeal related only to those two subjects.

317 The comparison required could then be formulated as a comparison between:

(a) the proportion of the IM Group who did not have Ms Wong's disability and whose relevant school assessment marks were higher than their HSC examination marks; and

(b) the proportion of the IM Group with Ms Wong's disability and whose relevant school assessment marks were lower than their HSC examination marks.

318 According to Mr Ford, the number of students in the 2008 HSC who lodged Illness/Misadventure appeals following the HSC examinations was 4,532. Of these 4,172 or 92% were totally or partially upheld. What this evidence meant was not explored in cross examination. If it is the case that an Illness/Misadventure appeal is only totally or partially upheld when the student's relevant school assessment marks were higher than their HSC examination marks, it might be of some assistance in that it could be said to establish that in the vast majority of cases the student's school assessment mark was higher than the relevant HSC examination mark. There was, however, no evidence as to how many Illness/Misadventure appeals related to English Advanced and Modern History and how many in each case were upheld. Further, and perhaps more problematically for Ms Wong, there was no information as to how many of the students who appealed had Ms Wong's disability, how many did not and how many in each group had their appeals upheld.

319 It would not assist Ms Wong if the base group were found to be all students who made Illness/Misadventure appeals after the 2008 HSC examinations as there was a similar lack of evidence as to the appropriate proportions of that group as well.

320 In these circumstances, the Tribunal does not believe that it is in a position to make the comparison required under s 49B(1)(b) in this regard because of the lack of evidence. As a result, even if (contrary to our previous findings) all the other elements of the Illness/Misadventure Appeal Claim had been made out, Ms Wong would fail on this issue.

Was the Requirement Not Reasonable?

321 For the sake of completeness and assuming that we are wrong in our preceding conclusions that Ms Wong has failed to establish various elements in her claim of indirect discrimination in her Illness/Misadventure Appeal Claim, the Tribunal will consider whether the requirement that Ms Wong's school assessment mark be higher than her relevant HSC examination mark was 'not unreasonable having regard to the circumstances of the case'.

322 On a general level such a requirement appears to the Tribunal to be entirely reasonable. As we have noted above, if as a result of illness or misadventure a student's HSC examination marks are lower than would be expected absent the illness or misadventure, it is sensible and appropriate to use the student's school assessment marks, if they are higher, in place of the HSC examination marks to calculate the HSC results. It would not make sense to use lower school assessment marks in that context in place of the higher HSC examination marks. It follows therefore that the benefit of a successful Illness/Misadventure appeal, namely calculation of the HSC result by reference only to the school assessment mark and not both that mark and the HSC examination mark, is only available to those students whose relevant school assessment marks are higher than their HSC examination marks. Far from being 'not reasonable', this is sensible and rational, at the general level.

323 Once again, the circumstances of the case also include Ms Wong's particular circumstances. Part of her claim was that it was unreasonable in her case to deny her the benefit of an Illness/Misadventure appeal because, as she maintained, her school assessment marks were lower because of alleged misconduct by the school. As we stated above, the question of whether her school assessment marks were compromised because of alleged misconduct by the school is not a matter upon which the Tribunal proposed to rule unless it were necessary for it to do so. It is not necessary. Having considered the matter, the Tribunal is of the view that even if Ms Wong's school assessment mark was compromised in some way, this would not justify a finding that in the context of her Illness/Misadventure appeal in relation to her HSC examinations the requirement that her school assessment mark be higher than her HSC examination mark was relevantly 'not reasonable'.

324 In dealing with Ms Wong's Illness/Misadventure appeal in relation to the relevant HSC examinations, the Respondent apparently proceeded on the basis that that her school assessment marks were as determined by the school. As a result of those marks being lower than her HSC examination marks, Ms Wong could obtain no benefit from an Illness/Misadventure appeal. There does not appear to be anything unreasonable or wrong with the Respondent's adopting that course in Ms Wong's case, notwithstanding her complaints about the school assessment marks. If Ms Wong wished to contest the accuracy, reliability or appropriateness of her school assessment marks there were other means available to her to attempt to ensure that her school assessment marks were reliable and appropriate. Indeed Ms Wong availed herself of those means by lodging her 2007 and 2008 Assessment Rank Appeals, then seeking an internal review of the rejection of the 2008 appeal and then obtaining a section 97 reconsideration of the matter.

