Altarawneh v Charles Sturt University

[2025] NSWCATAD 116

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Altarawneh v Charles Sturt University [2025] NSWCATAD 116

Hearing dates:

12 May 2025

Date of orders:

23 May 2025

Decision date:

23 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Ziegler, Senior Member

Decision:

(1)   The respondent’s application to set aside the summons in part, and that certain documents not be required for production, is refused.

(2)   Registry is to list both the substantive matter and the “Application for Miscellaneous Matters” filed by the applicant on 14 May 2025, for a directions hearing on the earliest available date.

(3)   By no later than 26 May 2025, the respondent is to collect from the Tribunal registry the documents which were lodged on a confidential basis on 15 May 2025.

(4) The matter is listed for a return of summons hearing on 5 June 2025 at 9.30 AM.

Catchwords:

SUMMONS – relevance – oppression – confidentiality.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

ALL v Sydney Local Health District [2019] NSWCATAD 143

Cameron v Commissioner of Police, NSW Police Force [2016] NSWCATAD 281

Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54

Commissioner for Railway v Small (1938) SR (NSW) 564

CPJ v The University of Newcastle [2017] NSWCATAD 350

Czerniecki v TAFE NSW [2017] NSWCATAD 278

Director General Department of Community Services v D [2006] NSWSC 827

Gabriel v Commissioner of Police [2020] NSWCATAD 51

Hearne v Street (2008) 235 CLR 125

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

Lonsdale v University of Sydney [2015] NSWCATAP 277

Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710

Texts Cited:

None cited

Category:

Procedural rulings

Parties:

Dr Khaled Altarawneh (Applicant)
Charles Sturt University (Respondent)

Representation:

Applicant (Self-Represented)
Australian Higher Education Industrial Association (Respondent)

File Number(s):

2024/00423140

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. Dr Altarawneh, the applicant in these proceedings, is an academic employed by the respondent, Charles Sturt University (the University).

2. On 9 February 2024, Dr Altarawneh lodged a complaint with the President of the Anti-Discrimination Board of NSW (the Board) against the University, alleging discrimination and victimisation in breach of the Anti-Discrimination Act 1977 (NSW) (the AD Act).

3. On 14 November 2024, the complaint was referred to the Tribunal under s 93C(b) of the AD Act on the basis that the Board had unsuccessfully endeavoured to resolve the complaint by conciliation.

4. At the applicant’s request, the Tribunal has issued a summons to the University to produce a number of documents (the summons). The University has identified 737 documents that respond to the summons. The majority of those documents have been produced without controversy. However, the University objects to the production of 69 documents on various grounds, and seeks orders that the summons be set aside in part, and that certain documents not be required for production.

5. The contested documents have been provided to the Tribunal on a confidential basis.

6. The University was legally represented at the return of summons hearing and Dr Altarawneh represented himself.

7. For the following reasons I have decided to refuse the University’s application.

Documents required to be produced

8. The summons sought 18 categories of documents, four of which are relevant to the University’s objections. They are:

1. Category 2 – “Comparator probation documents” for Dr Altarawneh’s colleague Dr Saeed: “documents relating to his probation process during his first 18 months of employment (if applicable and overlapping with 2023-2024), specifically: a. Staff Member’s submission for 6-month and 12-month probation reviews. b. Supervisor/Committee feedback reports for 6-month and 12-month probation reviews”.

2. Category 8 – “Whistleblower System Failure Staff Communications: Copies of any communications issues internally to CSU staff or externally regarding the failure of the whistleblowing system or advising individuals whose complaints may have been lost (from 1 January 2021 to 8 April 2025)”.

3. Category 9 – “Formal Complaint Investigation File (Sept 2023 Onwards): The Complete investigation file concerning Complaint Case ID … from 13 September 2023 to present, including all investigator notes, evidence, witness interview records … internal/external correspondence related to the investigation, draft reports, and decision-making records for the final report issued 26 March 2024”.

