Braiding v Charles Sturt University

[2015] NSWCATAD 242

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Braiding v Charles Sturt University [2015] NSWCATAD 242
Hearing dates:	29 September 2015
Date of orders:	20 November 2015
Decision date:	20 November 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	1. Allegation 3, that the Respondent breached s 52 of the Anti-Discrimination Act 1977 (NSW), is dismissed. 2. The applicant’s application to amend the complaint to add Points 1, 2, 3, 4, 5(a) and (b), 6, 7 (a) and (b), 8(a), (b) and (c), 9 and 10 of the Points of Claim document is refused. 3. Within 3 weeks of the date of these reasons the applicant is to file Amended Points of Claim in accordance with these reasons. 4. The matter is listed for a case conference at 2 pm on 16 December 2015.
Catchwords:	JURISDICTION – content of complaint referred by President of Anti-Discrimination Board to Tribunal – no exercise of discretion by President to decline any part of the complaint – whether whole of original complaint referred PRACTICE AND PROCEDURE – application to amend complaint to include additional complaints – relevant considerations
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 89B, 92, 102, 103
Cases Cited:	Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 Deva v University of Western Sydney [2008] NSWCA 137 Elliott v Nanda (2001) 11 FCR 240) Horne v Press Clough Joint Venture (1994) EOC 92-556 IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 at 702; Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674) Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83
Texts Cited:	Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press)
Category:	Procedural and other rulings
Parties:	Gerard Braiding (Applicant) Charles Sturt University (Respondent)
Representation:	Applicant (self-represented)   Respondent (Ms Murrell)
File Number(s):	1510081

reasons for decision

Introduction

1. On 31 July 2013 Mr Braiding complained to the President of the Anti-Discrimination Board (the President) that Charles Sturt University (the University) had discriminated against him in breach of the Anti-Discrimination Act 1977 (NSW). Mr Braiding alleged that the University had discriminated against him on the ground of disability (schizophrenia), victimised him and “aided and abetted” another person to breach the Anti-Discrimination Act.

2. The President referred the complaint to the Tribunal but, in the Report to the Tribunal, did not specifically mention the complaints of victimisation or “aiding and abetting”. The President only mentioned alleged disability discrimination on the basis that the University had refused to waive a $100 fee to re-mark one of Mr Braiding’s assignments.

3. Following a case conference in the Tribunal Mr Braiding was directed to file Points of Claim. The University objected to the document Mr Braiding filed on the basis that it contained allegations which the President had not referred to the Tribunal as well as fresh allegations which had not been part of the original complaint. Mr Braiding says that most of the allegations he made in the Points of Claim were in his original complaint and were referred to the Tribunal by the President. In relation to the fresh allegations Mr Braiding applies for his complaint to be amended so that those allegations are included as part of his complaint. The University does not accede to either of those applications and applies for several parts of the complaint to be dismissed on the basis that they are misconceived, lacking in substance, out of time or that the subject matter of the complaint should be dealt with by another body.

4. On the basis of all these applications, three issues arise for consideration:

1. which allegations that Mr Braiding made to the President were referred to the Tribunal pursuant to s 93C of the Anti-Discrimination Act?

2. should any of those complaints be summarily dismissed by the Tribunal pursuant to s 102 of the Anti-Discrimination Act?

3. in relation to any new complaints in the Points of Claim, should the Tribunal amend the complaint to include those complaints pursuant to s 103 of the Anti-Discrimination Act?

Background

5. In 2012 Mr Braiding enrolled as a student at the University in a Bachelor of Social Work degree. At the conclusion of the 2013 academic year he transferred to a Bachelor of Psychology degree. He says he has been diagnosed with schizophrenia and that when doing assessments he can become quite anxious and finds it difficult to cope. He withdrew from the Bachelor of Psychology course in mid-2014.

6. Mr Braiding lodged a complaint with the President on 31 July 2014. That complaint stated that:

Unfortunately, I told the University Ombudsman that I have a disability and was having problems with my integrated course with TAFE. In 2012, I mentioned that the teacher Renée Walker who was part of a dispute with TAFE and who was at the appeal hearing and who I never thought would end up being my teacher at University. I feel that I have been marked unfairly by her and when I asked for the final test to be remarked because of this prejudice it was not done. Nothing ever came of that complaint.