325 In all the circumstances at both the general and the particular level, the Tribunal does not believe that the Respondent's imposing the condition or requirement that Ms Wong's school assessment marks be higher than her relevant HSC examination marks (if, contrary to our view, such a condition was imposed) should be characterised as 'not reasonable having regard to the circumstances of the case'. Thus, Ms Wong's Illness/Misadventure Appeal Claim fails on this issue as well.

Conclusion on the Illness/Misadventure Appeal Claim

326 As Ms Wong has failed to establish that she was discriminated against by being refused services or in the terms on which the services were provided within s 49M(1)(a) and (b) and that the Respondent's conduct amounted to indirect discrimination under s 49B(1)(b), her Illness/Misadventure Appeal Claim also fails. The Tribunal proposes to dismiss this part of the complaint as well.

The Effect of the words 'on the ground of the aggrieved person's disability' in s 49B(1) in cases of indirect discrimination

327 Before the Tribunal concludes these reasons, it is appropriate to address one additional point raised by the Respondent. The Respondent submitted that in addition to satisfying all of the requirements of ss 49M(1) and 49B(1)(b) addressed above, it was necessary for Ms Wong, in order to be successful in a claim of indirect discrimination, to establish that the discrimination against her was 'on the ground of [her] disability'. This was said to follow from the inclusion of those words in the chapeau to s 49B(1). The chapeau and paragraph (b) are in the following terms:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

...

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, 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.

328 It does appear that the words of s 49B(1) contemplate that in order to establish indirect discrimination on the ground of disability two matters must be proved namely that the perpetrator:

(a) required the things set out in paragraph (b); and

(b) did so, on the ground of the aggrieved person's disability etc.

329 Absent contrary authority, the Tribunal would find that there is considerable force in the Respondent's submission in this regard. This particular aspect of the structure of the definition of indirect discrimination, however, was the subject of consideration in the New South Wales Court of Appeal in Amery v State of New South Wales [2004] NSWCA 404 by Beazley JA (with whom Cripps AJA agreed). Although that case concerned indirect discrimination on the ground of sex, the wording of s 24 in that case was relevantly the same as the wording in s 49B except that the ground of discrimination was different (sex instead of disability). In order to understand what was decided it is necessary to set out the relevant paragraphs of her Honour's judgment in full as follows:

35 The Department contended that upon a reading of the express words of s.24(1)(b) the motive or reason for the discriminatory conduct determines whether or not the conduct is unlawful. This was so because of the placement of the words "on the ground of the aggrieved person's sex" after the word "if" in the second line of sub-s.(1). When regard was had to those words, the section was plain and unambiguous and was to be read, (omitting unnecessary parts) as follows:

"A person, called the perpetrator, discriminates against another person, called the aggrieved person, on the ground of sex if, on the ground of the aggrieved person's sex the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, ... 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." (emphasis added)

36 The Department submitted that if that meaning was not given to s.24(1)(b) then the words "on the ground of the aggrieved person's sex" would have to be treated as mere surplusage insofar as para. (b) is concerned. There was no warrant, on the Department's argument, to give those words no work to do in relation to that paragraph. It followed, on this construction, that the appellants must fail as there was no evidence to establish that permanent status was, as senior counsel for the Department put it:

"imposed as a condition of salary progression (beyond the equivalent of level 8 of the permanent teachers' pay scale), because the [appellants] were female".

37 In my opinion, there are three considerations that tell against the Department's argument. The first derives from the statutory history of the section. The second relates to the purpose of indirect discrimination provisions. The third is the operation of s. 24(1A).

38 Section 24(1), as originally enacted, provided:

"24(1) A person discriminates against another person on the ground of his sex if, on the ground of -

(a) his sex;

(b) a characteristic that appertains generally to persons of his sex; or

(c) a characteristic that is generally imputed to persons of his sex,

he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of the opposite sex.

(2) ..."