4. Category 15 – “Acting Course Director Recruitment (March 2023): Records pertaining to the recruitment process for the Acting Course Director Position (School of Computing Mathematics and Engineering) in or around March 2023, including Position Description, Selection Criteria, applications received (Applicant and Dr Saeed), selection panel notes/communications with applicants (including feedback provided), selection report. Additionally, all communications during the opening period before the deadline closed and after the deadline, including content of emails, feedback support provided to candidates, and any documentation of assistance offered to applicants during the application process".

Legal principles

9. The Appeal Panel summarised the considerations relevant to the grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 (Lonsdale) as follows at [25] – [26]:

In White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36, the Appeal Panel listed these considerations as relevant to the grant of leave to issue summonses:

(a)   legitimate forensic purpose;

(b)   identification of the respondent to an attendance summons ‘with clarity and precision’; and similarly,

(c)   identification of the documents in a documents summons with clarity and precision, rather than setting out a series of questions.

We agree with the respondent’s submissions that to these should be added:

(d)      the respondent must be both competent and compellable (though this will sometimes be a difficult matter for a registrar to address at that stage of consideration);

(e)      a summons should not be over-broad and/or oppressive.

10. In Melhem v Commissioner of Police, NSW Police Force [2016] NSWCATAD 279 the Tribunal said at [12]:

A summons may be set aside for various reasons which sometimes overlap. Broadly, they fall into the categories of abuse of process, oppression of the addressee, insufficient particularisation, lack of apparent relevance and using a summons as a fishing expedition. If a document is privileged from production or it will constitute an offence to produce the document, those matters will also be relevant when deciding whether to set aside a summons.

11. The principles to be applied when considering an application to set aside a summons were summarised by the Tribunal in CPJ v The University of Newcastle [2017] NSWCATAD 350 (CPJ) at [8] to [12]:

The Tribunal’s guiding principle when exercising any power under the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), is to “facilitate the just, quick and cheap resolution of the ‘real issues’ in proceedings”: s 36(1) …

A registrar may, on the application of a party to proceedings or at the direction of the Tribunal, issue a summons: NCAT Act, s 48. NCAT Procedural Direction 2 gives as an example of an objection that can be made to a summons, that the “evidence, documents or other things identified in the summons are not relevant to any issue in dispute in the proceedings”. The Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27].

It is an abuse of process to issue a summons in relation to documents which have no “apparent relevance” to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [26]. It is also impermissible for a party to use a summons for “fishing”. The author Bernard Cairns describes “fishing” as “where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge”: Bernard Cairns, Australian Civil Procedure, Thomson Reuters (10th ed 2014) at 585.

The question is not whether the documents would be admissible in evidence or will “definitely advance the case of the parties” issuing the summons: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [25]. The test is whether the documents sought under the summons have apparent, as distinct from actual, relevance to the case: National Employers’ Mutual General Assn Ltd v Waind [1978] 1 NSWLR 372; Casley-Smith v District Council of Stirling (1989) 51 SASR 447.

In a recent Supreme Court case, Brereton J summarised the principle as being “… that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on or are sufficiently relevant to the dispute; that they “appear relevant in the sense they relate to the subject matter of the proceedings”; or that they could possibly throw light on the issues in the case”: Sharpe v Grobbel [2017] NSWSC 1065 at [35] (footnotes deleted.)

Identification of the issues in the proceedings

12. To determine the issues before me it is necessary to identify the relevant issues in the substantive proceedings. The applicant’s complaint to the Board is the subject of the proceedings. As yet, no points of claim or points of defence have been filed. However, on 14 November 2024 the President of the Board provided to the Tribunal a report which sets out details of the applicant’s complaint (the President’s Report). The President’s Report states that Dr Altarawneh has made complaints in respect of race discrimination and victimisation, that the period of his race discrimination complaint is 22 May 2023 to 9 February 2024, that the period of his victimisation complaint is 18 December 2023 to 19 February 2024, and that the relevant provisions of the AD Act are ss 7, 8, 50 and 53.

13. The President’s Report also includes the following summary of the complaint:

Dr Altarawneh alleges he has been discriminated against by the respondent on the ground of his race in his employment and victimised for complaining…

In brief the complainant alleges:

He was subject to systemic issues in his employment at Charles Sturt University (CSY), including racism, discrimination, harassment and retaliation which included:

- On 22 May 2023 the Acting Engineering Director, Shara Cameron, criticised his accent in a context that implicitly targeted his ethnicity. Ms Cameron stated “Khaled your accent is very heavy when presenting”; repeatedly sought validation for her views from the colleagues present; and despite supportive feedback, continued to criticise his accent, implying it was unsuitable for university presentation.