When I complained about the way I was marked in 2014 by Peter Gardini and then by Paola Castillo the University Ombudsman dismissed the complaint and made claims of me having aggressive behaviour. This was discriminatory because of my disability and all that she knew of my previous matter with TAFE. She was aiding and abetting the previous matter. This was also victimisation for making a complaint against an educational organisation.

This University Ombudsman’s complaint about my aggressive behaviour was in retaliation to my complaint about Peter Gardini’s violent behaviour towards me and my complaint about the way I was marked by Paola Castillo and the Universities unwillingness to act on the situation unless I pay $100. This is discriminatory because being on a disability support pension I do not have $100 so they offered me a loan, but the problem is I don’t have $100 now or in the future let alone to be able to pay the interest on top of the loan.

What kind of discrimination: this was disability discrimination, victimisation and also aiding and abetting disability discrimination.

I have complained to the Dean of Students, Julia Cole and the University secretary, Mark Burdack and Mark Burdack gave some findings but the problem is that I still have to pay $100 to have my assignment remarked.

7. On the complaint form, in answer to the question, “[W] hen did the discrimination or harassment happen?” Mr Braiding wrote that it began in “July 2012”. He left blank the question asking when it finished but circled “yes” in answer to the question as to whether it was still going on. On 11 August 2014 the President’s delegate decided to accept part of Mr Braiding’s complaint for investigation: Anti-Discrimination Act, s 89B(2). The part of the complaint that was accepted was conduct that occurred during the 12 months prior to lodgement of the complaint with the President. The period covered by the complaint is therefore 31 July 2013 to 30 July 2014.

8. Mr Braiding has now abandoned any complaint about Renée Walker that happened in 2012 as set out in the first paragraph of the written complaint. The remaining complaints can be summarised as follows:

1. The decision by the University Ombudsman to dismiss a complaint about the way Mr Braiding was marked in 2014 constituted:

1. disability discrimination in breach of s 49L of the Anti-Discrimination Act - the University Ombudsman knew Mr Braiding had a disability because of a previous complaint against TAFE; (Allegation 1)

2. victimisation in breach of s 50 of the Anti-Discrimination Act for making a complaint against an educational organisation; (Allegation 2) and

3. aiding and abetting the University’s breach in “the previous matter” which is a breach of s 52 of the Anti-Discrimination Act (Allegation 3) .

2. The decision by the University Ombudsman to complain about his aggressive behaviour constituted victimisation in breach of s 50 of the Anti-Discrimination Act because it was in retaliation for Mr Braiding having complained about Peter Gardini’s violence towards him and about the way he was marked by Paolo Castillo (Allegation 4).

3. The decision by the University to insist that he pay $100 before his paper could be remarked constituted discrimination on the ground disability in breach of s 49L of the Anti-Discrimination Act (Allegation 5).

Legislative scheme for the referral of complaints

9. On 6 February 2015 the President referred the complaint to the Tribunal pursuant to s 93C(a) because he was of the opinion that the complaint could not be resolved by conciliation.

10. Section 94A sets out the form of the complaint to be referred to the Tribunal:

(1) If a complaint is referred to the Tribunal under this Division, the complaint is to comprise:

(a) the original complaint lodged with the President, and

(b) any amendment made pursuant to section 91C, and

(c) any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations.

(2) A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint.

11. The President included the original complaint and other documents obtained by him which helped identify the subject matter of the complaint. The report relating to any investigation by the President contains a summary of the complainant’s allegations in the following terms:

Mr Braiding requested that an assignment be remarked and alleges that the University has discriminated against him on the ground of his disability by imposing a $100 fee in relation to his application for a remark.

Mr Braiding receives a disability support pension and claims he does not have the financial means to afford the $100 fee. He raised his objection to this policy under the University’s Complaints Policy. A copy of the response to that complaint from the University’s Secretary, Mr Mark Burdack, dated 30 July 2014 is attached to Mr Braiding’s complaint lodged with the Board. In that letter Mr Burdack advises Mr Braiding that he will ask the University’s Division of Finance for consideration to be given to the fees payable by students on the disability support pension

Which allegations that Mr Braiding made to the President of the Anti-Discrimination Board were referred to the Tribunal?

