Andreopoulos v University of Canberra
[2020] ACAT 95
•19 November 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ANDREOPOULOS v UNIVERSITY OF CANBERRA (Discrimination) [2020] ACAT 95
DT 41/2019
Catchwords: DISCRIMINATION – referral of discrimination complaint to the ACAT by Human Rights Commission – whether complainant misled tribunal by failing to appear before the tribunal or failing to disclose actual participant and whether the complainant intended her mother to appear in her place before the tribunal – proper authorisation to represent the complainant pursuant to continuing power of attorney – withdrawal of authorisation by tribunal – application to appoint a litigation guardian refused –proceeding with hearing in the absence of the complainant where complainant withdrew – application for summary dismissal of the complaint as an abuse of process and lacking substance – where all parties’ evidence before the tribunal – complaint not summarily dismissed – consideration of whether change by university to reasonable adjustment for exams direct or indirect discrimination – direct or indirect discrimination not established – complaint dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 39, 47
Disability Discrimination Act 1992 (Cth) ss 31, 32, 33, 34
Discrimination Amendment Act 2016
Discrimination Act 1991 ss 7, 8, 18, 53E
Human Rights Act 2004 ss 27A, 40B
Human Rights Commission Act 2005 ss 7, 8, 53A, 53CA, 53E
Powers of Attorney Act 2006 ss 57, 63
Subordinate
legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 rr 41, 45, 47
Disability Standards for Education 2005 (Cth)
Cases cited:Australian Capital Territory v Wang [2019] ACAT 65
Complainant 201823 v Insurance Australia Group trading as NRMA [2019] ACAT 64
Cheluvappa v University of Canberra [2018] ACAT 108
Cooley v Australian National University [2007] ACTDT 2
Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Jamieson Mary v Australian Workers Union and Anor [1999] VCAT 268
Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50
Mewett v University of Canberra [2018] ACAT 61
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 43
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales [2003] HCA 62
TGD v Australian National University [2019] ACAT 81
The State Electricity Commission Board v Rabel [1998] 1 VR 102
Tomlinson v Ramsey Food Processing Limited [2015] HCA 28
UBS AG v Tyne [2018] HCA 45
Tribunal: Senior Member M Orlov (Presiding)
Senior Member K Katavic
Date of Orders: 19 November 2020
Date of Reasons for Decision: 19 November 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL DT 41/2019
BETWEEN:
DESPINA ANDREOPOULOS
Applicant
AND:
UNIVERSITY OF CANBERRA
Respondent
TRIBUNAL:Senior Member M Orlov (Presiding)
Senior Member K Katavic
DATE:19 November 2020
ORDER
The Tribunal orders that:
1.The respondent’s application pursuant to section 32 of the ACAT Act is dismissed.
2.The complaint is dismissed.
3.The orders made on 30 April 2020 pursuant to section 39 of the ACAT Act are set aside.
4.There is to be no public access to the Tribunal file.
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal
CONTENTS
ORDER
REASONS FOR DECISION
Introduction
Alleged ‘discrimination’ in the context of the complaint
Events and procedural history leading up to the hearing
The hearing
The evidence
The University’s application for summary dismissal of the complaint
Section 32(c) – the ‘abuse of process’ ground
Section 32(b) – the ‘lacking in substance’ ground
Factual background
Relevance
The regulatory framework for making reasonable adjustments
Reasonable adjustment plans explained
The complainant’s RAP issued in semester 1, 2015
The complainant’s amended RAP issued in semester 2, 2016
The complainant’s RAP issued at the start of semester 2, 2017
Academic staff refuse to allow additional time for viva exams
Was the RAP issued in semester 2, 2016 intended to apply to NM1 only?
I&E consults the complainant before amending the adjustment
The first viva exam in MI1
I&E consults the complainant before amending the adjustment again
The second viva exam in MI1
Legal action is threatened
Factual findings
Considerations involved in the University’s refusal to allow additional time
Course accreditation
The role of viva exams in ensuring patient safety
The role of viva exams in maintaining the academic integrity of the course
The role of viva exams in preparing students for clinical placement
Consideration
Direct discrimination
Indirect discrimination
Conclusion
REASONS FOR DECISION
Introduction
1.The complainant in this matter, Despina Andreopoulos (complainant), was a student at the University of Canberra (University). In 2015 she enrolled in the Bachelor of Physiotherapy course at the University, for which she received some credits for subjects undertaken earlier as part of her studies for a Bachelor of Science and Bachelor of Arts degree from Monash University.[1]
[1] Exhibit R4 attachment A – Academic Transcript; exhibit A1.23
2.The complainant has suffered from Attention Deficit Hyperactivity Disorder (ADHD) since childhood. At the commencement of her studies at the University, she registered with the University’s Inclusion and Engagement Section (I&E). I&E’s role includes to provide support for a student with a disability by providing a reasonable adjustment plan (RAP), developed in consultation with the student and the school, which is intended to balance, among other things, the student’s disability, the effect of the adjustments on the student’s ability to achieve the learning outcomes, the effect of the adjustments on other students, and the requirement to maintain the academic integrity of the course. I&E developed a RAP in consultation with the complainant and the school of physiotherapy in 2015 and again in 2016.
3.Clinical exams, also referred to as Viva exams, are an integral part of the University’s assessment requirements for the physiotherapy degree. In the second semester of 2017, to advance to the next stage of the course, the complainant was required to pass a unit known as Musculoskeletal Intervention 1 (MI1). The assessment for MI1 included two Viva exams, comprising 30% and 40% respectively of the total marks for the subject.[2]
[2] Exhibit R15 attachment J – Unit Outline for Musculoskeletal Interventions 1 – pages 11 and 12
4.On 10 August 2017, I&E notified the complainant that that she would receive up to 15 minutes extra time for clinical exams as part of her RAP, effective to the end of the year. She had received a similar adjustment in the second semester of 2016. This changed on 21 September 2017, shortly before she was due to undertake her first Viva exam in MI1, when I&E notified the complainant that she would receive only 5 minutes additional reading time and no additional time for the practical, instead of the additional 15 minutes she was expecting. The University’s position is that the considerations involved in the decision not to allow the complainant additional time included course accreditation requirements, patient safety, maintaining academic integrity of the course, preparing students for clinical placement and fairness to other students.
5.The complainant failed her first Viva exam for MI1 in October 2017. The physiotherapy school refused I&E’s subsequent request for the complainant to be given additional time for the practical but agreed to offer the complainant an additional one-on-one practice session.
6.The complainant failed her second Viva exam also. She failed MI1 as a result and subsequently withdrew from the physiotherapy course.
7.On 5 August 2019, the complainant made a complaint to the ACT Human Rights Commission (HRC) in which she claimed that the University:
…directly discriminated against me as a student, on the basis of my disability. The education provider failed to continue to make the reasonable adjustments so that I can continue to participate in the physiotherapy course. Without the continuation of my reasonable adjustment I was unable to carry out the inherent requirements of the physiotherapy program, as a result, was forced to end my studies, of three years, costing me a massive loss of $50,000 plus, this includes university accommodation and HECS fees.
8.On 18 November 2019, the HRC notified the complainant that it considered conciliation was unlikely to be successful. On 29 November 2019, at the complainant’s request, the HRC referred the complaint to the Tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). A referral from the HRC is treated as an application made under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[3] We will refer to the application as the ‘complaint’ to distinguish it from applications for interim or other orders filed subsequently by both parties, to which we refer later.
[3] Mewett v University of Canberra [2018] ACAT 61 at [11]
9.The complaint was listed for hearing for two days, commencing on 25 May 2020. The complainant appeared by video link at the start of the hearing, but subsequently withdrew and the Tribunal proceeded to hear the matter in her absence. The circumstances in which that happened are unusual and require explanation. We do so later in these reasons.
