Barr v Macquarie University

[2025] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Barr v Macquarie University [2025] NSWCATAD 267

Hearing dates:

27 August 2025

Date of orders:

29 October 2025

Decision date:

29 October 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Ziegler, Senior Member

Decision:

(1) Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the applicant’s complaint of direct disability discrimination against the respondent, in relation to the decision to refuse the applicant’s application for re-enrolment in its PhD program, to proceed.

(2) Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the balance of the applicant’s complaints to proceed.

(3) The applicant’s “Application for Miscellaneous Matters” filed on 13 June 2025 is dismissed.

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — disability discrimination — leave required for complaint to proceed — whether complaint lacking in substance — principles applying to grant of leave.

PRACTICE AND PROCEDURE — whether a non-publication order should be made.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)

Victims Rights and Support Act 2013 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77

Aljami v Macquarie University [2019] NSWSC 1026

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Carroll v Department of Family and Community Services [2015] NSWCATAD 82.

Carroll v Tokdogan [2015] NSWCATAD 200

CBL v Sydney Water Corporation [2017] NSWCATAD 220

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Civil and Administrative Tribunal Act 2013 (NSW)

CME v The University of Technology Sydney [2018] NSWCATAD 113

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Frost v TAFE NSW (No 2) [2019] NSWCATAD 12

GVQ v Children’s Guardian [2025] NSWCATAD 160

Jones v Ekermawi [2009] NSWCA 388

Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221

Langley v Niland [1981] 2 NSWLR 104

Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69

Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board [2014] NSWCA 372

Wickstead v Browne (1992) 30 NSWLR 1

Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128

Xu v Sydney West Area Health Service [2006] NSWADT 3

Texts Cited:

None

Category:

Principal judgment

Parties:

Philippa Barr (Applicant)
Macquarie University (Respondent)

Representation:

Self Represented (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2025/00222180

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. Ms Barr (the applicant) is currently an undergraduate student and former staff member of Macquarie University. The dispute involves decisions by the University to refuse Ms Barr’s application for re-enrolment in its PhD program, to ban her from part of the University’s campus, and to suspend her undergraduate student enrolment. The applicant alleges that the University’s conduct involves disability discrimination and victimisation in breach of the Anti-Discrimination Act 1977 (NSW) (the Act).

2. The issues I must decide are:

1. whether to grant leave for the applicant’s complaints of disability discrimination and victimisation against the University to proceed before the Tribunal; and

2. whether to make an order prohibiting the publication or broadcasting of the applicant’s name and any information that might enable the applicant to be identified in the proceedings.

3. At the hearing the applicant confirmed the scope of her complaints for the purposes of her application for leave to be as follows:

1. a complaint of discrimination on the ground of disability in relation to:

1. the decision of the University made on 21 March 2023 to refuse the applicant’s PHD re-enrolment application;

2. the decision of the University made on 7 March 2023 to ban the applicant from the University’s “Arts Precinct”; and

3. the decision of the University made on 14 June 2023 to suspend the applicant’s undergraduate student enrolment; and

2. a victimisation complaint in relation to the decision to suspend the applicant’s undergraduate student enrolment made on 14 June 2023.

4. For the reasons that follow I have decided to grant leave for part of the applicant’s complaint to proceed in the Tribunal and to refuse leave for the balance of her complaint. I have also decided to refuse the application for a non-publication order.

The application for leave and applicable principles

5. A person may make a complaint to the President of Anti-Discrimination NSW (the President) on their own behalf alleging that a person has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

6. On 12 September 2024 the applicant lodged a complaint with the President against the respondent (the University) and another party alleging discrimination and victimisation.

7. The President accepted for investigation:

1. One complaint of disability discrimination in the statutory area of education, against the University, for events/conduct alleged to have occurred from 4 March 2023 to 26 July 2024;

2. One complaint of victimisation in the statutory area of education, against the University, for events/conduct alleged to have occurred from 4 March 2023 to 26 July 2024.

8. The President declined to accept the balance of the applicant’s complaint (under s 89B(2)(b) of the Act).

9. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

10. On 23 April 2025 the President decided to decline the complaint under s 92(1)(a)(i) of the Act, on the ground that the complaint was lacking in substance.

11. In such circumstances the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.

12. Where, as here, a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

13. The Tribunal does not have power to review the initial decision made by the President to decline part of the complaint under s 89B(2)(b): s 89B(4) of the Act. See also, Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board [2014] NSWCA 372.

14. The Tribunal has power to grant, or to refuse to grant, leave for that part of the complaint accepted for investigation by the President and referred to the Tribunal under s 93A of the Act: s 96(1) of the Act.

15. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (“Ekermawi”). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President took into account in declining a complaint under s 92 of the Act: Jones at [60].

16. Schmidt AJ in Ekermawi at [38] explained what is meant by fairness and justice in the context of the discretion under s 96(1) of the Anti-Discrimination Act:

That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

17. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

18. The applicant’s evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Background

19. The parties have a lengthy and complex association. The President’s report, including attachments, is close to 600 pages in length and the parties submitted several hundred pages of additional materials prior to the leave hearing. It is not necessary for the purposes of this leave decision to delve into all the details of the parties’ history. I have set out below a summary of the relevant background insofar as it is relevant to the application for leave.