39 The provision in these terms related only to direct discrimination: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165; Commonwealth Bank v HREOC (1997) 80 FCR 78 at 97.

40 The section was amended by the Anti-Discrimination (Amendment) Act 1981 (No. 15) so as to add a new sub-s.(3) which provided:

"(3) A person discriminates against another person on the ground of his sex if he requires the other person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply;

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

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

41 New sub-s. (3) introduced the notion of indirect discrimination into the Act. In Banovic, Deane and Gaudron JJ at p.175 described the subsection as: "usually [being] understood to refer to indirect discrimination or acts having a disparate impact on men and women." Their Honours further observed that the equivalent American and Canadian decisions:

"...have been applied to acts or decisions made by reference to criteria or standards which are apparently non-discriminatory (sometimes referred to as 'facially neutral') but which have a discriminatory effect."

42 It is clear from Banovic that it is irrelevant for the purposes of indirect discrimination how or why a condition came into effect. Rather, such provisions are concerned with the existence of a circumstance, that is with the existence of a condition or requirement, which, within the statutory prescription, have a discriminatory effect. As Sackville J pointed out in Commonwealth Bank v HREOC, at p.97, direct discrimination is unlawful regardless of its reasonableness, whereas to be unlawful, a condition or requirement that is neutral in its terms but has a disparate impact on men and women must be "not reasonable having regard to the circumstances of the case." His Honour added:

"It seems to have been established that [the two provisions] are mutually exclusive in their operation: Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-393, per Dawson and Toohey JJ."

43 Section 24(1) in its present form was inserted by the amendments introduced by the Anti-Discrimination Amendment Act 1994 (No. 28). That Act introduced provisions relating to HIV/AIDS vilification and made other amendments to bring some conformity of application to the various forms of discrimination outlawed by the legislation.

44 By the amendments, ss.24 (1) and (3) were omitted but were re-enacted in the form the section now bears, so that, the provisions of sub-s.1(b) are in virtually identical terms as sub-s.(3), save that the introductory provision to the section is framed as an introduction to both paragraphs of sub-s.(1). As the Appeal Panel observed at [AP.17], the amendments collapsed "two discrete sub-sections into one". The amendments were described as "minor" in the Second Reading Speech.

45 If sub-s.(1)(b) is to be given the interpretation for which the Department contends, it would mean that the effect of the 1994 amendments was to remove the concept of indirect discrimination on the ground of sex from the Act and to replace it with two forms of direct discrimination. In the case of direct discrimination under para. (a) motive, or purpose or intention would need to be proved. But if a party relied on para. (b), not only would a gender discriminatory purpose or intention have to be proved, the person aggrieved would also need to prove each element of para. (b). Further, the paragraph, on this construction, would have no application to systemic discrimination where there may be inadvertent discriminatory consequences of particular requirements or conditions. As the Appeal Panel correctly observed at [AP.12], on such a construction "every act of indirect discrimination becomes an act of direct discrimination".

46 The construction for which the Department contends is also denied, in my opinion, by the provisions of sub-s.(1A), introduced as part of the 1994 amendments, which provides:

"For the purposes of subsection (1)(a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex." (emphasis added).

47 By its terms, sub-s.1(A) is confined to para. (a) of s.24(1). If the legislature intended the phrase "on the ground of the person's sex", to apply to both paras. (a) and (b) then there would, or at least should, have been an express provision to that effect. To construe s.24 in a way to give effect to the Department's construction of s.24(1)(b) requires a finding that sub-s.1(A) contains a drafting omission.

48 However, when regard is had to the legislative history of the section, the purpose of the legislation and the terms of sub-s.(1A), I consider that there has been a drafting error in the introductory words of s.24(1), rather than a drafting omission in sub-s.(1A). If that subsection was intended to apply to para. (b) as well as para. (a), the indirect discrimination provisions would be nullified.

49 When an error occurs such that words are used which have no meaning or which negative the statutory purpose, it is both permissible and necessary for the court to omit the words from the section under consideration: Saraswati v. The Queen (1991) 172 CLR 1 especially per McHugh J at p.22. Accordingly, in, my opinion s.24, is properly construed so that the words "on the ground of the aggrieved person's sex" after the word "if" in the opening paragraph of sub-s.(1) have no work to do or are mere surplusage in relation to para. (b). They should be ignored.