Alleged ‘discrimination’ in the context of the complaint
10.The complainant claims that the University discriminated against her “by the removal of my fifteen minutes in semester 2 2017 using the Australian Physiotherapy Association as the excuse”.[4] She claims the real reason for the University’s refusal to give her additional time is because of her disability. Without additional time for the Viva exams, she claims she could not pass the exams and continue the course because of her ADHD.
[4] Exhibit A20 - email from the complainant to the tribunal sent on 4 May 2020 at 8:29AM [Re: in reply to Gretta’s request for an extension of time to provide statements] in which the complainant confirmed that “I am not complaining of anything else…”
11.‘Disability’ is a protected attribute under section 7(1)(e) of the Discrimination Act 1991 (Discrimination Act). The complainant’s ADHD, which causes her problems with concentration, task persistence, time management and anxiety, is a disability.[5]
[5] Exhibit A1.2 – letter from Dr Jarman dated 15 December 2016; exhibit A1.3 – letter from Dr Grocott dated 5 December 2017. See also paragraphs 124, 130, 135, 190, 199 above
12.Under section 8 of the Discrimination Act, a person may be directly or indirectly discriminated against, or both. Direct discrimination occurs when a person treats another person unfavourably because of a protected attribute. Indirect discrimination occurs when a person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute. However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
13.Section 18(2)(c) of the Discrimination Act makes it unlawful for an educational institution to discriminate against a student “by subjecting the student to any other detriment”.
14.Although the complainant characterises the University’s treatment of her as direct discrimination, the essential facts upon which she relies – namely the removal of additional time for the Viva exams, causing her to fail and be unable to continue the course – are equally capable of being characterised as indirect discrimination. Although at one time direct discrimination and indirect discrimination were considered mutually exclusive categories of discrimination under the legislation as it stood at the time, amendments to section 8 by the Discrimination Amendment Act 2016 make it clear that discrimination may occur when a person discriminates directly or indirectly, or both, against a person.[6] They are not mutually exclusive and may arise out of the same set of circumstances.
[6] Australian Capital Territory v Wang [2019] ACAT 65 at [159]
15.The University conducted its case on the basis that the complaint involves claims of direct and indirect discrimination. Evidentiary issues relevant to a claim of indirect discrimination were discussed in the directions hearings before Senior Member Orlov and the notation appearing at the end of the orders made on 30 April 2020 are directed to that issue. The bulk of the University’s evidence concerns the question whether the University acted reasonably in refusing to allow the complainant additional time for the Viva exams and the University made submissions on the premise that indirect discrimination is an issue the Tribunal must decide.
16.We are satisfied, therefore, that the complainant’s characterisation of the University’s conduct as direct discrimination is not determinative and that it is necessary for the Tribunal to consider whether the evidence establishes that direct or indirect discrimination has occurred.
17.Section 53CA(2) of the HRC Act provides for the onus of proof where a complaint is referred to the ACAT about direct or indirect discrimination.
18.A rebuttable presumption that direct discrimination has occurred will arise in this case if the complainant establishes that the treatment by the University about which she complains – relevantly, the refusal to allow her additional time for Viva exams for which her RAP provided – was unfavourable and was because of her disability. The complainant must present evidence that enables the Tribunal to decide, in the absence of any other explanation, that the unfavourable treatment was because of her disability. If such a presumption arises, it may be rebutted if the University establishes the unfavourable treatment was not because of the complainant’s disability.
19.A rebuttable presumption that indirect discrimination has occurred will arise in this case if the complainant establishes that the University’s requirement – relevantly that she undertake Viva exams without additional time for the practical component – had, or was likely to have, the effect of disadvantaging her. The complainant must present evidence that enables the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging her was because of her disability. The presumption will not arise if the University establishes that the requirement was reasonable in the circumstances, or may be rebutted if the University establishes that the effect of disadvantaging the complainant was not because of her disability.
20.In Kidman v Casino Canberra Pty Ltd,[7] the tribunal considered the issue of unfavourable treatment to be a question of fact. The test is objective rather than comparative. The Tribunal noted that:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[8]
[7] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22]
[8] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]-[7]. See also, Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
21.‘Unfavourable treatment’ has been said to encompass acts or omissions which result in some detriment, being loss, damage or injury.[9]
[9] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi, Patricia Anne v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgelyv Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57])
22.In Australian Capital Territory v Wang, the tribunal noted that the words ‘effect’ and ‘disadvantaging” are not defined in the Discrimination Act.[10] The tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne v Discrimination Commissioner[11] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd[12]:
[22] … While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison… or means specially favourable to success, interest or any desired end …
[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint…
[10] Australian Capital Territory v Wang [2019] ACAT 65 at [185]
[11] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22] and [24]
[12] [2001] FCA 379
23.The Tribunal must have regard to the educational context in which the University’s alleged conduct occurred. In Purvis v New South Wales, Gleeson CJ held, in respect to the Disability Discrimination Act 1992 (Cth):
The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.[13]
[13] Purvis v New South Wales [2003] HCA 62 at [7], per Gleeson CJ
24.Section 53E of the HRC Act sets out the matters to be considered and the kinds of orders the Tribunal can make if it finds that discrimination has occurred. Section 53E(2) provides that the tribunal must make one or more of the orders mentioned in the subsection, including that the person complained about pay a stated amount of compensation for any loss or damage suffered by the other person because of the discrimination. In this case, the only relief the complainant seeks is damages for financial loss, comprising her accommodation expenses paid to UniLodge for the three years she resided in Canberra and the HECS fees for which she is liable for the 15 units she undertook towards the Bachelor of Physiotherapy degree. If the complainant establishes that direct or indirect discrimination has occurred, she must present evidence that enables the Tribunal to find, on the balance of probabilities, that the discrimination materially contributed to the losses she claims.[14]
[14] Australian Capital Territory v Wang [2019] ACAT 65 at [89] referring to Kovac v Australian Croatian Club Ltd (No 2) [2016] ACAT 4 at [51]-[55]
25.For the reasons that follow, the Tribunal is not satisfied that the University directly discriminated against the complainant. The Tribunal is satisfied that the University’s refusal to allow her the additional time for Viva exams for which her RAP provided was ‘unfavourable treatment’ within the meaning of section 8(2) of the Discrimination Act, but the Tribunal is not satisfied that the unfavourable treatment was because of her disability.
26.The Tribunal is not satisfied that the University indirectly discriminated against the complainant. The Tribunal is satisfied the University’s requirement that she undertake Viva exams without additional time for the practical component had the effect of disadvantaging the complainant, but the Tribunal is satisfied that the requirement was reasonable in the circumstances.
27.Further, the Tribunal is satisfied that even if the University’s conduct did amount to discrimination, the complainant has failed to establish the University’s conduct materially contributed to the losses she claims. The complainant failed MI1 because she did not practice, study, or prepare adequately for the Viva exams. The extra time she claims she should have received would not have altered the result.
28.Accordingly, the Tribunal considers the complaint must be dismissed.
Events and procedural history leading up to the hearing
29.On 6 January 2020, the complainant filed and served a timeline of events.[15] The timeline asserts that:
(a)the RAP provided to the claimant on enrolment in January 2015 included a 15-minute extension when undertaking Viva assessments;
(b)the RAP applied to 2015 semester 1 and 2 and continued in 2016 semester 1 and 2;
(c)the RAP continued in 2017 semester 1;
(d)in 2017 semester 2 “my adjustment plans were abruptly removed without explanation”;
(e)an email from Professor Jeremy Witchalls[16] to I&E on 18 September 2017 (the contents of which are discussed later) “shows direct discrimination by the education provider because the faculty staff were all aware that I had an adjustment plan in place for three years. The faculty staff were also aware that in my previous viva assessments the additional time was included in the practical component”;
(f)the claimant failed her first Viva assessment “due to the abrupt removal of the adjustment plan” and that Professor Witchalls did not provide her with any feedback.