20. Between 1999 and 2004 the applicant was enrolled as an anthropology undergraduate in the University’s Faculty of Arts.

21. In June 2016 the applicant enrolled in the University’s PhD program through its Faculty of Arts. She withdrew from the PhD program on 12 July 2021. During that five-year period of enrolment, the applicant had been granted several extensions of time and leaves of absence.

22. The applicant was a staff member within the University’s Faculty of Arts, in various roles and capacities, from July 2021 to 17 February 2023.

23. In December 2022, after having been unwell for several months, the applicant was diagnosed with a health condition. The applicant’s general practitioner wrote several letters to the University advising that the applicant required accommodations, such as extensions for academic deadlines and ergonomic adjustments.

24. From 18 February 2023 to 14 May 2023 the applicant was neither a student nor a permanent, part-time or casual member of staff. However, the applicant had a connection with the University during that period in various capacities: she was an alumna of the University; she delivered a paid lecture at the University, and she was in what she describes as a “pre-enrolment” phase which involved, among other things, having meetings with potential PhD supervisors.

25. On 24 February 2023 the applicant contacted Professor Greg Downey (the Interim Dean of the School of Social Sciences) and Chris Houston (the applicant’s nominated principal supervisor for her PhD thesis) regarding a request for an ergonomic adjustment (a large monitor) due to a health condition.

26. On the same day Professor Downey wrote an email to Chris Houston. It is not necessary to set out the full content of that email. In summary, Professor Downey said that the applicant was neither employed by the University nor a student, that she was causing significant problems for HR due to “the number of people that she is harassing”, that there was discussion about terminating her and not allowing her to re-enrol, that her expulsion from the University was likely, and that he would not be supporting the applicant to gain access to personnel or resources on campus. The email concludes by saying “as far as I can tell, the best case scenario for her is that she goes away and finishes her thesis. Virtually everything she touches turns into a burned bridge”.

27. In an email from Professor Downey to two staff members dated 27 February 2023 (which appears to be in relation to a proposed meeting with the applicant) Professor Downey states “Philippa is unpredictable (as folks with her condition often are). I do not know if she will actually show up.”

28. On 7 March 2023 the University sent a letter to the applicant formally requesting that she not attend the main work areas of the University’s Faculty of Arts without prior written approval from the Executive Dean. At that time the applicant was not a student. The reason given for the request was the applicant’s conduct in dealing with other staff. The letter stated “For several months you have sent multiple emails to staff members setting out a range of allegations and demanding particular outcomes… The nature and number of your emails is harassing and distressing to certain members of the Faculty.” The letter went on to say “we are prepared to revisit this request later in the year or of course if at any stage you are enrolled as a student or employed in the Faculty”.

29. The applicant made a formal application for readmission to the University’s PhD program on 8 March 2023. At that time the University’s policies required an application for readmission to be made within two years of withdrawal. The application for re-enrolment was made within that timeframe.

30. The applicant had previously made enquiries as to whether the two-year time limit could be extended by nine months. On 31 October 2022 Associate Professor Fiona Miller wrote to the Faculty of Arts Associate Dean expressing her support for an extension, citing the applicant’s “serious health issues as well as the stress and disruptions of Covid-lockdowns”. On 31 October 2022 the Associate Dean responded, copying the applicant, stating that she would be happy to support this request. Despite this, the applicant did not apply for an extension and made her application for re-enrolment within the two-year timeframe.

31. The applicant says that in the months leading up to her application for re-enrolment into the PhD program, two faculty members - Chris Lyttelton and Chris Houston - had communicated to her that they were willing to supervise her PhD. Nonetheless, on about 21 March 2023 the University informed the applicant that her application for readmission to the PhD program was refused due to a lack of availability of a suitable supervisor with the necessary expertise to facilitate the research program.

32. On 6 April 2023 the applicant appealed the University’s decision to refuse her readmission to the University’s Academic Appeals Panel. Her appeal was unsuccessful. The reason provided by the Panel was “this decision is not appealable under any Macquarie University police and/or procedure, as the decision was made on the basis of academic judgement”. The appeal decision referred to a policy of the University which states the Executive Dean of the Faculty in which the applicant is to be registered is to be satisfied that adequate supervision and facilities are available. The appeal decision also states “Following receipt of this appeal I contacted Sariah Sorial, Associate Dean Research Training and Performance from the Faculty of Arts who advised that: ‘I can confirm that the Faculty is not able to provide appropriate supervision for Ms Barr’s project. I have spoken to both Professor Ronika Power and Professor Chris Housten, and both have confirmed that they cannot supervise the project to completion. The decision was reached on that basis.’”

33. From 15 May 2023 to the present, the applicant has been an undergraduate student enrolled in a Bachelor of Science. At the time of the hearing she was on a leave of absence.

