Cheluvappa v University of Canberra
[2018] ACAT 108
•1 November 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHELUVAPPA v UNIVERSITY OF CANBERRA (Discrimination) [2018] ACAT 108
DT 15/2018
Catchwords: DISCRIMINATION – referral of complaint by Human Rights Commission – complaint of direct and indirect discrimination on ground of race and sex in the area of education – respondent’s application to strike out application as frivolous or vexatious, lacking in substance and/or abuse of process – whether applicant’s application foredoomed to fail
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32
Discrimination Act 1991 ss 7, 8, 18, 68
Human Rights Act 2004 s 21
Human Rights Commission Act 2005 ss 53A, 53C, 78
Subordinate
Legislation cited: University of Canberra Student Conduct Rules 2017Cases cited:Council of the Law Society of the ACT v The Legal Practitioner [2011] ACAT 49
Gardner & Beaver v The ACT Planning and Land Authority [2010] ACAT 64
Gindy & Chief Minister and ACT Government and Ors [2011] ACAT 67
Jamieson Mary v Australian Worker’s Union and Anor [1999] VCAT 628
Robert John King v The Honourable Terence John Higgins [2009] ACTSC 153
The State Electricity Commission Board v Rabel [1998] 2 VR 102
Tribunal: Presidential Member E Symons
Date of Orders: 1 November 2018
Date of Reasons for Decision: 1 November 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 15/2018
BETWEEN:
RAJKUMAR CHELUVAPPA
Applicant
AND:
UNIVERSITY OF CANBERRA
Respondent
TRIBUNAL: Presidential Member E Symons
DATE:1 November 2018
ORDER
The Tribunal orders that:
1.Upon being satisfied that the application is frivolous and vexatious and lacking in substance it is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
Summary
1. In 2018 Rajkumar Cheluvappa (applicant or Mr Cheluvappa) was a third year student enrolled in the Bachelor of Nursing at the University of Canberra (respondent). An incident occurred in February 2018 while he was undertaking the 2017-2018 Summer Intensive Clinical Placement at the National Capital Private Hospital (NCPH) which was detailed in an Incident Report provided to the respondent and dealt with by the respondent.
2. Mr Cheluvappa lodged a complaint with the Human Rights Commission (HRC) alleging unlawful discrimination by the respondent in the area of education[1] in its dealings with the applicant following receipt of the Incident Report on the basis of his protected attributes of race[2] and sex.[3] When the HRC determined that conciliation was unlikely to be successful as a means of resolving the complaint the applicant sought that his complaint be referred to the ACT Civil and Administrative Tribunal (tribunal). The complaint was referred to the tribunal by letter dated 10 July 2018.
[1] Discrimination Act 1991 section 18(2)
[2] Discrimination Act 1991 section 7(1)(r)
[3] Discrimination Act 1991 section 7(1)(v)
3. As stated by the then General President of the tribunal in Gindy & Chief Minister and ACT Government and Ors (Gindy)[4], the tribunal regards complaints referred by the HRC under section 53A of the Human Rights Commission Act 2005 (HRC Act) as applications made to the tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes of the proceedings before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that parties to tribunal proceedings on a complaint referred to the tribunal are the complainant and the person complained about.
[4] [2011] ACAT 67 at [1]
4. The respondent successfully sought that, pursuant to sections 32(1)(b) and 32(2)(b) of the ACAT Act the applicant’s application be struck out as frivolous and vexatious; not disclosing a prima facie case of unlawful discrimination and lacking in substance (strike out application).
5. The reasons below explain why the Tribunal has granted the respondent’s application and dismissed the applicant’s substantive application.
6. In summary, the Tribunal found that the applicant’s application was frivolous and vexatious, lacking in substance, disclosed no prima facie case of unlawful discrimination, was without merit and was foredoomed to fail.
7. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member hearing this matter.