12. The University submits that the President only referred Allegation 5 to the Tribunal because that is the only matter mentioned in the summary of complaint. The University also points to a letter from the President to Professor Andrew Vann, the Vice-Chancellor of the University, dated 19 August 2014 in which the President makes it clear that only part of the complaint is being accepted:

Please note that the President’s delegate, pursuant to section 89B of the Act decided to accept Mr Braiding’s complaint for investigation in part. The part of Mr Braiding’s complaint that has been accepted for investigation relates to alleged discriminatory conduct that may have occurred during the 12 months prior to lodgement of the complaint with the Anti-Discrimination Board which covers the period on or after 31 July 2013.

13. In the same letter under the heading “Relevant Statutory Provisions” the President stated that Mr Braiding’s complaint “appears to be covered” by ss 49A-C (definition of disability and unjustifiable hardship) and s 49L (discrimination in the area of education). There is no reference to the provisions relating to victimisation (s 50) or aiding and abetting (s 52). According to the University, it can be inferred that the President had declined the complaint in so far as it alleged a breach of those provisions.

14. Mr Braiding submitted that the President’s Report contained only a summary of the complaint and that the President did not formally decline the other allegations. I take no account of a conversation that Mr Braiding said he had with an officer of the Anti-Discrimination Board as to that officer’s intention when referring the matter to the Tribunal. A report of that conversation is not reliable evidence of any decision of the President or his delegate made under the Anti-Discrimination Act and I give it no weight.

Consideration

15. Section 89B(1) of the Anti-Discrimination Act states that:

The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part.

16. Section 89B(2) sets out the circumstances in which the President may decline a complaint.

(2) The President may decline a complaint if:

(a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or

(b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or

(c) the conduct complained of could amount to a contravention of a provision of this Act (not including section 20D, 38T, 49ZTA or 49ZXC) for which a specific penalty is imposed, or

(d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or

(e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint.

17. Section 89B(3) provides that the President is to give notice of a decision to accept or decline a complaint. Under s 89(4), a decision to decline a complaint in whole or in part is not reviewable by the Tribunal.

18. Section 92 gives the President power to decline a complaint after it has been accepted, that is, “during investigation”.

19. By letter dated 19 August 2014, the President accepted part of the complaint. The part of the complaint that was accepted was the part that relates to alleged discriminatory conduct that may have occurred during the 12 months prior to lodgement of the complaint. Section 89B(2)(b) gives the President power to decline the whole or part of the conduct complained of if that conduct occurred more than 12 months before the making of the complaint. There is no power to accept only that part of the complaint that occurred less than 12 months before the complaint was filed. Because there is no dispute that only the events which occurred after 31 July 2013 form part of the complaint, there is no need to determine the validity or effect of the President’s decision.

20. The University submits that although the President did not formally decline any other part of the complaint, it can be inferred that he declined the victimisation and the aiding and abetting allegations. Support for that submission comes from the fact that in the report to the Tribunal and the letter to the Vice Chancellor, the President only mentions Allegation 1 and does not refer to the victimisation or aiding and abetting provisions of the Anti-Discrimination Act.

21. The Anti-Discrimination Act is beneficial legislation and should be construed liberally and in a way that gives effect to its purpose: IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 at 702; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182.

22. Section 89B and s 92 expressly empower the President to decline all or part of a complaint. Legal consequences follow from any decision made pursuant to those provisions. For example, the Tribunal may not review a decision of the President to decline all or part of a complaint at the outset under s 89B(2). If all or part of a complaint is declined later under s 92, an applicant has certain rights depending on the reason for the declination: s 93A and s 96. The statutory scheme provides for the President to exercise his discretion pursuant to the legislation and give notice of those decisions: s 89B(3) and s 92(1)(b).

23. In this case the President did not exercise any power under the Anti-Discrimination Act to decline any part of Mr Braiding’s complaint. Rather the President accepted the complaint. In those circumstances each of the five allegations Mr Braiding made in his original complaint forms part of the complaint referred by the President as long as the alleged breach occurred after 31 July 2013.

Should any of those complaints be summarily dismissed by the Tribunal pursuant to s 102 of the Anti-Discrimination Act?

24. Section 102 of the Anti-Discrimination Act provides that:

The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).

25. The grounds in s 92(1)(a)(i) or (ii) or (b) are as follows:

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

26. In my view Mr Braiding’s complaint of “aiding and abetting” (Allegation 3) is misconceived and should be dismissed.

27. Mr Braiding alleges that Ms Daye’s conduct in dismissing his complaint about how his assignments had been marked and alleging that he behaved aggressively was “aiding and abetting” the “previous matter with TAFE.” I understand Mr Braiding to be referring to a previous complaint of disability discrimination against the Technical and Further Education Commission NSW. That matter was referred to the Tribunal on 14 December 2012. Mr Braiding withdrew that matter following a settlement agreement being reached in June 2015.