34. On 30 May 2023 four staff members wrote an email to human resources and executive staff in the University’s Arts Faculty to “express alarm that [the applicant] has been permitted to re-enrol …given her known history and ongoing practices of intimidation, bullying and harassment, of both staff and fellow students both on and off campus.”

35. On 2 June 2023 the University’s Head of Complaints, Appeals and Misconduct wrote to the applicant. The email refers to the University’s Student Code of Conduct and to clause 6(1) which requires that students must not:

- interfere with the ability of the University community or any associate of the University to engage in or enjoy any University activities or to access, occupy, use or move about University property; or

- do anything which may bring the University into disrepute including by making or publishing false or misleading statements relating to the University.

36. The email goes on to say that the University has “serious concerns about the manner in which you previously have and continue to communicate with and about staff members” and instructs the applicant to avoid contact with certain staff members.

37. On 14 June 2023 the University wrote to the applicant informing her that her enrolment as a student was suspended, and that she was banned from the University’s “Arts Precinct”, on the ground that her conduct may constitute misconduct and may also amount to an imminent threat of misconduct. The University informed the applicant that the suspension was to take effect immediately and continue until 24 July 2023.

38. On 7 July 2023 the applicant made three formal complaints to the University, two of which were withdrawn in April 2024. The complaints addressed a range of matters including a failure to provide reasonable adjustments, victimisation and disability discrimination.

39. On 21 July 2023 the University wrote to the applicant noting, among other things, concerns about the number of emails the applicant had sent to staff and students, the content of emails which “repeatedly raise the same unsubstantiated allegations or issues”, and “the manner in which you have chosen to involve persons unrelated to the nature and content of the issues you raise rather than through appropriate management channels or in accordance with available procedures”. The email informed the applicant that the University has decided not to extend the current suspension and ban but that the applicant should not engage in the following conduct: contact certain faculty members; use Faculty of Arts established group emails to raise personal grievances or issues about her perceived treatment at the University; or enter the Faculty of Arts building or the Faculty of Arts precinct on the University’s main campus.

40. On 1 September 2023 the applicant made a further formal complaint to the University alleging, among other things, disability discrimination.

41. On 20 February 2024 the University sent a letter to the applicant informing her that the ban on her access to the Arts Precinct and Faculty of Arts building was being renewed and continued.

42. On 5 April 2024 the University wrote to the applicant informing her that complaints about her had been assessed under the Student Conduct Procedure. The letter informed the applicant that the University had identified significant and ongoing wellbeing harm from the applicant’s conduct and had determined, citing obligations under the Work Health and Safety Act 2011 (NSW), that the applicant was not to contact certain faculty members, use Faculty of Arts established group emails to raise personal grievances or issues about her perceived treatment at the University, or enter the Faculty of Arts building or the Faculty of Arts precinct on the University’s main campus.

36. On 12 September 2024 the applicant’s complaint was lodged with the President.

Leave granted in relation to the complaint of direct disability discrimination in connection with the PhD re-enrolment refusal

44. Section 49B(1) of the Act sets out what is discrimination on the ground of disability.

49B What constitutes discrimination on the ground of disability

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

(a)  on the ground of the aggrieved person’s disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)  requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

45. Section 4 of the Act defines “disability” to mean:

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

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

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

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

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

46. A person’s “disability” means not only a disability that the person actually has, but also a disability that the person is thought to have, or that a person had or is thought to have had in the past, or that a person will have, or is thought will have in the future: s 49A.

47. It is unlawful under s 49L(1) of the Act for an educational authority to discriminate against a person on the ground of disability by refusing or failing to accept his or her application for admission as a student, or in the terms on which it is prepared to admit him or her as a student.

48. It is also unlawful under s 49L(2) of the Act for an educational authority to discriminate against a student on the ground of disability:

(a)  by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b)  by expelling him or her, or

(c)  by subjecting him or her to any other detriment.

49. Unlawful discrimination is usually referred to as direct discrimination or indirect discrimination. To establish a complaint of direct disability discrimination in relation to the PhD enrolment decision, the applicant would need to prove that in the same or similar circumstances, the University would not have refused to enrol a person who did not have her disability.

50. This part of the test is often referred to as the “differential treatment” test. The applicant has submitted that in these proceedings there is an actual comparator for the purposes of assessing differential treatment - being the applicant herself prior to her diagnosis. Whether or not she is correct about this, if there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt) at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [60]-[61]; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].

51. In addition to establishing differential treatment, at least one of the reasons for the alleged treatment must have been the applicant’s disability. This part of the test is often referred to as “causation”: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45].

52. Where, as here, there is no direct evidence of discrimination on the ground of disability, a causal link between a disability of the applicant and the alleged treatment would have to be established by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt at [70].

53. It is common ground that the University is an educational authority for the purposes of s 49L and that the decision to refuse the applicant’s re-enrolment application is a “detriment” for the purposes of s49L(1).