[15] Exhibit A3
[16] Professor Jeremy Witchalls is Professor of Musculoskeletal Intervention and, at the relevant time, was the course convenor
30.In a separate document, also filed on 6 January 2020, the complainant claims that “due to my severe anxiety I was unable to complete the viva assessment on time”.[17]
[17] Document titled ‘Submission’ forming part of Exhibit A4
31.The University filed a response to the complaint and a chronology of events on 24 January 2020.[18]
[18] Exhibit R1 – allowed as a submission, not as evidence
32.On 29 January 2020, the complainant wrote to the tribunal at length, setting out various reasons for ‘rejecting’ the University’s response to her discrimination claim and alleging that an email dated September 2017, upon which the University intended to rely, was fabricated. The complainant alleged that “the University’s reply is fraudulent and warrants a full investigation to [sic] the authenticity of such emails that has been produced as evidence in an attempt to dismiss my complaint of direct discrimination.”[19] In the same letter, the complainant refers several time to the head of the physiotherapy program, whom she identified as ‘Ms Jenni Scarveli’, ‘Ms Jenni Scraveli’ and “Ms Jenni Scravelli”.[20] The complainant claims to have been “in close contact” with ‘Ms Scravelli’ and that “faculty’s senior staff, were aware…[she]…was assisting and supporting me because of [sic] the faculty withdrew the additional time for the VIVA assessment”. The complainant went on to state:
The emails between myself and Ms Jenni Scravelli, were dated in September 2017, in the same month the so called email has been dated, therefore why wasn’t the head of physiotherapy Ms Jenni Scravelli also produced as evidence, raising questions as to the legitimacy of the so called emails.
Ms Jenni Scravelli may no longer be the head of the physiotherapy program, even so, the university had the responsibility to contact such an important senior staff member… since a student has complained of discrimination. However, it seems, it wasn’t in the university’s best interest to do so, and decided to ignore the emails that proves why I had failed the VIVA assessment, because the university abruptly withdrew the additional time that I was allowed for the VIVA assessment.
Unfortunately, the day the university received my discrimination complaint, I lost access to my university email account. The university intentionally barred me from using my account to download further emails for evidence to the tribunals.
As such, I am also requesting to permission to access my university emails to be able to download the emails between myself and the head of the physiotherapy program to prove to that I have been discriminated on the basis of my disability. [errors in original]
[19] Exhibit A5
[20] Professor Jennifer M. Scarvell is the current Associate Dean of Research and Innovation at the University of Canberra and is the former Head of School of Health Sciences and, from August 2011 to January 2017, the former Discipline Lead in Physiotherapy at the University.
33.On 29 January 2020,[21] and again on 12 February 2020,[22] the complainant wrote to the tribunal reiterating her claim that the University had directly discriminated against her and commenting on documents and the University’s response. On the second occasion, the complainant wrote:
Please note, that due to the complexity of the case, the contradicting information provided by the university and the bullying while [sic] a student to remove the additional time, I am now having legal representation to act on my behalf, I suffer from severe anxiety, and would be unable to cope with such intimidation from the witnesses. Further, I will NOT be taking the stand due to medical advice. I believe there is sufficient evidence in the Respondent’s response for the tribunal to make a fair and reasonable decision to the outcome of my complaint/claim.
[21] Exhibit A6
[22] Exhibit A7
34.On 16 April 2020, the University filed an application for summary dismissal of the complaint pursuant to section 32(2) of the ACAT Act, on the grounds that the complaint was frivolous or vexatious, or lacked substance.
35.The application precipitated a flurry of emails from the complainant in which she responded to the University’s submission.[23] She also filed an application for a suppression order pursuant to section 39 of the ACAT Act.
[23] Exhibit A8 (email to Ms. Cuthel, cc: ACAT sent on 17 April 2020 at 3:39 pm); exhibit A9 (email to ACAT, cc: Ms. Cuthel sent on 17 April 2020); exhibit A10 (email to ACAT, cc: Ms. Cuthel sent on 22 April 2020); exhibit A11 (email to ACAT: cc Ms. Cuthel sent on 23 April 2020); exhibit A12 (email to ACAT: cc Ms. Cuthel sent on 24 April 2020 at 4:13 pm Subject: strong evidence for hearing Andreopoulos Vs UC)
36.On 30 April 2020, the tribunal, constituted by Senior Member Orlov, heard the applications. The hearing was conducted by WebEx. [24] The complainant appeared by telephone, having previously informed the tribunal that she did not have access to a computer.
[24] WebEx is a virtual meeting program adopted by the Tribunal to conduct hearings during operational changes put in place due to COVID-19.
37.Whether it was the complainant who appeared by telephone on that day and a subsequent occasion, or her mother, becomes important later.
38.At the start of the hearing, an ACAT registry staff member telephoned each party from the telephone located in the hearing room to commence the hearing. The audio recording of the hearing records the staff member saying: “Is this Despina?” to which a female voice responds, “Yes, it is” after which there is the following exchange:
Senior Member Orlov: Ms Andreopoulos, you are appearing in person?
Response (female voice): Yes, you mean right now or in the courtroom. I am confused.
Senior Member Orlov: You are representing yourself?
Response (female voice): Yes, correct. That’s correct.
39.At various times during the hearing, Senior Member Orlov addressed the person participating as the complainant by name. The person did not say anything to contradict the impression that it was the complainant who was participating in person.
40.The tribunal made orders pursuant to section 39 of the ACAT Act prohibiting, until further order, publication of matters contained in documents filed with or received by the tribunal and requiring any hearing to take place in private. The tribunal dismissed the University’s application for summary dismissal and made orders for the filing and service of evidence. The tribunal discussed evidentiary issues with the parties to ensure the complainant had a fair opportunity to obtain evidence that may support her claim. Commendably, Ms Cuthel, who appeared for the University, agreed to enquire about the present whereabouts of “Professor Scravelli”[25] and a person whom the complainant was able to identify only as “Cheri”, both of whom the complainant said could give evidence favourable to her case. The complainant described “Jenni Scravelli” as “the head of physiotherapy at the time when I started”.[26] This was captured in a notation to the orders.
[25] Professor Jennifer M Scarvell – see footnote 20
[26] Audio recording of the hearing on 30 April 2020 at 11:39:53pm
41.On 13 May 2020, the tribunal, constituted by Senior Member Orlov, held a directions hearing with the parties by telephone to confirm their readiness for the hearing, which was listed for two days commencing on 25 May 2020. At the start of the directions hearing, an ACAT registry staff member telephoned the parties from the telephone located in the hearing room. The audio recording records the staff member saying: “Ms Andreopoulos?” to which a female voice responds, “Yes” after which there is the following exchange:
Senior Member Orlov: Ms Andreopoulos, can you hear me?
Response (female voice): Yes, thank you very much Senior Member, I can.
42.In reply to the tribunal’s enquiry whether the complainant would be legally represented at the hearing, the person replied, “I will appear by myself”.[27]
[27] Audio recording of hearing on 14 May 2020 at 9:03am
43.The person participating as the complainant reiterated that she was unable to obtain access to a computer and that she would have to appear by telephone. Ms Cuthel, appearing for the University, submitted that the University was concerned that the person holding herself out to be the complainant was not Ms Andreopoulos, but her mother. The tribunal responded that a serious allegation of that kind must not be made without prior notice and without a proper basis. The tribunal informed the complainant that she was not required to do anything in response to the University’s submission.