28. Section 52 is headed “Aiding and abetting etc” and provides that:

It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

29. The effect of s 52 is that a person who contributes to an act of unlawful discrimination becomes jointly liable for the conduct. Rees, Rice and Allen refer to this kind of liability as “contributory liability”: Australian Anti-Discrimination Law, (2nd ed 2014, The Federation Press) at 773. There are very few cases where contributory liability has been found. It has, on rare occasions, been applied to the actions of third parties such as unions (Horne v Press Clough Joint Venture (1994) EOC 92-556), employment agencies (Elliott v Nanda (2001) 11 FCR 240) and companies other than the employer (Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674).

30. By relying on s 52 Mr Braiding must be asserting that Ms Daye caused, instructed, induced, aided or permitted TAFE to discriminate against him four years ago. That is clearly not what he intends to assert. My understanding of what Mr Braiding is actually asserting is that that Ms Daye is somehow exacerbating the discrimination that he has already been subject to by TAFE. That conduct, even if proved, could not constitute a breach of s 52. Mr Braiding’s reliance on that provision is misconceived and Allegation 3 is summarily dismissed.

31. In relation to Mr Braiding’s complaints of victimisation (Allegations 2 and 4), while they are not so misconceived as to warrant summary dismissal, Mr Braiding needs to explain in more detail, the legal basis for these complaints.

32. Victimisation is unlawful under section 50 of the Anti-Discrimination Act:

(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.

33. In order to constitute a breach of s 50 the detriment (dismissing his complaint about the way he was marked and complaining about his aggressive behaviour) must be on the ground that Mr Braiding did one of the things in s 50(1)(a)-(d). According to Mr Braiding, the thing that he did that prompted Ms Daye’s decisions was complaining about his mark and about Mr Gardini’s “violence” towards him.

34. Mr Braiding provides no detail of the complaints he made about Mr Gardini or Ms Castillo referred to in Allegation 4 so it is not possible to determine whether those allegations come within s 50(1)(a) – (d). Similarly, no detail has been provided about the complaint against an educational organisation in Allegation 2. In those circumstances, I direct that Mr Braiding file an Amended Points of Claim document either including or abandoning Allegations 2 and 4. If he seeks to include those allegations he needs to identify the precise conduct that was the trigger for the alleged victimisation and the precise conduct which constitutes the detriment under s 50. He also needs to explain how the detriment was “on the ground of” any of the matters in s 50(1)(a) – (d).

In relation to any new complaints in the Points of Claim, should the Tribunal amend the complaint to include those complaints?

35. Mr Braiding has not had the benefit of legal representation and has done his best to set out the basis of his complaint in a Points of Claim document dated 6 July 2015. That document contains 10 numbered paragraphs each of which will be examined to determine firstly whether they were part of the complaint as referred and secondly, if not, whether the complaint should be amended to add them.

36. The Tribunal’s power to amend a complaint is in s 103:

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

37. This provision allows the Tribunal, of its own motion, to amend a complaint at any stage in proceedings to include additional complaints: Sydney University Post Graduate Representative Association v Minister for Transport Services [2006] NSWADT 83 at [24]. 76. The discretion is unfettered but it must be exercised judicially. Relevant considerations include the merits of the complaint, its age, the reasons it was not lodged with the original complaint and any prejudice to either party.

Points one and two

(1) I complained about a mark and Charles Sturt University would not waive the fee

(2) On the basis of the information provided above I am suffering economic hardship because of my mental illness. I was unable to pay the $100 fee to have my assignment remarked because of the issues associated with my mental illness. This is a significant expense for me.

38. The University accepts that Points 1 and 2 fall within the scope of the complaint as referred by the President (Allegation 5). There is no need to amend the complaint to add these allegations and I refuse to do so.

Point 3

(3) I feel I have been treated harshly by the University Ombudsman, Miriam Daye, because this matter could have been resolved by now. On 2 May 2014 I spoke to Debbie Wheeler, learner support, and she told me that I was right on three occasions in referencing my assignment where psychology teacher, Paola Castillo, had marked me incorrectly

39. The University submitted that this point does not make any new allegation of discrimination and would not amount to a contravention of any provision of the Ant-Discrimination Act.