54. The applicant has not clearly specified the nature of her disability for the purposes of these proceedings. However, she refers to a number of medical conditions with which she has been diagnosed, including a gastro-intestinal infection and an immunological condition. Medical evidence before the Tribunal supports a finding that she has been diagnosed with several health conditions and for the purpose of these leave proceedings I am prepared to accept that she has a disability at least within the meaning of that term in paragraph (b) of its definition in s 4.

55. The University’s evidence is that at the time the PhD readmission application was being decided, all students seeking readmission into its PhD programs were required to comply with various policies. It says that as the applicant chose not to apply for the 9-month extension to her candidature application, her readmission application was subject to the following requirements:

1. Part H of the Graduate Research Admissions Policy which stated that where a student has withdrawn from or discontinued their course, the University may authorise a period of enrolment (of not more than three months full time equivalent) suitable for the thesis to be submitted, within two years of withdrawal;

2. Clause 51 of the Graduate Research Variations to Candidature Policy which stated that where a candidate’s enrolment has ceased, they must apply for readmission within two years if they wish to return and, where re-admitted after withdrawal or discontinuance, a period of enrolment sufficient for satisfactory completion of the thesis and submission will be determined by the Graduate Research Academy on recommendation of the Faculty Associate Dean, Research Training and Performance, and will not exceed three months; and

3. Clause 20 of the Higher Degree Research Rules which stated that the Executive Dean of the Faculty in which the Applicant is to be registered is to be satisfied that adequate supervision and facilities are available.

56. The University says that accordingly, readmission was subject to the availability of adequate supervision to enable submission of the applicant’s thesis within the specified time, and that because of clause 51 of the Graduate Research Variations to Candidature Policy, the application for readmission had to be the subject of an independent recommendation by Faculty Associate Dean, Research Training and Performance, in this case Professor Sorial, and also the subject of a determination by the Graduate Research Academy (GRA) upon receiving the recommendation of Professor Sorial.

57. The University also refers to the fact that the refusal decision was the subject of an independent appeal and findings which affirmed the University’s decision. It submits, citing Aljami v Macquarie University [2019] NSWSC 1026, that the decision was a matter of academic judgment which is not amenable to review by the Tribunal.

58. The University further submits that the correspondence from Professor Downey is not representative of the University’s position in relation to the application for readmission. It says Professor Downey’s comments about the applicant are no more than an expression of a personal viewpoint that must be assessed against the “overwhelming evidence that the application for readmission was subject to the University’s formal and independent assessment process”.

59. The difficulty for the University is that there is in fact little evidence before me of the process the University applied in determining the applicant’s enrolment application. Whilst the University has provided evidence of the policies relevant to PhD candidature, there is scant evidence of how those policies were applied in this instance. There are records suggesting that Professor Sorial was consulted, but little evidence as to the process followed by Professor Sorial in making her recommendation. There is also no evidence as to which, if any, other persons were involved in making the refusal decision, of whether, or the extent to which, Professor Downey was involved in the process or influenced the decision, of the steps followed by the University in reaching the refusal decision, or of all the factors the University considered in making the refusal decision. Although the decision was appealed, the University’s appeal panel did not review the decision on its merits, stating that the appeal is “not appealable under any Macquarie University policy and/or procedure”. Therefore, it is difficult to assess, on the limited evidence provided, whether the refusal decision was indeed merely one of academic judgment, or whether there were other factors at play.

60. In this context it is relevant that only several weeks prior to the applicant submitting her application for re-enrolment, she had made requests for accommodations due to her health issues, and that shortly afterwards Professor Downey had, in emails to other staff members, referred in a disparaging manner to the applicant and to her “condition”. Although Professor Downey does not specify the nature of the applicant’s “condition”, it is likely he was referring either to an actual disability of the applicant, or to a perceived disability of the applicant.

61. Also relevant is that in the period leading up to the refusal decision, both Chris Lyttelton and Chris Houston had informed the applicant that they were willing to supervise her thesis.

62. Given Professor Downey’s senior role in the University’s Arts Faculty, his disapproving references to the applicant and to her “condition”, the close temporal connection between that email correspondence and the refusal decision, and the assurances given to the applicant by Chris Lyttelton and Chris Houston about supervision, and in light of the dearth of evidence before the Tribunal with regard to the decision-making process, I find that an inference could possibly be drawn that the refusal decision was not purely one of academic judgment, and that one of the reasons for the refusal decision was the applicant’s disability or a perceived disability of the applicant.

63. For these reasons it is not apparent that the applicant’s complaint of direct discrimination regarding the refusal decision is not without substance and in those circumstances, it is neither fair nor just to refuse leave in relation to that part of the complaint. In forming this view I am cognisant that key factual issues are likely to be affected by evidence in the possession of the University and that material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence: Xu v Sydney West Area Health Service [2006] NSWADT 3 at [16] citing Wickstead v Browne (1992) 30 NSWLR 1.

64. In such circumstances it is appropriate that leave be granted so that the factual issues in dispute can be determined by the Tribunal.