330 Given that the wording of ss 24 and 49B are relevantly indistinguishable, the Tribunal would consider itself bound to follow this decision of the Court of Appeal unless it had been subsequently overruled by that Court or overturned by the High Court. The Respondent contended that the High Court's decision on appeal in that case did effect such an overruling. In State of New South Wales v Amery (2006) 230 CLR 174, the High Court by majority did allow the appeal and set aside the Court of Appeal's orders. It should be observed, however, that none of the judgments of any of the Justices who made up the majority in that case specifically dealt with Beazley JA's reasoning set out above or expressly found it to be wrong.

331 The Respondent submitted in its Outline of Submissions handed up to the Tribunal on 26 April 2012 that:

92 On appeal, the High Court in State of New South Wales v Amery considered in detail the terms of s 24(1)(b) of the AD Act. The majority judgment in examining the provision stated that s 24(1)(b) recognised and imposed a legislative prohibition on indirect discrimination then set out s 24(1)(b) inclusive of the opening clause containing the words 'on the ground of the aggrieved person's sex'.

93 It is clear from a careful reading of the majority decision of the High Court in Amery that that Court considered the entire provision operative and no words excluded from the statute. While the High Court did not directly discuss the reasoning of Beazley JA in the NSW Court of Appeal, it is clear on a reading of the majority High Court decision that they did not support it.

94 As a consequence, the High Court decision is authority to support the proposition that "on the grounds of" remains a critical element to be satisfied of in a claim of indirect discrimination and the Respondent submits that it cannot be made out by the Applicant.

(footnotes omitted)

332 The part of the High Court's decision that the Respondent relied upon was found in [48] of the judgment of Gummow, Hayne and Crennan JJ and especially the fact that in setting out the indirect sex discrimination provision of the ADA found in s 24(1), those Justices did not delete any words from the chapeau to s 24(1). We do not accept that the mere fact that the High Court included the words 'on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person' when quoting the applicable statutory provision impliedly rejected Beazley JA's construction and conclusion as to the application of those words in the case before the Court. Accordingly, we consider we are bound by the Court of Appeal's decision as to the construction and application of those words in this case.

333 Notwithstanding this conclusion it might, however, be observed that it may make little if any difference whether the approach advocated by the Respondent or the approach adopted by Beazley JA is adopted. The High Court said in [48] of State of New South Wales v Amery (2006) 230 CLR 174:

48 Section 24(1)(b) recognises and imposes a legislative prohibition on what is often termed "indirect discrimination". In Waters v Public Transport Corporation, Mason CJ and Gaudron J explained that the notion signifies that:

"some criterion has been used or some matter taken into account which, although it does not, in terms, differentiate for an irrelevant or impermissible reason, has the same or substantially the same effect as if different treatment had been accorded precisely for a reason of that kind".

In proscribing such conduct in the context of sex discrimination, s 24(1) relevantly provides:

"A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:

...

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, 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.

(footnotes omitted)

334 This passage expressly directs attention to the nature of indirect discrimination under legislation such as the ADA. What that quotation in [48] of Amery emphasises is that imposing an apparently neutral requirement which actually is a requirement with which a substantially higher proportion of persons without the aggrieved person's disability comply or are able to comply has substantially the same effect as if different treatment had been accorded for an impermissible reason, namely, on the ground of the aggrieved person's disability. Put another way, in indirect discrimination cases the element of 'on the ground of ... disability' does not depend entirely or even principally on the subjective intent or mental state of the perpetrator but may more readily be determined by reference to whether the effect of discriminating on the ground of disability is demonstrated by the comparison of proportions capable of complying. This understanding of "on the ground of" and similar expressions in discrimination legislation is not inconsistent with the approach of Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (2003) 217 CLR 92 at [236] in a direct discrimination case:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

335 In other words, the satisfaction of the element that a substantially higher proportion of those without the disability or of the opposite sex comply can be said also to contribute to satisfying the requirement that the conduct be 'on the ground of the aggrieved person's' disability or sex. Consideration of the reasonableness requirement in indirect discrimination cases may also bear upon whether the 'on the ground of' requirement is satisfied. Indeed, as a result of these considerations it appears that the additional requirement of 'on the ground of ... disability' has little if any work to do in addition to the other elements in establishing indirect discrimination. If this is correct, there appears to be little or no difference in substance between Beazley JA's approach and what the High Court said in Amery.