40. We agree with the University that this point makes no new allegation. It is essentially a repeat of Allegation 1. The allegation that the treatment was harsh does not identify any new conduct by the University. The conversation with Ms Debbie Wheeler on 2 May 2014 may be relevant evidence in relation to Allegation 1 but it is not a new complaint. Mr Braiding will need to provide a statement in which he sets out his evidence including the alleged conversation with Ms Wheeler if he considers it relevant to Allegation 1. Point 3 is not a proper matter to be included in Points of Claim and I decline to amend the complaint to add it.

Point 4

(4) I have been dealing with University Ombudsman and I was trying to resolve this with her but I don’t feel that the complaint has been resolved and she has not dealt with my discrimination issues.

41. This point goes no further than Allegations 1 and 2 relating to the decision by the University Ombudsman to dismiss a complaint about the way Mr Braiding was marked in 2014. No specific conduct other than the dismissal of the complaints is mentioned. It is not a proper matter to be included in Points of Claim and I decline to amend the complaint to add Point 4.

Point 5

(5) Previously, teacher Peter Gardini marked me incorrectly and he was asked (sic) Learner Support, Nicole Mitchell, for her opinion. When Nicole said I was right on two occasions where Peter had marked me incorrectly, then Peter had the mark changed. However, when the University Ombudsman Miriam Daye, was made aware that I had complained to Learner Support and had been told that I am right, Miriam decides to treat me less favourably than the other students by making it so that I cannot talk to anyone else about the matter except her. Charles Sturt University is vicariously liable for the Ombudsman ignoring my complaint because I have disability and as mentioned above for the extra stress that this has caused me. Also, teacher Paola Castillo could have also easily done something about the situation as Learner Support, Debbie Wheeler was going to ask Paola to review the mark until Debbie realised that Miriam was involved. Debbie then stopped trying to resolve the matter and Paola also refused to assist. Charles Sturt University is liable for the way that it has discriminated against me with this matter when having been fully aware of my disability and further for their neglect in regard to the added stress this caused after the assignment. This resulted in me having to withdraw from the course.

42. Point 5 makes two allegations that were not made in Mr Braiding’s complaint to the President. The first is that the University Ombudsman decided that Mr Braiding could not talk to anyone else except her about the way he had been marked and the second is that the conduct of the University Ombudsman prevented Debbie Wheeler and Paola Castillo from resolving the matter. This alleged conduct is said to constitute discrimination on the ground of disability. I will refer to these matters as Points 5 (a) and (b) respectively.

43. The University submitted that the complaint Mr Braiding made to the University Ombudsman was of an academic nature related to the manner in which an academic assignment was marked. Any dissatisfaction with the University’s processes should be dealt with under its policy framework in the first instance and subsequently in accordance with the administrative appeals processes. In those circumstances the subject matter of the complaint should be dealt with by the University, not the Tribunal.

44. This submission is based on s 92(1)(a)(v) of the Anti-Discrimination Act which gives the President power to decline a complaint during an investigation if he is satisfied that “the subject matter of the complaint has been, is being, or should be, dealt with by another person or body.” Because a complaint may be declined on that basis it is a relevant matter to consider when determining whether to amend a complaint to include it.

45. In Deva v University of Western Sydney [2008] NSWCA 137, the Court of Appeal considered the meaning of the phrase “the subject matter of the complaint” in s 92(1)(a)(v). The Court held that the subject matter of the discrimination complaint to the President of the Anti-Discrimination Board was that the applicant had been unlawfully dismissed on the ground of his race. The subject matter of the applicant’s application to the Australian Industrial Relations Commission was whether the termination of his employment was harsh, unjust or unreasonable. The Court concluded at [64] that:

As the subject matter of the appellant’s complaint to the ADB was one of unlawful dismissal and as the subject matter of his application to the AIRC was unfair dismissal, they were not the same.

46. Similarly, in this case, the subject matter of the complaint to the University Ombudsman was not the same as the subject matter of the complaint to the President of the Anti-Discrimination Board. It follows that the fact that Mr Braiding could have pursued his complaint within the University is not a basis for refusing to amend his complaint.

47. Secondly, the University submitted that many of Mr Braiding’s points, including Points 5 (a) and (b) were out of time and that the complaint should not be amended for that reason.