44.On 21 May 2020, the University filed an ex-parte application for an order that the complainant be required to appear by visual medium and for a suppression order in respect to the University’s submissions in support of the application.[28] The evidence in support of the application included examples of the writing style of the complainant and the complainant’s mother, particularly the tendency of the latter to capitalise words for emphasis in emails, letters written by medical practitioners referring to the mother’s mental health issues, including a letter written by the complainant in support of a scholarship application to the University that referred to such issues and a video recording of the complainant’s Viva exam in MI1 on 10 October 2017.[29]
[28] Exhibit R15
[29] Exhibit R12
45.On 22 May 2020, the tribunal, constituted by Senior Member Orlov, ordered the complainant to appear at the hearing by video link for the purpose of being identified visually and by voice and, in the event of non-compliance, that the tribunal would hear submissions as to how the matter should proceed, including whether the complaint should be dismissed as an abuse of process. The tribunal refused to grant the University’s application for a suppression order and directed that the application and submissions be served on the complainant by 5:00pm that day.
46.On 23 May 2020, the complainant informed the tribunal that her mother,[30] Effie Terzakis, held a power of attorney authorising her to represent the complainant in proceedings before the ACAT. The power of attorney is dated 6 June 2017[31] and, although given in connection with a rental dispute, is expressed to be ongoing. The complainant first remembered giving a power of attorney to her mother on 23 May 2020, when she was checking the ACAT rules after being served with a copy of the University’s application and the tribunal’s orders.[32]
[30] Exhibit 2
[31] Exhibit 1
[32] Exhibit 2
47.Ms Cuthel, on behalf of the University, emailed three documents to the tribunal and the complainant on 24 May 2020 at 12:56pm,[33] the relevance of which she explained as follows:
Please find attached three attachments which relate to the Applicant’s application and award of the UC Foundation Scholarship for Students with a Disability, awarded in 2015. We are bringing this to the Tribunal and Applicant’s attention as we may seek to cross examine the Applicant in relation to these documents. These documents are relevant to the Applicant’s allegations in respect of her enrolment as raised in her human rights complainant [sic] which was provided to the Tribunal upon referral to the Human Rights Complaint [sic].
In addition, noting the applicant has foreshadowed an application to be represented by her mother Effie Terzakis, the Tribunal may wish to consider this material in the event of that application.
Further we request that the Applicant has the materials including the statements of the Respondent’s witnesses and their attachments on hand for the duration of her evidence, as we will be referring to some of these attachments in cross examination…
[33] Part of exhibit 3
48.One of the attachments was a letter from the complainant to the University in support of her scholarship application, in which the complainant wrote:[34]
I have been raised by my single mother who suffers from a psychiatric condition. As such, I have been economically disadvantaged from an early age because my siblings and I were always in need of financial assistance.
[34] Part of exhibit R16
49.The complainant replied by email at 1:12pm on the same day,[35] foreshadowing an application to appoint a litigation guardian. On the issue of cross examination, the complainant stated:
However, what ever decision the Tribunal decided there will be no direct cross examining only through either my representative or my litigation guardian.
As you have legal knowledge the reason why a court appoints a litigation guardian is because that person has no legal capacity or mental capacity as such the person appointed then is cross examined not the person with the disability. [errors in the original]
[35] Part of exhibit 3
50.In a further email to Ms Cuthel at 2:06pm on 24 May 2020,[36] the complainant reiterated that “the hearing may be adjourned depending on what the University agrees to because I am also requesting an order that all cross examination goes through either my representative or my litigation guardian…”
[36] Part of exhibit 3
51.An email sent to Ms Cuthel at 2:37pm on the same afternoon, purporting to be from the complainant, but which the Tribunal considers was written by her mother,[37] asserted:
Furthermore, please be advised that the information that you have provided about my mother’s past illness is not the fact and was not the fact I had written this due to believing so, therefore in the MORNING I am OBTAINING A MEDICAL PROFESSIONAL WHO KNOWS MY MOTHER WELL AND WILL CLARIFY THE MATTER IN HAND. THIS MEDICAL DOCUMENT WILL VERIFY THAT AT NO STAGE DID MY MOTHER HAVE A MENTAL ILLNESS AS I HAVE WRITTEN. THIS WAS MY MISTAKE AND I BASED THIS ON THOUGHTS BUT NO FACTS.
Further to this I INVITE THE UNIVERSITY OF CANBERRA TO SUBPOENA INFORMATION REGARDING ANY PSYCHIATRIC TREATMENT. AS THE CASE WILL NEED TO BE ADJOURNED FOR THIS INFORMNATION TO BE DELIVERED TO THE TRIBUNAL. [Emphasis in original]
[37] Part of exhibit 3; the evidence satisfies the Tribunal that a distinguishing feature of the mother’s writing style was the use of capitalised text for emphasis.
52.In a series of emails to the tribunal on the morning of the hearing, 25 May 2020,[38] the complainant filed two applications for interim or other orders. The first sought an order pursuant to section 47(3) of the ACAT Act appointing a litigation guardian or alternatively, staying the proceedings until a litigation guardian could be appointed. In support of the application the complainant filed a ‘Consent and Undertaking by Person to Act as Litigation Guardian’ signed and dated by her mother on 24 May 2020. The second application sought orders restricting the ambit of cross-examination by the University and an order that “all questions are made through and only to my representative / or my litigation guardian”.
[38] Exhibits 4, 5, 6 and 7
53.The complainant’s submissions in support of the application for appointment of a litigation guardian were contained in an email sent to the tribunal at 5:08am on 25 May 2020.[39] The submissions stated in part:
Finally, my mother has made an application to be my litigation guardian, as such, upon Gretta finding out send by email on Saturday my application for the disability scholarship [sic]. Please note, that the university had requested each applicant to write a short reason why this scholarship is important, as such i wrote = I have been raised by a single mother who suffers from a psychiatric condition and that I have been economically disadvantaged from an early age and in need of financial assistance. As you can see these words were a cry for help and emotional plea as the scholarship money was 2500 dollars. As such, I am more than happy to take an oath that my mother has never been diagnosed with disorders.
[39] Exhibit 4
54.The information supporting the complainant’s scholarship application included letters from the complainant’s treating doctor and her mother’s treating doctor, confirming the truth of the complainant’s statement about her mother’s medical condition. The evidence to the Tribunal does not provide any basis to think that the letters from the medical practitioners are not authentic, or that the information they contain is false.
The hearing
55.On 25 May 2020, the hearing commenced again by WebEx. The complainant appeared with her mother. The following exchange happened at the start:
SENIOR MEMBER ORLOV: Now, I see that the applicant is there. Is that Despina Andreopoulos? Would you identify yourself, please?
MS ANDREOPOULOS: Yes. My name is Despina Andreopoulos and I'm the applicant.
SENIOR MEMBER ORLOV: Right, and the person sitting on your left?
MS ANDREOPOULOS: My mother, Efthemia.
SENIOR MEMBER ORLOV: All right. Now, would you identify yourself, please. That’s Mr [sic] Terzakis, is it?
MS ANDREOPOULOS: Yes.
MS TERZAKIS: Effy. Effy Terzakis.
SENIOR MEMBER ORLOV: Effy. All right.
MS TERZAKIS: Just Effy is fine.
SENIOR MEMBER ORLOV: All right. Now, Ms Cuthel, I can see you.
MS CUTHEL: Yes, senior member, it's Ms Cuthel. I've also got Deputy General Counsel of the university, Ms Lauren Pinkerton.
SENIOR MEMBER ORLOV: Just a moment.
MS CUTHEL: No, You're fine.