336 Although the Tribunal believes it is bound to follow the Court of Appeal's decision in Amery v State of New South Wales [2004] NSWCA 404 and accordingly has rejected the Respondent's submission in this regard, this has no impact upon the ultimate outcome of this proceeding.

Conclusions

337 On these bases, the Tribunal finds that Ms Wong has failed to establish either of her claims of indirect discrimination by the Respondent and the complaint should be dismissed in whole under s 108(1)(a) of the ADA.

Costs of the Adjourned Hearing

338 As part of its decision granting the Applicant an adjournment of the final hearing of the matter set down for hearing for 3 days in February 2012, the Tribunal gave leave to the Respondent to make any application for costs that it wished to make in respect of the adjournment, such application to be considered after the determination of the substantive proceedings. At the final hearing in April 2012, the Respondent made an application for costs thrown away as a result of the adjournment of the proceedings in February 2012 and provided written submissions in support of that application. Ms Wong responded to those submissions in written submissions received by the Tribunal on 28 May 2012.

339 The Tribunal's power to award costs in respect of matters such as the present arises under s 88 of the ADT Act and s 110 of the ADA. Section 88 provides:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

340 In respect of s 88(3) of the ADT Act, s110 of the ADA provides:

110 Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings before the Tribunal in relation to a complaint.

341 Accordingly, the Tribunal has power to award costs in the present matter, which involved a complaint under the ADA.

342 Section 88(1) of the ADT Act has been held to establish the 'ordinary rule' (KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8 at [26]) or the 'general principle' (AT v Commissioner of Police [2010] NSWCA 131 at [33]) that each party should be bear its own costs in respect of proceedings in the Tribunal.

343 Nonetheless, under s 88(1A), the Tribunal does have power to award costs 'but only if it is satisfied that it is fair to do so having regard to' what is in effect, given the terms of s 88(1A)(e), a non-exhaustive list of relevant factors.

344 In relation to the application of this section, the Court of Appeal has held in AT v Commissioner of Police [2010] NSWCA 131 at [33]:

That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

345 What the Respondent is in effect asking the Tribunal to do is to depart from the ordinary rule or general principle that each party bear its own costs because it is fair to do so in relation to the adjournment of the hearing in February 2012.

346 The matter was listed for 3 days' hearing commencing on 20 February 2012. On that date Ms Wong did not appear but her sister, a solicitor, appeared for her and sought an adjournment on her behalf. There were essentially 3 bases for the adjournment. First, Ms Wong was not able to attend because of her commitment to attend lectures and tutorials at the University of Sydney. In support of this ground, a letter from the Dean of Medicine was relied upon. This letter was far from satisfactory. In the Tribunal's view its wording reflected the likelihood that it was based on a standard form letter that the Dean might write supporting a student's application to be excused from jury duty. It did not appear that the Dean had turned his mind to the particular situation of Ms Wong, the fact that she was the Applicant and not a juror or the position of the Tribunal. It seemed unlikely to the Tribunal that the claimed 100% attendance required at tutorials and lectures was actually as stringent as claimed, if the Dean had been aware of the relevant circumstances.

347 Secondly, the application for an adjournment was based upon the apparent need for Ms Wong to have more time to respond to the Respondent's evidence and authorities. The Tribunal understood that the Applicant had not complied with the Tribunal's timetable in regard to the filing of evidence.

348 Finally, it was stated that the Applicant required more time in which to file an application for leave to issue summonses directed to the Respondent and others. In this regard, however, the Tribunal notes that Ms Wong may well have been under a misapprehension as to what was required of her and what she was or would be permitted to do in this regard, without any fault on her part.