48. The President accepted Mr Braiding’s original complaint in relation to allegations which occurred during the period from 31 July 2013 to 30 July 2014. The Points of Claim were filed nearly a year later on 10 July 2015. While the University was on notice of Allegations 2, 3, 4 and 5, and responded to those allegations in a letter to the Anti-Discrimination Board dated to 19 September 2014, it was not on notice of the fresh allegations in the Points of Claim, including Points 5 (a) and (b) until July 2015.

49. While the power in s 103 to amend a complaint is unconfined, its most obvious application is to matters which occur after a complaint has been referred to the Tribunal. An applicant could not have included those matters in the original complaint. Amending a complaint in those circumstances avoids the time and cost involved for an applicant to make a new complaint to the President in circumstances where proceedings are already on foot in the Tribunal.

50. Allegations 5(a) and (b) occurred during the 12 month period covered by the original complaint. Mr Braiding could have raised those matters when he made that complaint. He says he did not do so because he did not have legal advice at the time and he was under pressure because time was running out for him because he had already missed several weeks of the course before lodging the complaint.

51. The University accepts that Mr Braiding did not have legal advice at the time of lodging the complaint but notes that on 25 September 2014, he requested an extension of time to enable him to obtain independent legal advice. On that basis the University submitted that Mr Braiding had ample opportunity to obtain legal advice and that his failure to do so is not a reasonable explanation for not raising these allegations at that time. We accept that Mr Braiding was given an opportunity to obtain legal advice in September 2014.

52. The University also submits that Mr Braiding’s claim that he was under pressure and that time was running out is misleading. By the 31 July 2014 when Mr Braiding made his complaint, he had sought and been given approval to withdraw from all his subjects. He was not under any time pressure because he had already decided to interrupt his studies. We accept that Mr Braiding was not, in an objective sense, under pressure to lodge a complaint quickly.

53. Allegations 1 and 2 are that the decision by the University Ombudsman to dismiss a complaint about the way Mr Braiding was marked constitutes disability discrimination and victimisation respectively. In Points 5 (a) and (b) Mr Braiding seeks to add two other events which preceded the dismissal of his complaint. Those events are that he could not talk to anyone except the University Ombudsman about the complaint and that the University Ombudsman prevented academic staff from resolving the matter.

54. The complaint should not be amended to include Points 5(a) and (b) for two reasons. Firstly, Mr Braiding could have made those complaints at the time he lodged the original complaints and the University would be prejudiced by the late addition of those matters. Secondly the allegations arise from the same circumstances as Allegations 1 and 2. Those allegations are that the dismissal of the complaints was in breach of the Anti-Discrimination Act. If Mr Braiding substantiates either of those complaints he may be entitled to a remedy under s 108. The two events outlined in Points 5 (a) and (b) leading up to the decision to dismiss the complaints are unlikely to have any material effect on any remedy to which Mr Braiding may be entitled. In those circumstances there is no significant prejudice to Mr Braiding if the complaint is not amended.

55. Point 6

(6) Peter Gardini said to me before the start of the next class after having marked me incorrectly that he did not discriminate against me. As I had never previously accused him of this or mentioned anything about discrimination to him I feel some member of staff has obtained knowledge of my previous discrimination complaint against TAFE and told Peter about it. Peter reacted aggressively to me later in this class after he had changed my mark, when he singled me out and verbally abused me. He was supposed to mark us using APA referencing but only knew Harvard referencing himself and so marked our assignment on APA referencing using Harvard referencing instead. Peter treated me less favourably than the other students for having made a complaint about my mark, in which he knew that was going to be in a lot of trouble over. Peter was fully aware of the nature of my disability and the effect that stress has on my condition.

56. Mr Braiding acknowledges that Mr Gardini changed his mark but says that he verbally abused him later in the class. Point 6 makes a fresh allegation that this constitutes victimisation.

57. For the same reasons as given in relation to Point 5, there is no reason why Mr Braiding could not have made this allegation at the time he lodged the original complaint and the University will be prejudiced if the complaint is amended because they will have to respond to events which allegedly took place in the first half of 2014.

58. In addition, this complaint lacks substance because it is not apparent that the trigger for the verbal abuse was that Mr Braiding did one of the things in s 50(1)(a) – (d). While I have directed that Mr Braiding provide particulars in relation to the events set out in Allegations 2 and 4, the absence of any attempt to describe how the complaint about his marks comes within those provisions means that Point 6, on its face, is lacking in substance. I decline to amend the complaint to add Point 6.