SENIOR MEMBER ORLOV: Now, Ms Terzakis, I take it from your voice that you're the person that I've been speaking to in the several directions hearings that we've had in this matter?
MS TERZAKIS: No. No, no, sorry, no.
SENIOR MEMBER ORLOV: So, Despina, are you saying that you're the person that I've been speaking to?
MS ANDREOPOULOS: Yes, and I've allowed my mum to speak on behalf of me as well.[40]
[40] Transcript of proceedings 25 May 2020 page 2, lines 4-44
56.The Tribunal has listened carefully to the audio recordings of the interlocutory hearings before Senior Member Orlov on 30 April 2020 and 13 May 2020 and watched the video of the complainant’s Viva exam on 10 October 2017 in which her voice, tone and manner of speaking is readily apparent. We have compared what we heard and observed there with the voice, tone and manner of speaking of Ms Andreopoulos and her mother at the hearing. We are satisfied that the person who identified themselves as the complainant and spoke at the interlocutory hearings on 30 April 2020 and 13 May 2020 was Ms Terzakis and not Ms Andreopoulos. Ms Andreopoulos did not speak on either occasion. Her presence, if she was present, was not disclosed to the Tribunal.
57.Shortly after the start of the hearing, the following exchanges occurred. We have set out the relevant parts of the transcript at some length because they exemplify how Ms Terzakis’ conducted herself at the hearing, which ultimately led to the complainant withdrawing:[41]
[41] Transcript of proceedings 25 May 2020 page 3, line 18 to page 5, line 32
SENIOR MEMBER ORLOV: Now, Ms Andreopoulos are you going to be conducting this hearing or is your mother?
MS ANDREOPOULOS: No, I've asked if my mum can do on behalf of me, if it’s okay.
SENIOR MEMBER ORLOV: And why is that?
MS ANDREOPOULOS: Just I don’t feel confident, I don't feel - yes. I get - - -
MS TERZAKIS: Sorry, Member Orlov, but - - -
SENIOR MEMBER ORLOV: Okay.
MS TERZAKIS: - - - I do have - - -
SENIOR MEMBER ORLOV: No, please stop, please stop. So I'm asking some questions of your daughter and I'd like to hear from her. In due course I'll ask some questions of you, all right, but please don’t interrupt your daughter and please don’t interrupt me. Thank you. Please go on, Despina.
MS ANDREOPOULOS: Yes.
SENIOR MEMBER KATAVIC: Ms Terzakis, I also - can you please not speak to your daughter while she's giving her answers?
MS TERZAKIS: Firstly, I need to say that under the law here - I've actually got the write-up of the authority - unless someone in the tribunal has to put - has to put an order in that I cannot, then we're going to have to subpoena and we're also going to have to get a litigation guardian.
So at this moment, at this present time, I put the - I've got the authority. Sorry, so that's how it is. We're just going by the law here. So, Member Orlov, yes, I understand, but I'm not going to be intimidated by the others, and we've got the right here just like every other person in every other tribunal since there's a power of attorney in place. It is valid and therefore I'm allowed to be on daughter's behalf.
SENIOR MEMBER ORLOV: Yes. Ms Terzakis, let me make some things perfectly clear to you and to your daughter. Firstly, I'm satisfied that the power of attorney is regular and therefore you are, at least for the moment, authorised to appear on behalf of your daughter.
Secondly, notwithstanding that your daughter has an authorised representative, the tribunal is entitled to require her to appear before the tribunal and if necessary to answer questions. Thirdly, if the tribunal is satisfied that it's appropriate to do so, I can make an order which requires you to cease acting as your daughter's authorised representative and - - -
MS TERZAKIS: Sir, but - - -
SENIOR MEMBER ORLOV: No, please do not interrupt me, please do not interrupt me, and if you continue to interrupt me, I will make such an order. I want to be clear about that. Now, the next point is that your authority under the power of attorney operates only if and to the extent that your daughter is not under a legal disability, so that - - -
MS TERZAKIS: Yes, but she is – Member Orlov, I'm sorry, she is. We didn't get enough time to file all the relevant applications here. My daughter needs a litigation guardian. She is under a legal disability. I mean, she hasn't got a legal disability person. So that's just - I'm not going to - I've had enough with all the University of Canberra, what they've done to my daughter. We've been traumatised and therefore we've got the right to bring all the documents to a tribunal.
If you want to adjourn it, we're more than happy because my daughter needs a litigation guardian and he will ask the court - and we've got the psychiatrist reports and everyone else to prove it. In fact VCAT easily appoints us immediately.
SENIOR MEMBER ORLOV: Ms Terzakis, I'm going to ask you, and for your daughter, to listen very carefully and not interrupt, and I'm telling you this in your daughter's interest. Okay?
Now, firstly, I told you that I accept, or the tribunal accepts, that you are, at least for the moment, an authorised representative because of the - you hold the power of attorney. However, rule 41(4) of the ACAT rules allows you to act as the authorised representative of your daughter only if she is a person who does not have a legal disability. So, if you assert - - -
MS TERZAKIS: She can say the matter but she does - - -
SENIOR MEMBER ORLOV: Do not interrupt me. Do not interrupt me, and please listen carefully. If your daughter does, or you assert that she does have a legal disability, firstly, you have no authority to act on her behalf and - - -
MS TERZAKIS: No, that's right, and that - - -
SENIOR MEMBER ORLOV: Please do not interrupt me.
MS TERZAKIS: Yes.
SENIOR MEMBER ORLOV: Your daughter cannot appear through you as her power of attorney. Secondly, we would have to determine now on the available evidence whether your daughter is in fact a person who suffers from a legal disability, and thirdly, if the tribunal finds that she is a person who suffers from a legal disability, it would be necessary for the tribunal to order somebody to be appointed as her legal guardian or litigation guardian. And I can indicate to you now that the tribunal would not appoint you - - -
MS TERZAKIS: No, that's - - -
SENIOR MEMBER ORLOV: - - - the litigation guardian.
MS TERZAKIS: I don't have a problem at all with that, at all.
58.Rule 41(4) of the ACT Civil and Administrative Tribunal Procedure Rules 2020 (ACAT Rules) permits only a person who does not have a legal disability to be represented by a person who holds a power of attorney. A person with a legal disability (i.e. a person who is not legally competent) must have a litigation guardian appointed under rule 47 of the ACAT Rules.
59.The Tribunal ascertained that Ms Andreopoulos wished to proceed with the application for the Tribunal to appoint a litigation guardian. The Tribunal stated that it required to hear from her without interruption from her mother and that if her mother continued to interrupt, the Tribunal would terminate her authority to act as her daughter’s representative. Ms Terzakis continued to whisper in her daughter’s ear, prompting a further warning from the Tribunal.[42]
[42] Transcript of proceedings 25 May 2020 page 9, lines 3-16
60.The Tribunal advised Ms Andreopoulos that she would be asked to give some evidence in relation to the issue of competency. Ms Andreopoulos gave an affirmation and was asked the following question:[43]
SENIOR MEMBER ORLOV: Now, you understand that the application that your mother wishes to make is to declare you as being legally incompetent. I understand that you are or have been receiving some psychiatric consultations or treatment. Can you tell us about that, please?
[43] Transcript of proceedings 25 May 2020 page 9, lines 36-39
61.Ms Terzakis interrupted immediately and continued to interrupt, preventing her daughter from answering the question, prompting a final warning from the Tribunal, leading to the following exchange:[44]
[44] Transcript of proceedings 25 May 2020 page 10, lines 17-47
SENIOR MEMBER ORLOV: Ms Terzakis, I'm going to give you a last chance. Pursuant to rule 45(1), I may by order stop an authorised representative from taking any part in the proceeding. If you interrupt one
more time I'm going to make that order. Is that clear?