65. The applicant says that the PhD refusal decision also involved indirect discrimination because the University imposed an “unadjusted” thesis production and submission timetable while the applicant was unwell – and that this was a condition with which a substantially higher proportion of students without her disabilities could comply.

66. To establish ‘indirect’ disability discrimination, the applicant would have to prove the matters in s 49B(1)(b) of the Act. In summary, those matters are:

1. that the University required her to comply with a requirement or condition;

2. that a substantially higher proportion of students without her disability can comply with that requirement;

3. that the applicant did not, or was not able to comply with the requirement or condition; and

4. that the requirement or condition was not reasonable in all the circumstances.

67. As I understand it, the applicant is saying that the relevant requirement or condition was the University policy which requires applications for readmission to the PhD program to be made within two years of withdrawal, combined with the policy which states that upon acceptance, the period of enrolment must not exceed three months. The applicant has not explained why this was a requirement with which she could not comply (and I note there is an inherent tension between such a submission and the applicant’s claim of direct discrimination). The applicant also has not explained how she would prove that this is a requirement which a substantially higher proportion of persons without her disability comply or are able to comply.

68. In any event, assuming she could establish these matters, she would also need to prove that the University’s policy is not reasonable having regard to the circumstances of the case. The relevant factors when considering reasonableness were summarised by the Tribunal in Wong v Office of the Board of Studies NSW (No 4) [2012] NSWADT 128 at [269]:

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

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

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

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

(d) any other relevant circumstances.

69. The applicant has not articulated in what way the University’s policy was unreasonable. In any case, as discussed above, prior to applying for readmission to the PhD program, the applicant made inquiries about applying for a nine-month extension due to her health issues, and received assurances that the University would be amenable to such a request. Despite this, she decided not to seek an extension and instead applied for re-enrolment within the standard period. In such circumstances the likelihood that the Tribunal would be satisfied that the thesis production and submission timetable was unreasonable in all the circumstances is remote.

70. For these reasons it would not be fair and just to grant leave for the applicant’s complaint of indirect discrimination in relation to the PhD refusal decision to proceed before the Tribunal.

Leave refused in relation to the complaint of discrimination in connection with the Arts Precinct ban and the suspension of enrolment

71. As discussed above, it is unlawful under s 49L(1) of the Act for an educational authority to discriminate against a person on the ground of disability by refusing or failing to accept his or her application for admission as a student, or in the terms on which it is prepared to admit him or her as a student.

72. It is also unlawful under s 49L(2) of the Act for an educational authority to discriminate against a student on the ground of disability:

(a)  by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b)  by expelling him or her, or

(c)  by subjecting him or her to any other detriment.

73. To establish a complaint of direct disability discrimination in relation to the Arts Precinct ban and the decision to suspend the applicant’s undergraduate enrolment, the applicant would need to prove that in the same or similar circumstances, the University would not have:

1. banned a person who did not have her disability from the Arts Precinct; or

2. suspended a student who did not have her disability.

74. The initial decision to ban the applicant from the University’s Arts Precinct was made in March 2023. At that time the applicant was not a student and therefore s49(2) cannot apply. As the decision does not involve a refusal or failure to accept an application for admission as a student, or the terms on which the University was prepared to admit the applicant as a student, s 49L(1) also cannot apply. Therefore, to the extent that the complaint of disability discrimination involves that decision, it is lacking in substance.

75. However, the University does not dispute that the decisions made after the applicant became a student in May 2023 to ban the applicant from the Arts Precinct and to suspend her enrolment are “detriments” for the purposes of s 49L(2).

76. As with the refusal decision, in the absence of any direct evidence that the applicant’s disability was the real, genuine or true reason for the actions of the University in banning the applicant from the University’s Arts Precinct and suspending her enrolment, a causal link between the applicant’s disability and the University’s conduct would have to be established by inference from the available facts.

77. The applicant refers to a number of factors which she asserts support such an inference being made, including: the emails from Professor Downey; that there was no formal misconduct investigation; that she had sought adjustments; that she was denied procedural fairness; that during the period of the ban she held roles at other universities without incident, and that those advocating the ban attended her workplaces and public events. She also says her academic successes and positive relationship with the Associate Dean of Science from her first semester of studies undermine the respondent’s position that there is any threat or real risk to the safety of staff or students.

78. I note the applicant also says the ban was unreasonable and disproportionate when compared with sanctions imposed on others in comparable circumstances. However, she has not provided evidence supporting this submission.

79. The University submits that it is clear from the correspondence relevant to these decisions that they were based on its assessment of the applicant’s behaviour and its concerns about the effect of her conduct on the health and safety of staff. It says that conduct relates to a very large amount of correspondence from the applicant making repetitive, unreasonable and unsubstantiated allegations and statements to staff and students. The evidence before the Tribunal includes copious contemporaneous correspondence. That correspondence includes a letter from four staff members to the University, dated 30 May 2023, containing serious allegations about the applicant’s behaviour and its effect on staff welfare, as well as numerous letters from the University to the applicant providing details of the applicant’s behaviour and why it has formed the view that the behaviour is, or may be, in breach of the University’s code of conduct and may amount to misconduct or an imminent threat of misconduct.