59. Point 7

I was denied the same access to counselling and disability services that the other internal students had the privilege of using. Charles Sturt University was using TAFE services and refused me access to seeing the disability consultant and counsellor. I was told that I could not see the disability consultant because I had been suspended (unfairly) from TAFE four years ago and that this service was on TAFE grounds. However, the counsellor was on Charles Sturt University campus and I was still denied access to see him until I became much stressed at the lack of adequate support, if any at all. There was no Disability Action Plan in place and there was no special consideration to take into account my disability. This is despite the fact that I had previously asked for the services to be put in place I was now in my third year at the Uni and the Uni had known for three years that I had a disability. I feel that I was being treated less favourably than the other students and discriminated against because of my disability. The effect that this had on me meant that I was finding it really difficult to cope when all these things reached a crisis at this time. I request to the Tribunal that this point to be included in my points of claim as this is very much an important part of my claim. The reason it was not included is because I am a layperson making this complaint and I did not have legal advice at the time of lodging a complaint with the ADB. I was also under pressure that time was running out for me with this course as several weeks of the course had already been missed before lodging the complaint with the ADB as I was eager to have the matter resolved as quickly as possible so I could continue with my course uninterrupted

60. Point 7 is a fresh complaint that has two parts. Firstly, Mr Braiding says he was denied counselling and disability services that other students had access to because it was on TAFE grounds and he had been suspended from TAFE four years ago. Later he says that the counsellor was on the University campus but Mr Braiding says he was still denied access. Secondly, Mr Braiding says that there was no Disability Action Plan or any special consideration taken into account for his disability. I will refer to these allegations as Points 7(a) and (b) respectively.

61. In relation to Point 7(a), Mr Braiding does not say when he was denied the counselling and disability services except that it was some time in his third year at the University. That suggests that it was some time in 2014. If that is the case then the University’s submission that the conduct occurred more than 12 months before the making of the complaint, that is before 31 July 2013, is incorrect. Nevertheless, this complaint could have been made when the original complaint was lodged. It is prejudicial to the University to allow Mr Braiding to amend his complaint to include an allegation which could have been made more than a year ago.

62. While the allegations, if correct, are significant, Mr Braiding has not specified the periods in which the services were denied, the precise services that have been refused or how any refusal constitutes disability discrimination. The allegations are unlikely to constitute direct disability discrimination as defined in s 49B(1)(a). The differential treatment element of that test requires the treatment afforded to Mr Braiding to be compared with the treatment afforded to other students without his disability, not to other students with his disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. It is not apparent how the allegation could come within the meaning of indirect discrimination in s 49B(1)(b). I refuse to amend the complaint to include Point 7(a).

63. In relation to Point 7(b) there is no requirement under the Anti-Discrimination Act for the University to develop a Disability Action Plan. Mr Braiding does not say what the ‘special considerations’ were that he wished the University to take into account. This allegation lacks merit and it could have been made when the original complaint was lodged. I decline to amend the complaint to include Point 7(b).

64. Point 8

(8) On 12 May 2014 at a meeting with the University Ombudsman, Miriam Daye, about the issue of being unfairly marked, she treated me less favourably than the other students by telling me that she was going to be the only person I could speak to if I was to continue with my studies. Miriam had previously treated me like this as detailed above in point 5. Further to this point, she had already cancelled a Learner Support appointment that I had booked just before the meeting and I was not informed that the appointment was cancelled. I feel that I have been victimised by her for making a complaint about my mark. I also feel that she is aiding and abetting a previous complaint that I had against TAFE for disability discrimination. The only reason I told her about this was to try and prevent this from happening to me again. At first, she was willing to assist but this changed once I made a complaint about the mark. On 19 May and 16 July two subsequent Learner Support meetings on campus were again cancelled. This is just an example of the frequent number of times the services were being continuously denied for me to have access to. Miriam treated me this way because I have a disability and because of the nature of my disability. Again I was being treated less favourably than the other two students being discriminated against.

65. This is a fresh allegation that the University Ombudsman told Mr Braiding that she was going to be the only person he could speak to if he was to continue his studies and cancelled learner support appointments he had booked. He alleges that this constitutes disability discrimination, victimisation for complaining about his mark and “aiding and abetting” a previous complaint. I will refer to these allegations as Points 8(a), (b) and (c).