Background
8.In his complaint to the HRC the applicant stated that the incident giving rise to his unlawful discrimination complaint comprised two parts and occurred on 2 February 2018 during the last few hours of his four week long 2017-2018 Summer Intensive Clinical Placement, Learning for Professional Practice 5, (LPP5), of his Bachelor in Nursing, at the NCPH. He claimed that a Registered Nurse (RN) made a false accusation (the Incident Report) about his conduct at NCPH on that day which resulted in the respondent recording his grade for this component of his degree as NX fail.
9.This incident can be summarised from Mr Cheluvappa’s complaint to the HRC as follows:
Part one:
(a)On 2 February 2018 RN was demonstrating the use of a post-angioplasty/stent on a patient in the Coronary Care Unit (CCU) to another Registered Nurse, another student nurse and the applicant when she mentioned that the vagus nerve is present in the femoral area and stimulation of the vagus nerve in that area may trigger a vasovagal response. The applicant corrected RN in front of the patient. RN interrupted the applicant and said that he was not a doctor to know that, whereupon the applicant said to RN she can research the facts herself. The applicant started to correct RN again whereupon RN said that he was not competent to comment on that. The applicant said he requested RN to cool down and then succinctly summarised the arms of the vasovagal response.
Part two:
(b)Sometime afterwards, when the applicant was seated writing progress notes, RN approached him and
… verbally spewed forth venom (and saliva) at an “undesirably close proximity”, perambulated around with facial contortions and hand gestures, and walked away threatening [him] with dire consequences (of failure). … She utilised profane language and disparaging terms. … I had to ask (RN) twice to get lost. … (RN) created an Incident Report about my (alleged) conduct where she felt unsafe and threatened. …[5]
The applicant alleged that RN’s behaviour was discriminatory and said
I felt intimidated, vulnerable, threatened, unsafe and mistreated. I was the victim not the perpetrator. The urgent need for me at that point in time was to stop listening to RN’s acerbic language, and to stop getting literally and physically splattered with her saliva. I desperately wanted her to move away. Don’t I have the “basic right” to ask someone to “get lost” when someone comes uncomfortably close to where I am sitting, spews expletives, absurdities and vitriol (laced with saliva) and threatens to impede my progress?[6]
[5] Pages 11 and 12 Discrimination Complaint to HRC
[6] Complaint to HRC page 12
10.In the complaint to the HRC the applicant claimed that the respondent was vicariously liable for RN’s alleged discriminatory conduct at the NCPH. However, the applicant informed the Tribunal at the hearing of the respondent’s application for summary dismissal on 20 September 2018 that he was no longer pursuing his claim against the respondent based on it being vicariously responsible for RN’s conduct at NCPH. His remaining claim in the complaint was that the respondent had engaged in unlawful discrimination against him based on his race and sex in the action it took following receipt of the Incident Report.
Action following the Incident Report
11.Upon the Nursing and Midwifery Faculty becoming aware of RN’s Incident Report, the applicant was notified of a meeting, described by the respondent as a ‘pastoral chat meeting’ on 9 February 2018 to find out his perspective of the events. The applicant attended the meeting with the respondent’s employees – Dr Jane Frost, Associate Professor and Discipline Lead, Ms Kathryn Sainsbury, Lecturer and LPP5 Unit Convenor, and Ms Julie Blackburn, Clinical Convenor. Ms Sainsbury and Ms Blackburn made separate contemporaneous notes of this meeting[7] which were before the Tribunal.
[7] Being annexures 2 and 3 of the respondent’s submissions filed 10 August 2018
12.After this meeting Dr Frost emailed the applicant on 12 February 2018 and advised him:
As an incident report has been completed about your conduct, in which a female staff member felt unsafe and threatened, this unprofessional behaviour does not meet the required practice level for the standard of engaging in therapeutic and professional relationships for LPP5. You will therefore be awarded an NX grade for LPP5. Additionally, as your behaviour was considered threatening we have referred you to Dr Tricia Brown ADE for non-academic misconduct.[8]
[8] Applicant’s submissions 5 August 2018
13.After receiving the email dated 12 February 2018 the applicant stated he “humbly submits to the decision”.[9]
[9] Applicant’s submissions 1 September 2018, at [98]
14.On 23 February 2018 Dr Frost submitted a Referral of the applicant for suspected non-academic misconduct in the form of professional misconduct. The Referral included the following statements:
Of concern is the aggression shown by the student in a clinical area. Additionally the student had no insight into how his actions prior to this incident had been inappropriate. As a final year nursing student Rajkumar showed no insight into how the patient might feel when the RN completing a procedure was challenged during the procedure by a nursing student about her knowledge. The knowledge in question had no direct implication to the procedure being completed and would not have impacted the care being given.