- On 31 May 2023 Ms Cameron stated “Sometimes I tell Peter he's ‘too white’ for certain events” linking university event representation to skin colour and suggesting that certain racial appearances were preferred for external visibility.

- Ms Cameron harassed him, used offensive language and unfounded accusations of dishonesty during a probation review.

- His initial complaint was ignored or concealed, the accused protected and his concerns disregarded.

- The investigation was biased, and false allegations were spread to damage his reputation.

- During a probation meeting his words were manipulated and achievements concealed, being retaliation for his complaint against Ms Cameron.

…

In brief, the respondent provided information regarding:

- An independent review of Dr Altarawneh’s allegations was conducted, which found:

i) Ms Cameron did comment about the complainant’s accent, however, did not do so because of his race, origin or nationality.

(ii) All the allegations of race discrimination, harassment and bullying were not substantiated.

(iii) Ms Cameron failed to act in accordance with University standards by virtue of making comments about Dr Altarawneh’s accent. Dr Cameron apologised two weeks later.

(iv) The investigation and outcomes were delayed due to a number of factors, not being about race and/or victimisation.

- The complainant’s allegations including: retaliation by the 12-Month Probation Committee; spreading false/misleading information; neglect of crucial email communications; loss of initial complaint; delays in investigation, have all been previously addressed, and none of the claims were found to be substantiated.

- The University denies the complainant’s assertions about discriminatory and dismissive treatment in relation to purchasing additional leave, and flexible working … Since commencing employment Dr Altarawneh has refused to comply with his employment contract which required attendance at Bathurst Campus.

…

Dr Altarawneh reiterated his allegations and asserts he was discriminated against because of his race and victimised when he complained of the discriminatory conduct.

14. Attached to the President’s Report are several other documents including the complaint form initially lodged by the applicant with the Board, and submissions made to the Board by each of the applicant and the University.

15. The issues in the substantive proceedings will include:

1. Whether the University discriminated against the applicant in his employment on the ground of his race, in breach of s 8 of the AD Act; and

2. Whether the university subjected the applicant to any detriment in any circumstances on the ground that the applicant had complained of the alleged discrimination, in breach of s 50 of the AD Act.

16. Of relevance will be s 7(1)(a) of the AD Act which provides:

(1)  A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

(a)  on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race.

Objection to the summons on the ground of relevance

17. Category 2 of the summons seeks documents relating to the probation process of another employee of the University during his first 18 months of employment, “if applicable and overlapping with 2023-2024”.

18. The University says it has identified five documents responsive to category 2, but that it objects to the disclosure of those documents on the basis of relevance, and also on confidentiality grounds. I will deal with the confidentiality issue later in these reasons.

19. In relation to relevance, the University submits, in summary:

1. there were two applications received for a recent promotion opportunity to the role of Acting Course Director. One of those applicants was Dr Altarawneh and the other – Dr Saeed - was the successful candidate. Documents about Dr Saeed’s application for a promotion have already been produced in response to the summons.

2. Dr Saeed has recently passed probation and Dr Altarawneh has concerns about his own probation. However, there is no connection between the promotion recruitment process and Dr Saeed’s probation, and there is no clear matter in issue in the proceedings with regard to the probation process. Dr Saeed’s probation materials are irrelevant to the proceedings and not legitimate comparator documents.

3. It is open to the Tribunal to infer, in circumstances where the documents sought are outside the scope of relevance, that the applicant is seeking access to those documents for an illegitimate purpose.

20. The applicant submits in summary:

1. The documents in issue are directly relevant to the subject matter of the proceedings because they are comparator material: that is they are relevant to assessing whether the applicant was treated less favourably than a person of a different race in comparable circumstances.

2. Dr Saeed is an appropriate comparator as he is an academic employed at the University in the same school, grade and probation cycle as the applicant and is subject to the same performance standards and review processes.