80. Unlike with the PhD refusal decision, the reasons for the University’s decisions to ban the applicant from part of its campus and to suspend her enrolment - namely concerns about the applicant’s behaviour and its impact on members of staff – are abundantly clear from the contemporaneous evidence. That evidence offers a more probable and innocent explanation than the circumstances put forward by the applicant, which effectively invite the Tribunal to draw an inference of disability discrimination on the basis of supposition and conjecture.

74. The applicant made submissions the effect of which is that the behaviour complained of by the University is a symptom of her health conditions. However, there is no material before the Tribunal that would support a finding that the behaviour in question - making repetitive, unreasonable and unsubstantiated allegations and statements to staff and students - is a symptom of her gastro-intestinal infection, her immunological condition or any of her other health conditions, or is a characteristic that appertains generally to people with the applicant’s disability, or that is generally imputed to such persons: s 49B(2) of the Act. In this regard there is vague medical evidence of the applicant’s health conditions compromising her “communication patterns” but nothing which would support a finding that her disability causes or is thought to cause the kinds of behaviour complained about by the University.

75. Whether the University conducted a “formal” investigation or gave the applicant an adequate right of reply are not determinative issues. The issue is whether the evidence could reasonably support an inference that the decisions to suspend the applicant’s enrolment and to ban her from parts of the University campus were wholly or partly motivated by her disability. In my view the likelihood of this being the case is remote.

76. To the extent that the applicant complains of direct discrimination in relation to the decisions to ban her from the Arts Precinct and to suspend her undergraduate enrolment, this complaint is lacking in substance.

77. The applicant has also made allegations of indirect discrimination but has not clearly identified a requirement or condition that the University imposed on her in connection with the Arts Precinct ban or the suspension of enrolment that a substantially higher proportion of students without her disability can comply with. Therefore, a complaint on this ground also lacks substance.

78. For these reasons it would not be fair and just to grant leave for the complaint of disability discrimination with respect to the Arts Precinct ban or the suspension of the applicant’s undergraduate enrolment to proceed before the Tribunal.

Leave refused in relation to the victimisation complaint

86. Under section 50 of the Act, it is unlawful for the University to subject the applicant to “any detriment in any circumstances” on the ground that the applicant has alleged that the University “has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act”:

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

87. To prove victimisation the applicant would have to prove that:

1. she did one or more of the things listed in s 50 (a) – (d) of the Act, which I will refer to as the “trigger”;

2. the University subjected her to a detriment; and

3. the detriment was on the ground that the applicant did one of the things listed in s50(a) – (d) of the Act, which I will refer to as “causation”: Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

88. The applicant first made a complaint or complaints to the University alleging discrimination and victimisation on 7 July 2023. She made a further complaint to the University on 1 September 2023 and lodged her complaint with the President in September 2024.

89. I accept that these actions would amount to “triggers” for the purposes of s 50(1)(a) of the Act.

90. There is no evidence before me that prior to 7 July 2023 the applicant did any of the things in s 50(1), or that the University knew or suspected that the applicant had done or intended to do any of those things.

91. The applicant has alleged that the detriment she has suffered is the decision to suspend her enrolment as a student and ban her from the University campus made on 14 June 2023. As that decision predated all of the above “triggers”, it cannot be said that the applicant was subjected to that detriment on the ground of any trigger and therefore her complaint on that basis is lacking in substance.

92. However, for completeness, I will also consider whether there would be any substance to a complaint that the subsequent decisions made by the University with regard to the Arts Precinct ban and the student suspension breached s 50 of the Act.

93. The relevant conduct of the University is as follows:

1. The letter of 21 July 2023 informing the applicant that the suspension would not be extended but that she was not to engage in certain conduct, including not contacting certain members of staff and not entering the Faculty of Arts building or precinct.

2. The letter of 20 February 2024 informing the applicant of its determination to continue the ban due to ongoing concerns arising from the applicant’s conduct.

3. The letter of 5 April 2024 informing the applicant of the outcome of its investigations into complaints by staff, advising the applicant that numerous measures had been put in place to ameliorate the consequences of the applicant’s conduct, that the University determined to take no further action and that the applicant was directed not to enter the Arts Faculty precinct or building and not to contact certain persons as set out in the letter.

94. For the purposes of these leave proceedings I accept that the bans and restrictions set out in those letters are “detriments” for the purpose of s 50.

95. The next question is whether the applicant can prove causation by showing that the detriments arose because of, or that they could be attributed to, the triggers discussed above.

96. As there is no direct evidence of causation, a causal link between the complaints and detriment would have to be established by inference from the available facts.