MS TERZAKIS: Senior Member, if you'd like to make that order, it's your wish. Like I said, what - what's happening today, I will be taking it with her doctors and I'm going to be appealing it.
SENIOR MEMBER ORLOV: Right, but do you understand that if you interrupt one more time, I'm going to make that order, then the matter will continue and you will be asked to leave the room. Is that clear?
MS TERZAKIS: And my daughter is coming with me as well, she'll be coming with me.
SENIOR MEMBER ORLOV: That's your choice.
MS TERZAKIS: Okay.
SENIOR MEMBER ORLOV: Ms Andreopoulos.
MS ANDREOPOULOS: Yes.
SENIOR MEMBER ORLOV: It's in your interests that your mother not interrupt you. We are proceeding to hear your matter, so you need to speak to your mother, and please do so in Greek to maintain privacy but - - -
MS TERZAKIS: Can we have five minutes, please? No, sorry, I - I need five minutes with my daughter. Okay?
62.The Tribunal granted short adjournment. Ultimately, the hearing did not resume until about 1:05pm. Ms Andreopoulos resumed giving evidence. Ms Terzakis could be seen whispering to her daughter as she attempted to answer the Tribunal’s questions. When asked to stop, Ms Terzakis again commenced to argue with the Tribunal.
63.The following exchange occurred:[45]
SENIOR MEMBER ORLOV: I'm about to make a ruling, so if you would listen carefully.
On 6 June 2017, the applicant, Despina Andreopoulos, appointed her mother - - -
MS TERZAKIS: If you're going to make a ruling now, I'm going to leave the tribunal. My daughter is coming with me, sir. I'm letting you know that she's coming with me.
SENIOR MEMBER ORLOV: - - - Efthemia Terzakis, as her attorney for the purposes of acting on behalf of her daughter in relation to proceedings before the ACT Civil and Administrative Tribunal and her being named as a party. The power of attorney is expressed to be ongoing and accordingly, for the purpose of the present application, which is before the tribunal pursuant to a referral from the ACT Human Rights Commission, Ms Terzakis is the authorised representative of the applicant. Through the course of this morning's hearing, Ms Terzakis has repeatedly interjected and in various ways disrupted the hearing.
I am satisfied that the continued involvement of Ms Terzakis as the authorised representative of the applicant is not conducive to the fair and just determination of the issues in these proceedings. I am satisfied that the continuation of the involvement of Ms Terzakis as the authorised representative of the applicant would be inconsistent with the objects of the Act, that is, the ACT Civil and Administrative Tribunal Act, and some of the objects of the rules. Accordingly, I make an order, pursuant to rule 45(1), that that authority of Efthemia Terzakis to act as the authorised representative of Ms Andreopoulos is withdrawn.
Now, Ms Andreopoulos, it's a matter for you how you wish to proceed. We are hearing the matter and I strongly suggest to you that it's in your interest to participate and that your mother is to take no further part in the proceeding. Is that clear?
[45] Transcript of proceedings 25 May 2020 page 14, lines 32 to page 15, line 17
64.Ms Terzakis continued to interject and disrupt the hearing, resulting in a direction that she must remove herself from the hearing immediately.[46] This led to the following exchange:[47]
[46] Transcript of proceedings 25 May 2020 page 20, line 45
[47] Transcript of proceedings 25 May 2020 page 21, line 23 to page 26, line 20
SENIOR MEMBER KATAVIC: It seems we're getting nowhere. Senior Member Orlov has been trying to explain to you how this is going to proceed. Now, there are two things that can happen. The first is, based on the material that you have filed over the weekend, the tribunal can consider the request that's been made for the appointment of a litigation guardian. It can do that now on the material that we have.
In addition to that, you should be aware that the tribunal can proceed to hear this matter today in your absence if you choose to remove yourself from the hearing. That means that it can continue to deal with it in your absence and then the tribunal will make a decision finally about the merits of your case and make any orders that it considers appropriate after considering the evidence that it's got.
Now, you have a choice to make. We can make a decision now about the application for the appointment of a litigation guardian and tell you what those findings are orally, and then if you choose to participate or not after that, that's a matter for you, but you should know that the tribunal has considered that it will participate with or without you.
MS ANDREOPOULOS: Okay.
SENIOR MEMBER KATAVIC: Now, you need to tell us what you want to
do. Now, we can decide that first, deal with it. That means we don’t want any further interruptions from your mother.
MS ANDREOPOULOS: Yes.
SENIOR MEMBER KATAVIC: And then we can deal with one thing and the next, but you should know, as I said, this will go on. If you choose to not participate any further, we will continue. Okay?
MS ANDREOPOULOS: Yes, okay. Thank you. Do I answer now or - - -
SENIOR MEMBER KATAVIC: If you are able to. I've given you a choice about what you want to do.
MS ANDREOPOULOS: I choose to have a litigation guardian.
SENIOR MEMBER KATAVIC: You'd like us to consider that application, would you?
MS ANDREOPOULOS: Yes. I'd like to remove mum.
SENIOR MEMBER KATAVIC: All right.
65.Following a further brief adjournment, the Tribunal resumed and refused the application to appoint a litigation guardian and gave oral reasons.[48] The Tribunal also stated:[49]
SENIOR MEMBER KATAVIC: Having regard to those findings, the tribunal is not satisfied that the applicant has established that she has a legal disability, therefore the application to appoint a litigation guardian is dismissed. In relation to the question of participating with a power of attorney, an order has already been made by the tribunal that Ms Terzakis is prevented from taking any further participation in this hearing. If she no longer wishes to continue, the tribunal can continue this hearing without the participation of the applicant and it can continue to hear the application and make a decision in her absence.
[48] Transcript of proceedings 25 May 2020 page 23, line 28 to page 26, line 46
[49] Transcript of proceedings 25 May 2020 page 26, line 30-35
66.The Tribunal explained to the complainant and her mother that, pursuant to section 44 of the ACAT Act, the Tribunal had power to proceed with the substantive hearing in the complainant’s absence. The mother did not remove herself from the hearing. She moved out of view of the video but remained audible and eventually terminated the connection.
67.Senior Member Orlov telephoned Ms Andreopoulos’ mobile number and spoke briefly to her mother. The transcript records Senior Member Orlov saying to the other persons in the hearing:[50]
SENIOR MEMBER ORLOV: Well, I don't know if that came through on the transcript, but that was the applicant's mother indicating that they're going off to have a litigation guardian appointed.
[50] Transcript of proceedings 25 May 2020 page 27, line 27-29
68.The Tribunal proceeded with the hearing. The respondent sought leave, which was granted, to make an oral application pursuant to section 32 of the ACAT for orders dismissing the application on the grounds that it was an abuse of process, or alternatively, lacked substance.
The evidence
69.The Tribunal received into evidence all of the documentation the complainant provided to the tribunal to ensure that everything upon which she conceivably may have wished to rely was available to the Tribunal.[51] Much of the material comprises assertions and submissions rather than evidence in the strict sense. The complainant did not provide a witness statement setting out her evidence-in-chief, although the tribunal’s earlier directions required her to file and serve of all of the evidence on which she intended to rely. Nor did she provide a witness statement setting out her evidence-in-reply to the witness statements of the University’s witnesses. However, as the rules of evidence do not apply, the Tribunal stated that it would decide matters of relevance and weight for itself, rather than waste time on objections.[52] The University was content for the Tribunal to proceed on that basis.