21. As the Tribunal said in Cameron v Commissioner of Police, NSW Police Force [2016] NSWCATAD 281 at [13] – [14]:

In determining whether, on a prohibited ground, there has been direct discrimination, the Tribunal determines whether there has been differential treatment (that is, whether the victim was treated less favourable than a comparator), and if so, whether that treatment was given on the prohibited ground – often referred to as ‘causation’: Heber v Glenn Henney & Sons Pty Limited (No 2) [2007] NSWADT 230. In respect of each decision the subject of complaint, both differential treatment and causation are considered below.

For the purpose of determining differential treatment, the comparator is a person with all the attributes of the applicant, other than the attributes alleged to have given rise to the discrimination (in this case, disability and carers responsibilities), in the same circumstances or circumstances which are not materially different: Perera v Director-General, Department of Education and Communities [2012] NSWADT 108 at [77].

22. The University has not contradicted the applicant’s submission that comparator evidence will be relevant in these proceedings for the purpose of determining whether Dr Altarawneh has received differential treatment in his employment. Nor has it contradicted Dr Altarawneh’s contention that Dr Saeed will be an appropriate comparator. Indeed, it is implicit from the University’s submission that it agrees with Dr Altarawneh that Dr Saaed will be an appropriate comparator in the proceedings.

23. In this context, the University’s submission that documents about Dr Saeed’s probation process are not relevant because there is no connection between the recruitment for Acting Course Director and the probation process, takes an inappropriately narrow approach to the issues in dispute. The dispute involves the applicant’s treatment as an employee of the University. Relevant to that issue will be whether the applicant has received less favourable treatment in his employment than any comparator. Treatment of the applicant and a comparator during any comparable probation process would have apparent relevance to that issue. This is particularly the case given that concerns about the applicant’s probation process are squarely in dispute. The applicant’s initial complaint form refers to incidents which occurred at probation meetings, the applicant’s submissions to the Board contain several references to probation meetings and alleges “retaliation and discriminatory conduct” at probation meetings, and the University’s submission to the Board includes references to a “probationary period incident”.

24. For these reasons I am satisfied that there is a reasonable basis for supposing that the category 2 documents have apparent relevance to the issues in dispute.

Oppression

25. The University objects to the disclosure of the category 9 documents on the basis of oppression.

26. Category 9 seeks the University’s complete investigation file concerning Dr Altarawneh’s allegations “from 13 September 2023 to present”, including investigator notes, evidence, witness interview records, correspondence related to the investigation, draft reports and “decision-making records for the final report issued 26 March 2024”.

25. The University submits that the scope of this category is oppressive because, in summary:

1. It involves an open-ended date range.

2. Even if the date range was limited to the date of the summons (ie 8 April 2025), the date range is too broad.

3. An appropriate date range would be 13 September 2023 to 26 March 2024, being a range that ends with the date of the subject investigation report.

4. The report the subject of category 9 was finalised on 24 March 2024 and it would be overly broad to require production of documents for the period after the finalisation of the report.

5. There exist 138 documents within the University’s proposed alternative date range, and that these have already been produced.

6. There are 60 documents which the University has identified as responsive to category 9 which relate to the period after 25 March 2024. However, the University has not yet reviewed those documents.

28. The applicant submits in summary:

1. The category does not involve an open-ended period. The term “to present” means to the date of the summons, being 8 April 2025.

2. The University has conceded that the documents have been gathered ready for production so no additional burden arises.

3. The applicant pleads ongoing victimisation, including retaliatory measures taken by the 12-month probation committee on 11 January 2024 and therefore post report documents are directly relevant. Victimisation is inherently continuous, it does not cease with the publication of an investigative report.

4. The University’s arbitrary cut-off date would shield probative evidence, frustrate the AD Act’s purpose and materially prejudice the applicant in making his claim for victimisation.

29. A summons may be oppressive if it is too wide or uncertain: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710. The documents for production must be identified with reasonable particularity: Commissioner for Railway v Small (1938) SR (NSW) 564, 574-575.

30. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel said at [38]:

While it is inappropriate to seek to define all circumstances in which a summons is liable to be set aside, a summons may also be set aside where it is oppressive because:

(1)   It imposes an unduly onerous obligation upon a person to collect and produce documents: see Commissioner of Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215;

(2)   It involves the production of numerous documents and would unduly impinge upon a party’s preparation for conduct of, the proceedings: Tony Azzi Automobiles Pty Ltd v Volvo Car Australia Pty Ltd [2006] NSWSC 283 at [8].

31. Whilst the date range for the category 9 documents could have been articulated with greater specificity, it is capable of being understood. It is sufficiently apparent that the date range is not open-ended and that the words “to present” in category 9 mean to the date of the summons, ie 8 April 2025.

32. The University’s submission in relation to this issue is otherwise difficult to understand. It does not assert that the summons would be oppressive because the documents in question are not relevant, or serve no legitimate forensic purpose. In any case, my view is that the documents in this category are indeed relevant. There is a reasonable basis for supposing that the documents in the University’s file pertaining to its internal investigation of Dr Altarawneh’s allegations will have apparent relevance to the subject matter of the proceedings, including whether the University has engaged in discriminatory conduct and whether it has subjected Dr Altarawneh to a detriment on the ground that he complained of the allegedly discriminatory conduct. This is the case whether or not the documents in the file post-date the finalisation date of the University’s internal report.

33. The University says that although it has identified and collated the 60 responsive documents, it has not yet reviewed them. However, it has not explained why this fact renders category 9 of the summons oppressive, and has not otherwise explained why this category of the summons should be set aside on the grounds of oppression.

34. For these reasons, I see no basis for setting aside category 9 of the summons on the ground that it is oppressive.

Confidentiality

35. The University says it makes an objection to production “on the basis of privilege, confidentiality or sensitivity” in relation to the following four documents which have been identified as responsive to the summons:

1. A draft investigation report prepared by a former staff member of the respondent which contains, among other things drafting notes and details of confidential witness interviews (responsive to category 9);

2. An email which contains details of a confidential report by a party unrelated to these proceedings (responsive to category 8);

3. A record of a witness interview given with assurance of confidentiality (category 9); and

4. Two documents concerning an application made by a staff member not a party to these proceedings (category 15).

36. The University also objects to the disclosure of the category 2 documents discussed above (relevant to Dr Saeed’s probation) on the ground that they are confidential to Dr Saeed.

37. The University has not expressed with any clarity the legal basis on which these submissions are made. It has referred me to a number of cases (including Lonsdale; ALL v Sydney Local Health District [2019] NSWCATAD 143; CPJ; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307), none of which deal with issues of confidentiality or sensitivity of documents in the context of summonses.

38. The University also refers to Gabriel v Commissioner of Police [2020] NSWCATAD 51 (Gabriel) which it says is authority for the proposition that it is necessary to balance the parties’ competing interests when deciding whether documents should be disclosed pursuant to the summons. It refers to the University’s interest in facilitating the future provision of information on the basis of confidence, against the applicant’s interest in obtaining those documents for the purpose of the proceedings.

39. Gabriel did not involve a summons at all but rather an application made under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act), and the balancing exercise which must be taken under that Act when determining whether there is an overriding public interest against disclosure of government information.

40. Gabriel is not relevant to the issues before me. The GIPA Act establishes its own regime for access to government information. Notably, s 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of public information. That general public interest is subject to s 13 of the GIPA Act which relevantly provides that “there is an overriding public interest against disclosure of government information … if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure”. Section 14 of the GIPA Act concerns the determination of whether there is an overriding public interest against disclosure of public information. It says that there is a conclusive presumption that there is an overriding public interest against disclosure of the government information described in Sch 1 to the GIPA Act, and that the table to s 14 sets out an exhaustive list of the only other considerations that may be taken into account when determining whether there is an overriding public interest against disclosure. Those provisions are specific to the GIPA Act and it is in that context that the balancing exercise referred to in Gabriel was required.

41. This matter is concerned with the production of documents pursuant to a summons issued under s 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). A summons is a compulsory process of the Tribunal. The balancing exercise referred to in Gabriel has no application.