97. There is no logical or reasonable inference available on the evidence before the Tribunal that the University’s conduct towards the applicant was because of, on the grounds or, or related, to the applicant’s complaints of discrimination. The letters of 21 July 2023, 20 February 2024 and 5 April 2024 all deal with a course of conduct which predated the applicant’s complaints. Moreover, it is clear from those letters and contemporaneous correspondence that the reason for that course of conduct was the University’s concerns about the applicant’s behaviour. A more logical and reasonable inference would be that the reason for the extension of the bans and restrictions was the University’s desire to address concerns about the applicant’s behaviour, than that the reason for those detriments was because she had complained of discrimination.

98. Taking the applicant’s evidence at its highest, I find that the likelihood that the Tribunal would find a causal connection between the applicant’s complaints of discrimination and victimisation and the decisions to ban her from parts of the University and to suspend her enrolment is remote.

99. Accordingly, the complaint of victimisation lacks substance and it would not be fair and just to grant leave for this part of the complaint to proceed before the Tribunal.

Application for non-disclosure and non-publication orders refused

100. On 13 June 2025 the applicant lodged an “Application for Miscellaneous Orders” seeking an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) prohibiting the publication or broadcasting of the applicant’s name and any information that might enable the applicant to be identified.

101. The University opposes such an order. The parties both stated at the hearing of the leave application that they rely on the respective written submissions and supporting documents which they have filed in relation to this application.

102. The applicant relies on written submissions and supporting documents provided to the Tribunal on 2 August 2025, 28 August 2025 and 5 September 2025. The University relies on written submissions and supporting documents provided on 14 August 2025 and its further submissions provided by email on 2 September 2025.

103. One of the objects of the NCAT is Act that the Tribunal has processes that are "open and transparent": s 3(f).

104. A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise: NCAT Act, s 49(1). This reflects the principle of open justice: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) at [58]; Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221 at [9]-[10]; Frost v TAFE NSW (No 2) [2019] NSWCATAD 12 at [10]-[12] and [23].

105. The Tribunal “may” make certain non-disclosure orders under s 64(1) of the NCAT Act, if it is satisfied that “it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason”. The orders the Tribunal may make include an order prohibiting or restricting the disclosure of the name of any person (including identifying information about a person), or of evidence or matters contained in documents lodged with or received in evidence by the Tribunal: s 64(1)(a) and (c) and s 64(4).

106. The prospect of embarrassment and stress affecting a complainant is generally “an insufficient basis for departing from the general rule that the Tribunal’s proceedings should be conducted openly”: Dezfouli at [73].

107. The principle of open justice means that “the power contained in s 64 should be exercised sparingly”: Carroll v Tokdogan [2015] NSWCATAD 200 at [8].

108. The applicant submits that a non-publication order is desirable in these proceedings. In her written submissions in chief filed in relation to this issue she says in summary that publication of her name or identifying details may cause her psychological harm, and prompt threats and interference from [redacted]. The applicant relevantly submits:

1. She is protected by an apprehended personal violence order (APVO) issued by NSW Police, in February 2025, following harassment, intimidation and threats from [redacted].

2. The applicant is undergoing treatment for health conditions, which her treating medical practitioners have confirmed are exacerbated by psychological stress.

3. The online publication of Tribunal decisions would generate a fear that the subject of the APVO may identify the applicant, monitor the proceedings and attempt to contact the University or otherwise interfere in the proceedings. This prospect causes the applicant significant psychological distress which may deter her, and others in similar circumstances, from engaging with lawful dispute resolution mechanisms.

4. NCAT Policy 2 “Publishing Reasons for Decision” says that anonymisation of parties is routine in matters involving the Victims Rights and Support Act 2013 (NSW) and community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). This matter “engages with the policy objectives underpinning the Victims Rights and Support Act, particularly the need to avoid re-traumatisation through public exposure of sensitive matters”.

109. The applicant has provided to the Tribunal supporting documents including medical records and evidence of the APVO.

110. In her written submissions in reply the applicant raises additional issues which were not addressed in her submissions in chief. She says, in essence, that anonymisation is desirable because:

1. the proceedings will involve sensitive medical information; and

2. the proceedings will involve evidence of contested incidents, which, if published alongside the applicant’s name, will cause “lasting damage despite never being substantiated”.

111. I am not persuaded that it is desirable in this instance to make a confidentiality order for the following reasons.

112. I accept that the applicant is currently protected by an APVO following an incident involving [redacted] who was alleged to have become violent, smashed a window and thrown items at the applicant. However, there is no evidence that supports the applicant’s assertion that the publication of her name or identifying information in the proceedings would prompt that person to monitor, or otherwise seek to interfere in, the proceedings. Moreover, there is no evidence that the University or any potential witness in the proceedings could be influenced by such a third party. If the applicant has concerns in this regard they would appear to be speculative.

113. Similarly, whilst there is evidence before me that the applicant’s health conditions may be exacerbated by psychological stress, and that the behaviour of the [redacted] has been a stressful experience for the applicant, there is no medical or other evidence that addresses how the publication of the applicant’s name in the proceedings might affect her psychological or physical health. Again, the applicant’s concerns in this regard appear to be speculative and without substance.