It was felt by the team in attendance at the meeting [9 February 2018] that Rajkumar had not behaved in a professional manner and therefore did not meet the competency standards for the placement. He was given a fail grade for this placement on the behaviours he demonstrated.
I am making this referral based on the aggressive behaviour reported and witnessed on a clinical site. This behaviour is in breach of professional standards and expectations of students at UC.[10]
[10] Annexure 4 respondent’s application for interim or other orders 10 August 2018
15.On 27 February 2018 the applicant changed his mind about submitting to the respondent’s decision set out in the email to him dated 12 February 2018 (see [13] above) and asked Dr Upton, Acting Dean, Faculty of Health to overturn his NX fail grade (the grievance).
16.On 28 February 2018 the applicant emailed his discrimination complaint to the HRC.
17.On 28 February 2018 Dr Upton appointed Associate Professor Semple, Associate Dean, to investigate the applicant’s grievance.
18.On 6 March 2018 Associate Professor Semple interviewed the applicant face to face. The applicant stated that, at this interview, he was again refused copies of the official documentation or the opportunity to talk to witnesses and the reason cited was ‘University Policy’.
19.On 8 March 2018, the applicant withdrew from LPP5 9047, which he was enrolled in a second time because of the NX fail decision made on 9 February 2018, and Transition to Graduate Practice 9052. The applicant said, as the census date was 9 March 2018, he withdrew from these units to avoid paying the fees which would have become payable on 9 March 2018.
20.On 9 March 2018 he was contacted by Ms Wallis, third year coordinator, Nursing and Midwifery, who informed him as he had withdrawn from the semester one 2018 units he needed to withdraw from the semester two 2018 enrolments and take an intermission for semester two 2018.
21.On 13 March 2018 Dr Semple responded to the applicant’s grievance and overturned the applicant’s fail grade awarded based on an alleged breach of the student conduct rules, and awarded him a pass grade.
22.At the interview on 6 March 2018 and in the letter dated 13 March 2018 Associate Professor Semple stated that “the alleged non-academic misconduct will be dealt with through a different process.”
23.By separate letter to the applicant dated 13 March 2018 Associate Professor Semple stated:
It has been brought to my attention by Dr Jane Frost that potential misconduct may have occurred during your clinical placement over the summer semester in the unit Learning for Professional Practice 5. More specifically it was reported that you may have been involved in an incident during the final hours of your clinical placement in which you demonstrated unprofessional behaviour towards a registered nurse at the National Capital Private Hospital. The alleged behaviour contravenes 9.3.(i) and (j) of the University of Canberra Student Conduct Rules 2015.
On reviewing the evidence provided, I have determined that the matter warrants a Summary Inquiry under the terms of the University of Canberra Student Conduct Rules 2015. The inquiry takes the form of a meeting at which you will have the opportunity to present your case to me as the prescribed authority holding the inquiry. … you may make statements and submit evidence at the inquiry …
24.On 14 March 2018 the applicant’s proposed 2019 study plan provided for him to complete two units.
25.The applicant attended the Summary Inquiry which was held on 15 March 2018.
26.By letter to the applicant dated 20 March 2018 Associate Professor Semple stated:
The inquiry has found that you have intentionally breached the aforesaid student conduct rules (9.3.i and j) and as a consequence of these actions, I have determined that;
1. This letter serves as a formal reprimand.
2. You will be required to write a letter of apology to the hospital and/or the relevant nursing staff. This letter will be reviewed by the UC Discipline of Nursing prior to submission.