66. I decline to amend the complaint to add any of these points. Mr Braiding had an opportunity to make these complaints when he lodged the original compliant with the Anti-Discrimination Board. The complaints lack merit and Mr Braiding will not be unduly prejudiced if they are not included.

67. In relation to the complaint of victimisation, Mr Braiding identifies the detriment as restricting his communications to Ms Daye and cancelling his appointments. Those detriments must be on the ground that Mr Braiding did one of the things in s 50(1)(a)-(d). According to Mr Braiding, the thing that he did that prompted Ms Daye’s decisions was complaining about his mark. It is not apparent on the basis of the material that Mr Braiding has provided that that conduct comes within any of the matters listed in s 50(1)(a)-(d). For that reason, the complaint lacks substance.

68. In Point 8(c), Mr Braiding alleges that Ms Daye’s conduct is “aiding and abetting” a previous complaint he had against the TAFE for disability discrimination. By relying on s 52 Mr Braiding must be asserting that Ms Daye contributed to TAFE discriminating against him four years ago. As I previously found, that is clearly not what he intends to assert. My understanding of his allegation is that Ms Daye is exacerbating the discrimination that he has already been subjected to by TAFE. That conduct, even if proved, could not constitute a breach of s 52. Mr Braiding’s reliance on that provision is misconceived.

69. Point 9

I request that this point of claim, in November 2013, be included as well. This was when I was asked to sit in a separate class for the exam as to the other students. Whilst I was seated patiently waiting for the exam to start I was suddenly asked by someone I did not know to pack up and leave the room. The person supervising exams embarrassed and humiliated me in front of the whole class by demanding I sit the exam in another room. I asked why she said because I have a disability. In front of the whole class she made other students aware that I have a disability by causing a scene. I said I did not want to and I wanted to stay here with the other students and then she made an approach to physically remove me. I was treated like a child in kindergarten who was asked to stand in the naughty corner, and this was because I have a disability. The supervisor only stopped when another student pleaded for her to stop and when she finally saw how distressed I was. The reason this has not been included in my complaint is for the above-mentioned reasons and because it is too hurtful for me to remember this incident and to talk about this distress.

70. The University submitted that it would be prejudicial for the complaint to be amended to add these allegations because of their age.

71. I assume this is an allegation of direct disability discrimination. The alleged conduct occurred in November 2013, several months before the events prompting the complaint he made in July 2014. The reason Mr Braiding gave for not complaining at the time was that “it is too hurtful for me to remember this incident and talk about the distress.” I accept that assertion. While Mr Braiding was traumatised by this event, it is prejudicial to the University for the Tribunal to accept a complaint that has been raised for the first time nearly two years after it occurred. I refuse to amend the complaint to add Point 9.

Point 10

On 22 April 2014 Charles Sturt University did not take into consideration my disability by requesting I sit two exams in one day when the other students were only sitting one exam a day. There was still no action plan in place for any adjustments needed or special consideration because of my disability in regards to what effect this might have on me. I was treated less favourably than the other students. Also, there was no acknowledgement that I even had a disability when they gave me this timetable. This was an ongoing problem that I was confronted with and any attempts by me to have the Uni address the problem were mostly unanswered as noted above or just compounded the problem by getting their backs up and then the Uni being harsh on me as a result of making a complaint

72. Mr Braiding gives no particular reason for failing to make this application at the time of the original application in July 2014. I have refused to amend the complaint to add an allegation relating to the absence of an action plan. The allegation that he had to sit for two exams in one day is not a matter of such significance or merit to justify amending the complaint at this late stage. Mr Braiding sat for the examinations and did not complain at the time. I decline to amend the complaint to add Point 10.

Conclusion

73. It follows from these reasons that Mr Braiding’s complaint comprises:

1. Allegation 1;

2. Allegation 5;

3. Allegations 2 and 4 (subject to Mr Braiding particularising those complaints as set out in these reasons);

Orders

1. Allegation 3, that the Respondent breached s 52 of the Anti-Discrimination Act 1977 (NSW), is dismissed.

2. The applicant’s application to amend the complaint to add Points 1, 2, 3, 4, 5(a) and (b), 6, 7 (a) and (b), 8(a), (b) and (c) and 9 of the Points of Claim document is refused.

3. Within 3 weeks of the date of these reasons the applicant is to file Amended Points of Claim in accordance with these reasons.

4. The matter is listed for a case conference at 2 pm on 16 December 2015.

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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

Decision last updated: 20 November 2015