114. The submission with regard to the Victims Rights and Support Act 2013 (NSW) and Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is misconceived. These are not proceedings under the Victims Rights and Support Act, nor indeed under any community welfare legislation (as that term is defined in the Community Services (Complaints, Reviews and Monitoring) Act). The proceedings involve a dispute under discrimination legislation between an individual and a tertiary education institution about alleged discrimination and victimisation.

115. I am also not persuaded by the applicant’s submission regarding untested allegations. In support of this submission she refers to events which occurred in May 2023 where she says staff at the University made various unproven allegations about the applicant. To the extent that allegations may be made against the applicant in the proceedings I agree with the submission of the University that these proceedings are no different to any other.  Proceedings before the Tribunal invariably involve allegations being made against parties, some of which will ultimately not be established on the evidence. The fact that such allegations might be embarrassing or humiliating is generally not a sufficient basis for departing from the requirement of open justice.

116. There will of course be situations in which a suppression order will be desirable for other reasons. For example, in ACE v State of NSW (TAFE Commission and DET (No 2) [2011] NSWADT 77 - which the applicant relies upon in her submissions - the Tribunal was satisfied that a suppression order was desirable because the application was not brought merely to avoid damage to reputation or “embarrassment”, but rather to prevent the misuse of sensitive information regarding the applicant's mental health. However here, neither party has filed its pleadings, evidence or submissions and it is not yet known what, if any, allegations the University will make in relation to the applicant. In such circumstances I cannot be satisfied that a non-disclosure order is desirable at this early stage of the proceedings.

117. Finally, with regard to the applicant’s health information, when making this decision there has been no need for me to delve into the details of the applicant’s health information. I have identified in very broad terms some of the applicant’s health conditions and whilst I accept this is personal information to which there is attached a degree of sensitivity, I am not satisfied that it is of sufficient sensitivity to justify a non-publication order.  It is not yet apparent whether, or to what extent, it will be necessary to disclose sensitive health information when the substantive proceedings are decided. Thus, the application for non-disclosure on this basis is premature.

118. The University has suggested, without making any concessions, that an appropriate balance might be struck if the Tribunal was to make an order that redacts from publication all of the applicant’s sensitive health information that may be the subject of evaluation by the Tribunal in any proceedings.  The applicant says she does not consent to such an order and presses for an anonymisation order. She submits that as the proceedings involve disability discrimination, the Tribunal’s reasons will necessarily traverse the applicant’s diagnoses, functional impacts and prognosis and that a “redaction-only order would either (a) produce heavily opaque reasons (undermining open justice), or (b) prove unworkable in practice”. I do not agree. Until such time as the parties’ pleadings, evidence and submissions are before the Tribunal in the substantive proceedings, it will not be at all clear whether, or the extent to which, the applicant’s sensitive health information will need to be traversed at the hearing or discussed in the Tribunal’s reasons for decision.

119. Given that it has not been necessary to refer to sensitive health information in this decision, and that it is not yet known what, if any, health information will be relevant when deciding the substantive proceedings, I am not satisfied that the applicant’s concerns about this issue are a reason for making an anonymisation order, or a redaction order, at this time.

120. The applicant’s written submissions refer to a number of other authorities which she says support her position. I will briefly address each of these:

1. The facts in CBL v Sydney Water Corporation [2017] NSWCATAD 220 are distinguishable from the present case because there the non-publication order was not opposed by the respondent and was made in circumstances where there was a statutory obligation as to confidentiality as set out in s 22 of the Public Interest Disclosures Act 1994 (NSW).

2. CME v The University of Technology Sydney [2018] NSWCATAD 113 is not instructive because the decision does not disclose the nature of the applicant’s personal details which were relevant to the making of the non-publication order.

3. The facts in GVQ v Children’s Guardian [2025] NSWCATAD 160 are distinguishable from the present case. There a non-publication order was initially put in place because the Tribunal was concerned that the identity of a victim or witness (including a child with disability in a school setting) could be disclosed. The Tribunal decided not to lift the order so as to protect the identity of persons who had alleged sexual assault and sexual misconduct by the applicant and to protect the identity of the applicant’s children.

4. Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27 concerned an application under s 64(1)(d) of the NCAT Act which deals with non-disclosure of evidence and documents to some or all of the parties to the proceedings. There is no such application before me. Thus, beyond the general statements made in that decision about the principle of open justice, the decision is not relevant to the issues I must decide.

121. For all of these reasons I am refusing the application for non-disclosure orders.

122. If appropriate, it is open to the applicant to renew the application at a later date (ie when the substantive proceedings are being decided).

Orders

1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the applicant’s complaint of direct disability discrimination against the respondent, in relation to the decision to refuse the applicant’s application for re-enrolment in its PhD program, to proceed.

1. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the balance of the applicant’s complaints to proceed.

2. The applicant’s “Application for Miscellaneous Matters” filed on 13 June 2025 is dismissed.

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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

Amendments

04 November 2025 - Redaction of third party details at para 108, 112 and 113

Decision last updated: 04 November 2025