3. You will meet with the UC Nursing Discipline prior to commencement of your next clinical placement in order to determine a remedial/development plan to ensure similar incidents do not occur again.
4. The details of his Academic Misconduct will be placed on file and may be referenced if there are any future breaches of the University of Canberra Student Conduct Rules 2017.
This letter set out information for the applicant if he wished to appeal the decision and concluded:
Please note that in order to uphold the academic integrity of the institution the University takes these matters very seriously and any future breach of the University of Canberra Student Conduct Rules 2017 may be considered a ‘serious violation’ under the terms of the University of Canberra Student Conduct Rules 2017.
27.The applicant emailed Associate Professor Semple, Assistant Professor Frost and Professor Strickland on 22 March 2018 informing them that he “humbly submits to your formal reprimand” and enclosing his letter of apology. This formal apology was rejected by Professor Strickland, Head of School, and the applicant was asked to re-draft his letter of apology. Professor Strickland accepted the applicant’s third draft of the apology letter on 29 March 2018.
28.On 15 May 2018 the HRC closed the complaint under section 78(1)(f) of the HRC Act on the basis that “conciliation is unlikely to be successful as a means of resolving this complaint”. On 10 July 2018 the applicant asked the HRC to refer the complaint to the Tribunal.
The Tribunal proceedings
29.At a directions hearing on 23 July 2018 the following directions were made:
1. The applicant is to file with the Tribunal and give the respondent by Monday 6 August 2018 a document setting out:
(a)each attribute on the basis of which he asserts he has been unlawfully discriminated against and victimised;
(b)each fact, matter, circumstances or thing which, either individually or taken collectively, amounts to unlawful discrimination or victimisation under the Discrimination Act 1991 and which was the subject of the complaint to the Human Rights Commission; and
(c)the orders the applicant seeks the Tribunal make at the conclusion of the hearing referring to the provision of the Human Rights Commission Act 2005 which provides the Tribunal with the power to make each order.
2. The respondent is to file with the Tribunal by 17 August 2018 a response to the complaint as particularised under Order 1 and any application to strike out the application.
30.On 10 August 2018 the respondent filed an application for interim or other orders seeking an order pursuant to section 32(2)(b) of the ACAT Act that the application be dismissed as frivolous or vexatious, lacking in substance and/or is otherwise an abuse of process within the meaning of section 32(1) of the ACAT Act.
31.On 20 August 2018 the tribunal listed the respondent’s interim application for hearing on 20 September 2018 and directed the applicant to give to the tribunal and to the respondent any written submissions in relation to the interim application by 3 September 2018. The applicant filed lengthy submissions on 1 September 2018 (September Submissions).
32.On 10 September 2018 the respondent filed a further application for interim or other orders seeking ‘that the tribunal refuse to hear the application or part of the application of the Applicant dated 1 September 2018 or dismiss part of that application.’ The grounds relied on by the respondent included:
The pleadings of the Applicant dated 1 September 2018 (September Submissions) focus almost entirely on making allegations about the conduct of the advocate for the Respondent. The Tribunal warned the Applicant about personal attacks on the advocate for the Respondent on 20 August 2018. No reasonable person could justify the nature of the pleadings. The pleadings disclose no reasonable cause of action, are incoherent, oppressive and scandalous in totality.
The hearing on 20 September 2018
33.On 20 September 2018 the Tribunal heard the respondent’s applications under section 32 of the ACAT Act to have the complaint or part or parts of the complaint dismissed as being frivolous or vexatious, lacking in substance and/or being otherwise an abuse of process within the meaning of section 32(1) of the ACAT Act. The applicant appeared on his own behalf. Ms Amy Kilpatrick, the respondent’s Deputy General Counsel, represented the respondent at the hearing. The applicant and Ms Kilpatrick made oral submissions during the hearing.
34.During the hearing the Tribunal considered the written submissions filed by the applicant, the respondent’s oral and written submissions in relation to those submissions and the applicant’s oral submissions. The Tribunal struck out parts of the applicant’s complaint[11] as lacking in substance, misconceived, and foredoomed to fail for the reasons set out below during the hearing. At the conclusion of the hearing the Tribunal reserved its decision in relation to the remaining three discrimination claims. This is the Tribunal’s decision.