42. The University also referred to NCAT Procedural Direction No.2 (Summonses), which states at [40] that, where a document is “privileged, confidential or should not be disclosed for some other reason, a person with a relevant interest can object to access being given and the Tribunal can restrict or prohibit access to those documents or other things”.

43. Procedural Direction 2 was issued under s 26 of the NCAT Act pursuant to which the President of the Tribunal may give directions relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal. Procedural Direction 2 contains such directions, and guidelines, to assist parties in relation to matters relating to summonses. It explains the process involved when there is an objection to production of documents, including on the ground that the documents are privileged, sensitive or confidential.

44. However, where a party asserts that a document should not be produced because it is privileged, sensitive or confidential, there must be a legal basis for the objection, such as that the document is subject to legal professional privilege or some other privilege referred to in the Evidence Act 1995 (NSW) (see NCAT Act, s 67). The University did not assert that any of the documents requested under the summons were subject to privilege. It also did not refer to any other law which would found a basis for its submission that the documents in question should not be required for production on the ground of confidentiality.

45. I also observe that in any event the University provided no evidence supporting its assertions as to the confidential nature of the documents. For example, it says that certain of the contested documents contain information obtained pursuant to assurances of confidentiality, but has provided neither details of such assurances nor substantiating evidence.

46. For these reasons am I finding against the University in relation to this issue.

47. I note that production of documents to the Tribunal pursuant to a summons does not constitute a general release of those documents. Such documents are produced for the purpose of the legal proceedings before the Tribunal only. That production is subject to the implied undertaking that the documents cannot be used by the applicant for any purpose other than that for which they were produced without leave of the Tribunal unless they are received into evidence: Hearne v Street (2008) 235 CLR 125 at [96].

48. I also note that s 64 of the NCAT Act gives the Tribunal broad powers to prohibit or restrict the disclosure of the contents of a document lodged with the Tribunal or received into evidence by the Tribunal in relation to proceedings before it. The exercise of those powers is potentially available to the University, upon application, in relation to any documents produced pursuant to the summons.

49. Finally, although not articulated in its written submissions, the University suggested in its oral submissions that the categories of documents relevant to this objection have no apparent relevance to the issues in dispute. I have already addressed above the relevance of the category 2 and category 9 materials. For completeness, with regard to the other categories of documents:

1. Category 8 documents (regarding failures of the University whistleblower hotline) have apparent relevance because one of the issues in dispute involves whether a complaint made by the applicant via the University’s whistleblower hotline was deliberately overlooked by the University.

2. Category 15 documents (records pertaining to the recruitment process for Acting Course Director) also have apparent relevance because one of the issues in dispute is whether the University discriminated against Dr Altarawneh in the recruitment for that role.

Conclusion

50. For all of these reasons I am refusing the University’s application.

51. At the hearing I made orders extending the procedural timetable leading up to the hearing. Given that the contested documents will now need to be made available to the applicant, it is likely that a further amendment of the timetable will be required. In addition, on 14 May 2025 the applicant lodged an “Application for Miscellaneous Matters” regarding, among other things, alleged non-compliance with the summons. Directions will need to be made in relation to that application.

52. Accordingly, I am ordering that the Tribunal’s registry list the matter for a directions hearing at the earliest available date.

53. I note that the University has lodged the contested documents with the Tribunal on a confidential basis. Ordinarily, I would order that the applicant be granted access to those documents. However, given that the University submitted that it has not yet reviewed all of those documents, the more appropriate step in this instance would be to require the University to collect the confidential bundles from the Registry, and for the matter to be listed for a further return of summons hearing to allow for the formal production of the remaining responsive documents. I am making orders accordingly.

Orders

54. I make the following orders:

1. The respondent’s application to set aside the summons in part, and that certain documents not be required for production, is refused.

2. Registry is to list both the substantive matter and the “Application for Miscellaneous Matters” filed by the applicant on 14 May 2025, for a directions hearing on the earliest available date.

3. By no later than 26 May 2025, the respondent is to collect from the Tribunal registry the documents which were lodged on a confidential basis on 15 May 2025.

4. The matter is listed for a return of summons hearing on 5 June 2025 at 9.30 AM.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 May 2025