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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCATAD 242
Decision Date: 20 November 2015

CaseChat Overview and Summary

In the case of Braidwood v Charles Sturt University, the Anti-Discrimination Tribunal was tasked with considering the content of a complaint that had been referred to it by the President of the Anti-Discrimination Board. The applicant sought to amend the complaint to include additional allegations of discrimination. The dispute centred on the scope of the complaint as referred by the President, and whether the Tribunal had jurisdiction to hear the amended complaint. The court had to decide whether the President had exercised any discretion to exclude certain parts of the complaint, and whether the Tribunal had the authority to hear the additional allegations proposed by the applicant.

The primary legal issues revolved around the interpretation of the referral by the President of the Anti-Discrimination Board and the jurisdictional limits of the Tribunal in hearing amended complaints. The applicant argued that the President had not exercised any discretion to exclude parts of the complaint, and thus the entire complaint should be considered. Additionally, the applicant sought to amend the complaint to include additional allegations, which the respondent contested on the grounds of procedural fairness and relevance. The court had to determine the relevance and admissibility of the proposed amendments in light of the original referral.

In delivering its decision, the Tribunal found that the President had not exercised any discretion to exclude parts of the complaint, and therefore the entire complaint was referred to the Tribunal. However, the Tribunal held that the applicant's proposed amendments were not admissible as they introduced new matters not contemplated in the original complaint. The Tribunal concluded that allowing the amendments would result in unfairness to the respondent and a deviation from the original scope of the complaint. Consequently, the application to amend the complaint was dismissed.

The Tribunal made several orders, including dismissing the allegation that the respondent breached section 52 of the Anti-Discrimination Act 1977 (NSW). The application to amend the complaint to include additional allegations was also refused. The applicant was directed to file amended points of claim within three weeks, in accordance with the Tribunal's reasons. The matter was subsequently listed for a case conference on 16 December 2015.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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