[51] Exhibits A1, A1.1-A1.28, A2-A4, A4.1-A4.3, A5-A13, A13.1, A14, A15, A15.1-A15.17, A16, A17, A17.1-A17.6, A18-A20
[52] Transcript of proceedings 25 May 2020 page 51, lines 37 to page 52, line 3
70.The University tendered evidence in support of the application for summary dismissal and in answer to the complaint as a whole, including a substantial body of evidence going to the issue whether the University’s requirement that the complainant complete the Viva exams without additional time for the practical component was reasonable in the circumstances.[53] The evidence included the video of the complainant’s Viva exams on 10 October 2017 [exhibit R12] and 7 February 2018 [exhibit R13] and signed witness statements from the following persons:
(a)Scott Pearsall, Dean of Students and Director of Student Life, dated 1 May 2020 [exhibit R4].
(b)Tom Arthur, Senior Inclusion Advisor, Inclusion & Engagement at University of Canberra, dated 4 May 2020 [exhibit R5].
(c)Dr Bernie Bissett, Discipline Lead in Physiotherapy at University of Canberra, dated 3 May 2020 [exhibit R7].
(d)Dr Angie Fearon, Clinical Assistant Professor, Physiotherapy, dated 9 May 2020 [exhibit R8].
(e)Ms Hayley Torabi, Senior Equity and Diversity Consultant, The Australian National University, dated 7 May 2020 [exhibit R9].
(f)Professor Jennie Scarvell, Associate Dean Research and Innovation, dated 6 May 2020 [exhibit R10].
(g)Dr Irmina Nahon, Professional Practice Coordinator and Senior Lecturer Physiotherapy at University of Canberra, dated 21 May 2020 [exhibit R11].
[53] Exhibit R1–R17
71.The Tribunal directed that a series of relevant emails from the complainant to the tribunal dated 23, 24 and 25 May 2020, which the University of Canberra did not wish to tender, should form part of the evidence but not be treated as part of the complainant’s case.[54]
[54] Exhibits 2-5. Exhibit 1 was the power of attorney given by the complainant to her mother, which the Tribunal received into evidence at the start of the hearing
Despina’s academic need will be weighed up alongside the academic need of all of our students when allocating placement.
[172] Exhibit R11, attachment F (email from the complainant to the Tribunal sent on 8 May 2020 at 8:40:22 am
[173] Exhibit R11 attachment B
237.The complainant said about this:
What she meant was that in busy hospitals the high achievers are given placements and in the not so busy hospitals like Wollongong was back in 2017 the weaker students are given the placements.
This is what she told me in 2017.
This is because if a student is weaker she or he may have problems or even fail the placement dealing with many patients coming and going. As that student is not as confident as the higher achievers who are more experienced dealing with patients.
The selection according to academic need as Ms Nahon says is based on the marks a student receives in this viva exam the one that I have been complaining about when the university removed the additional time.[174] [emphasis in original]
[174] Exhibit R11 attachment F (email to the Tribunal on 8 May 2020 at 8:40 am)
238.The complainant intended to subpoena Dr Nahon to give evidence about the email, which she said:
…shows that the University of Canberra treated me unfavourably because they have written in their reply [Exhibit R1] the reason why they removed the additional time was due to being a risk to patient’s safety.
Even though the head of physiotherapy and the unit convenor in each member of the Faculty of Health were aware this is not true, and that every student is allocated according to academic need and every student is fully supervised on every placement.
So, how would it be possible that I was risking the safety of patients?[175] [emphasis in original]
[175] Exhibit R11 attachment B
239.However, the University filed and served a statement from Dr Nahon which addresses the issues that the complainant raised. Dr Nahon states that, while it is true that efforts are made to match a student with the most appropriate placement, it is untrue that a student who may be considered unsafe would be allowed to undertake any clinical placement. Weaker students are not deliberately placed in less busy hospitals. Emergency situations may arise anywhere, and all students must be able to manage this. All students need to pass the same level of competency. Students are not allocated to placements based on their personal capabilities or academic marks. The availability of placements, where the placements are located, and operational requirements are all important considerations. The Tribunal accepts Dr Nahon’s evidence.
Consideration
Direct discrimination
244.For a rebuttable presumption to arise that direct discrimination has occurred, the Tribunal must be satisfied that:
(a)the complainant has been treated unfavourably by the University refusing to provide an adjustment of a maximum 15 minutes additional time for Viva exams in accordance with the RAP issued to her at the start of semester 2 in 2017; and
(b)in the absence of any other explanation, the evidence presented by the complainant establishes that the unfavourable treatment was because of her disability.
245.If such a presumption arises, the onus shifts to the University to establish that the unfavourable treatment was not because of the complainant’s disability.[176]
[176] See paragraph 18
246.The complainant was issued a RAP at the start of semester 2 that provided an adjustment of a maximum of 15 minutes additional time for Viva exams. Regardless of the fact that the RAP was issued without prior consultation with the faculty, as should have happened, it was valid and the complainant was entitled to expect that she would be provided the adjustment for Viva exams in that semester. The consequences of substituting 5 minutes extra reading time in place of up to 15 minutes additional time, a proportion of which would reasonably be expected to be added to the practical component where the complainant’s disadvantage caused by her disability was most acute, must inevitably have been to cause her increased anxiety and stress and make an already difficult and stressful examination format, more difficult and stressful for her.
247.The Tribunal is satisfied that this meets the test for ‘unfavourable treatment’ discussed in Kidman v Casino Canberra Pty Ltd.[177]
[177] [2020] ACAT 50 at [22]; see paragraph 20 above
248.The complainant did not present evidence that satisfies the Tribunal that, in the absence of any other explanation, the unfavourable treatment was because of her disability. The circumstances to which she points do not provide evidence of unfavourable treatment because of her disability.[178] The University’s evidence satisfies the Tribunal that the faculty’s reasons for refusing to allow additional time had nothing to do with the complainant’s disability.[179] The primary considerations were that allowing additional time in the practical component of a Viva exam was not clinically appropriate and would undermine the academic integrity of the course, affect patient safety, fail to prepare the complainant properly for clinical placement and potentially give the complainant an unfair advantage over other students.
[178] See e.g. paragraphs 29(e), 212, 213 and 235-238
[179] See paragraph 213
Indirect discrimination
249.For a rebuttable presumption to arise that indirect discrimination has occurred the Tribunal must be satisfied that, in the absence of any other explanation, the evidence presented by the complainant establishes that the condition or requirement imposed on the complainant to undertake Viva exams without an adjustment that included additional time for the practical component, had, or was likely to have, the effect of disadvantaging her.
250.However, the presumption does not arise if the University establishes that the condition or requirement was reasonable in the circumstances and may be rebutted if the University establishes that the effect of disadvantaging the complainant was not because of her disability.[180]
[180] See paragraph [19]
251.The Tribunal is satisfied that the requirement to undertake Viva exams without additional time for the practical component had, and was likely to have, the effect of disadvantaging the complainant in the sense explained in Prezzi, Patricia Anne and Discrimination Commissioner[181] for the same reasons as the Tribunal finds that the complainant was treated unfavourably.
[181] [1996] ACTAAT 132 at [22], [24]; see also, paragraph [22]
252.It is necessary to determine, therefore, whether the requirement was reasonable in the circumstances. Pursuant to section 8(5) of the Discrimination Act, in deciding whether the condition or requirement was reasonable in the circumstances, it is necessary for the Tribunal to consider, among other things, the nature and extent of the resulting disadvantage to the complainant, the feasibility of overcoming or mitigating the disadvantage and whether the disadvantage is disproportionate to the result sought by the University. The University bears the onus on these issues.