349 Overall, the Tribunal formed the view that Ms Wong had failed to provide any adequate explanation of why the steps necessary to ensure that the matter could proceed on 20, 21 and 22 February 2012 had not been taken by her or on her behalf. Nonetheless, the Tribunal felt that if Ms Wong were required to proceed on that day her case would be likely to be severely prejudiced. Accordingly, an adjournment was granted and directions were made for the further preparation of the matter.

350 The Tribunal accepts Ms Wong's submission that one of the original timetables had made no provision for the Applicant to respond to the Respondent's evidence and that the setting down of the proceeding for the later dates of 20, 21 and 22 February 2012 was done in spite of the fact that there was a letter from the Dean of Medicine which suggested that Ms Wong would not be available on those dates. The contents of this letter were, however, also unsatisfactory for reasons similar to those given above in relation to a letter from the Dean. In relation to the summonses, the Tribunal notes that Ms Wong may well have been under a misapprehension as to what was required of her and what she was or would be permitted to do in this regard, without any fault on her part.

351 Nonetheless, the matter had been set down for hearing and the Respondent was properly and fully prepared to conduct the final hearing of the matter on 20, 21 and 22 February 2012. It was also reasonable for the Respondent to have taken the view that nothing the Applicant had written in her correspondence with the Tribunal seeking an adjournment absolved the Respondent from its duty to be in a position to proceed on those dates, especially as the Tribunal had indicated that it would consider any adjournment application if made on 20 February 2012 but that, if it was not successful, the parties would be required to proceed on that day.

352 The Tribunal in considering this application for costs and whether it is fair to depart from the general rule and make an order for costs against the Applicant, takes into account that, in the light of the above:

(a) the Applicant can be seen in relation to the adjournment of the proceedings in February 2012 to have been responsible for prolonging unreasonably the time taken to complete the proceedings - s 88(1A)(b);

(b) the Applicant failed to give a fully satisfactory explanation of why she was not in a position to proceed on 20, 21 and 22 February 2012 being any other matter that the Tribunal considers relevant - s 88(1A)(e).

353 In addition to the factors identified in s 88(1A) which may justify a departure from the general rule, the Court of Appeal in AT v Commissioner of Police also referred to the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the ADT Act as being relevant.

354 Section 3(b) to (g) of the ADT Act provide:

3 Objects of Act

The objects of this Act are as follows:

...

(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,

(d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,

(e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

355 Of those objects, the Tribunal considers that, in matters arising under the ADA, the most significant are (b) and (c). Having regard to these objects of the Act, the Tribunal considers it important to bear in mind that the costs orders of the Tribunal should also seek to promote and ensure the efficient, effective, fair, informal and expeditious conduct of matters by the parties and their representatives but not to such an extent as to inhibit access to the Tribunal by complainants, such as Ms Wong, who had a genuine matter to be determined by the Tribunal. This is primarily achieved by awarding costs against a party whose conduct is not conducive to that end but not penalising a legitimate complainant.

356 In all the circumstances and having regard to s 88(1A) and the other matters referred to above, the Tribunal believes that it is fair to make an award of costs against Ms Wong in respect of the adjourned hearing of the matter. The Respondent seeks only costs thrown away because of the adjournment and notes in particular in its written submissions that:

217 The effect of the adjournment was that the Respondent was forced to throw away the costs incurred in engaging Senior and Junior Counsel to be present for the three day hearing.

357 Notwithstanding this, the Tribunal does not believe that fairness requires that Ms Wong be required to pay all of the costs of engaging Senior and Junior Counsel to be present for the three days. It is likely that counsel of the standing engaged by the Respondent in this matter would not have been unengaged in gainful work either in court or in chambers on the two days following the adjournment. Further, the considerations raised by Ms Wong suggest that there were some factors which were not her fault even if she failed to provide a satisfactory explanation of those factors. Accordingly, the Tribunal's view is that it would be fair to order the Applicant to pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.

Orders

358 Accordingly, the Tribunal orders that:

1. the Applicant's Complaint be dismissed in whole.

2. the Applicant pay the Respondent's costs thrown away because of the adjournment granted on 20 February 2012 but limited to one half of the cost of engaging the Respondent's Senior and Junior Counsel for 20 February 2012.

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Decision last updated: 03 July 2012