253.The Disability Standards for Education 2005 states that an adjustment (including a change to an existing adjustment) is reasonable for a student with a disability if it balances the interests of all affected parties. Relevant considerations include: the student’s disability; the student’s views about the adjustment, including the suitability of any alternative reasonable adjustment that may be no less beneficial; the effect of the adjustment on the student’s ability to achieve learning outcomes, participate in courses or programmes and independence; the effect on others, including the University, staff and other students; and the cost and benefits of making the adjustment. An overarching consideration is the maintenance of the academic requirements of the course and other requirements that are inherent in or essential to its nature.[182]
[182] See paragraphs [102] – [105]
254.The adjustment provided by the amended RAP issued in semester 2 of 2016 met these criteria.
255.The RAP issued at the start of semester 2 of 2017, while valid, did not meet the criteria because it was issued without consultation with the faculty, which was essential to ensure that the adjustment continued to balance the interests of all affected parties and that it complied with unit objectives and course requirements for MI1 and CI1.
256.Professor Scarvell’s witness statement reiterated that, for Viva exams undertaken in pre-clinical units in second and third year, she had advised I&E that a maximum of 15 minutes additional time would be clinically appropriate and would maintain the integrity of the course while allowing reasonable adjustment, but did not explain the basis for that opinion. Clearly, the opinion was not shared by other academic staff at the time, or subsequently. Because the complainant chose not to participate in the hearing, the opportunity for Professor Scarvell and Dr Bissett to be questioned about the reasons for their differences of opinion was lost. The evidence provides no basis to prefer the opinion of one over the opinion of the other. That there may be disagreement, even strong disagreement, about such issues is unsurprising. The Tribunal accepts the evidence of Dr Fearon, Dr Bissett, Professor Witchalls and Dr Nahon, that there were appropriate and reasonable grounds for their strongly held opinions that allowing any additional time in the practical component of a Viva exam was not clinically appropriate and would undermine the academic integrity of the course, affect patient safety, fail to prepare the complainant properly for clinical placement and potentially give the complainant an unfair advantage over other students.
257.The Tribunal accepts that allowing additional time for the practical component of the MI1 and CI1 Viva exams in those circumstances would not provide reasonable adjustment.
258.The Tribunal finds that the condition or requirement imposed on the complainant to undertake Viva exams without an adjustment that included additional time for the practical component was reasonable in the circumstances.
259.The University took steps to overcome the complainant’s disadvantage in a different way on two separate occasions.
260.Initially, the faculty was prepared to allow an additional 5 minutes for reading before the start of the Viva exam to help the complainant gather her thoughts. The complainant was consulted by I&E and expressed understanding of the reasons for the faculty’s position and a willingness to attempt the upcoming Viva exams in CI1 and MI1 without additional reading time, unless she found she needed it after the mock Vivas. I&E considered the adjustment was reasonable and, after taking into account the complainant’s views, issued an amended RAP that included a recommendation for an additional 5 minutes reading time.
261.After she failed the first Viva exam in MI1, I&E and faculty staff revisited the question of a reasonable adjustment. Although the complainant’s RAP was not amended formally, she was offered an additional one-on-one Viva session to provide her with an opportunity to practice and received some additional guidance before her final exams. The Tribunal considers this was an appropriate means of mitigating the complainant’s disadvantage, provided she did what every student is expected to do – namely, practice, study and prepare properly for the Viva exams.
262.Subsequently, the complainant again expressed understanding of the reasons for the faculty’s position and indicated that she would request an additional 5 minutes reading time for the MI1 Viva exam only. She did not take up the offer of the additional practice session.
263.The complainant’s case misconceives her entitlement to reasonable adjustment in several critical respects. First, it assumes that the adjustment provided for 15 minutes additional time, rather than a recommended increase of up to 15 minutes maximum. Second, it assumes that the additional time would be provided during the practical component of Viva exams. Third, it assumes the adjustment was immutable and would continue to be provided to enable her to complete the course requirements, when in fact it was to be reviewed each semester to ensure that it complied with unit and course requirements.
264.Taking into account the considerations involved in the University’s refusal to allow additional time for the practical component of Viva exams discussed earlier, the Tribunal is satisfied that the amended adjustments provided or offered to the complainant were reasonable in the circumstances. The offer of an additional one-on-one practice session is particularly significant in the Tribunal’s view, as is the fact that the complainant failed to take up the offer.
265.Reasonable adjustments are intended to provide a student with a disability the opportunity to participate in a course, program or learning experience, on the same basis as a student without a disability. Reasonable adjustments do not require the University to provide a bespoke learning experience. The maintenance of academic integrity is fundamental. Reasonable adjustments do not guarantee that a student with a disability will necessarily be able to cope with the course or assessment requirements, particularly in a clinically focussed course such as physiotherapy. Nor are reasonable adjustments intended to be a substitute for adequate practice, study and preparation for Viva exams that are designed deliberately to simulate clinical practice and prepare students for clinical placements, where patient safety is a paramount consideration.
Conclusion
240.The complainant has failed to establish that the University directly discriminated against her. Although the Tribunal considers that the University treated her unfavourably, the Tribunal is not satisfied that the unfavourable treatment was because of her disability.
241.The complainant has failed to establish that the University indirectly discriminated against her. Although the Tribunal considers that the condition or requirement the University imposed on the complainant had the effect of disadvantaging her, the Tribunal is satisfied that the condition or requirement was reasonable in the circumstances.
266.The Tribunal is satisfied that even if the University’s conduct did amount to discrimination, the complainant has failed to establish the University’s conduct materially contributed to the losses she claims. The complainant failed MI1 because she did not practice, study, or prepare adequately for the Viva exams. The Tribunal is satisfied that the extra time she claims she should have received would not have altered the result.
Orders made under section 39 of the ACAT Act
267.After the hearing the Tribunal invited the parties to provide brief written submissions addressing whether the orders made on 30 April 2020 should remain in place or not. Both parties provided written submissions.
268.The complainant requested the orders remain in place permanently on the basis that the matter was sensitive and very personal. She did not refer to any document or other information to support her reason. The University submitted the orders should be set aside because the matters in section 35(5)(a)-(c) were not met. The University repeated its submission that the application was improperly brought and most likely brought by someone other than the complainant.
269.The principle of open justice is fundamental to proceedings in courts and tribunals. It is the norm, but not without exception. The Tribunal may restrict access to information or require hearings to be held in private. The circumstances in which the Tribunal may so decide are set out in section 39(5) of the ACAT Act as follows:
(a)to protect the morals, public order or national security in a democratic society, or
(b)because the interests of the private lives of the parties require the privacy, or
(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
270.It is a reality of open justice that the identity of parties and material provided to a court or tribunal will be revealed or be publicly available. This may include information a party regards as private or otherwise be uncomfortable having in the public domain. A cogent reason by reference to the case would be required for the Tribunal to depart from the norm.[183]
[183] Australian Investment and Securities Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75]
271.As Kirby J said in John Fairfax Group Pty Ltd v Local Court of New South Wales:
... It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts or the issue of suppression orders in their various alternative forms.[184]
[184] (1991) 26 NSWLR 131 at 142
272.The Tribunal is not satisfied that the applicant has provided a cogent reason to continue the orders made on 30 April 2020, however the Tribunal considers restricting public access to the file ameliorates any concerns regarding personal information. The complainant has not identified any information or reason that enlivens section 35(5) and merely regarding the matter as sensitive and personal is not enough.
Orders
273.The Tribunal makes the following orders:
(a)The respondent’s application pursuant to section 32 of the ACAT Act is dismissed.
(b)The complaint is dismissed.
(c)The orders made on 30 April 2020 pursuant to section 39 of the ACAT Act are set aside.
(d)There is to be no public access to the Tribunal file.
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal
Date(s) of hearing 25 & 26 May 2020 Applicant: In person Solicitors for the Respondent: Ms C Cuthel, Senior Legal Counsel, University of Canberra
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