The powers of the Tribunal
[11] Discrimination complaint 4 and Victimisation complaints 1 and 2
35.The Tribunal, as a creature of statute, may only do things, make decisions and exercise powers which a law specifically authorises it to do.
36.The respondent relies on section 32 of the ACAT Act which provides:
Dismissing or striking out applications
(1) This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2) The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii)without the leave of the tribunal.
Note …
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
…
Note The tribunal must observe natural justice and procedural fairness (see s 7).
37.The onus is on the person applying for the dismissal or strike out to establish that this is the case.
38.In The State Electricity Commission Board v Rabel (Rabel)[12] the Victorian Court of Appeal considered the operation of section 44(c) of the Equal Opportunity Act 1984 (Vic) which also provided at that time a power for summary dismissal. The Court of Appeal said that a complaint could not be dismissed under section 44(c) unless it was clear beyond doubt that the complaint was lacking in substance, and that the complainant had no arguable case which should be allowed to be resolved at a full hearing.
[12] [1998] 1 VR 102
39.In Rabel, the Court of Appeal set out the principles for considering an application to strike out or dismiss a complaint at a preliminary stage of the proceedings in the context of a discrimination matter. These principles were summarised by the Victorian Civil and Administrative Tribunal (VCAT) in Jamieson Mary v Australian Worker’s Union and Anor (Jamieson)[13] as follows:
[13] [1999] VCAT 628
(1) Section 109 [of the Equal Opportunity Act 1995] permits an application to be made by the respondent at a preliminary stage; s75 [of the Victorian Civil and Administrative Tribunal Act 1998] permits an order to be made at any time including on the Tribunal's own initiative. The procedure to be adopted is in the Tribunal's discretion. The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward further material, including affidavits and oral evidence.
(2) If in a proceeding a complainant indicates to the Tribunal that the whole of their case is contained in the material put before the Tribunal, the Tribunal is entitled to determine the matter by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(3) However, if a complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(4) A proceeding to dismiss or strike out a complaint is similar to an application to the Supreme Court in civil proceedings for summary dismissal. Both are designed to prevent abuses of process. However, it is a serious matter for the Tribunal, in an interlocutory proceeding which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.
(5) In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed. In a s75 hearing where the Tribunal proceeds on its own initiative the Tribunal must be satisfied on all the material before it that the complaint should not be allowed to proceed.
(6) For a dismissal or strike out to succeed, a respondent must show, or the Tribunal when proceeding on its own initiative must be satisfied, that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.
(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.
(9) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.
40.In the present case the Tribunal heard the application for summary dismissal at an interlocutory stage on the basis of pleadings and submissions. The applicant’s submissions were lengthy, at times repetitive, and comprised 56 pages filed on 5 August 2018 and 144 pages filed on 1 September 2018.
41.In Gindy the tribunal stated that a decision to strike out a claim under section 32 of the ACAT Act has the inevitable consequence that the applicant for the matter will not have access to a full hearing on the merits which, prima facie, engages the applicant’s right to a fair hearing under section 21 of the Human Rights Act 2004 (HR Act). This Tribunal adopts the reasoning of the tribunal in Gindy,[14] namely
I have considered the extent to which a decision under section 32 of the ACAT Act is consistent with the human rights contained in the HR Act and, specifically with the right to a fair trial. The right to a fair trial does not, in my view, mean that the tribunal cannot or should not exercise its strike-out power in a matter which it is satisfied is doomed to fail, or a matter which lacks substance in respect of any element that is essential for the complainant to prove. The right of access to the tribunal and the right to a full hearing is not absolute. Section 32 of the ACAT Act pursues a legitimate aim of discouraging litigants from bringing claims that have no merit. …
[14] At [28] – [31]
42.The tribunal in Gindy also considered the phrase ‘frivolous and vexatious’ and stated:
18. The phrase “frivolous and vexatious” is a term of art that has been considered in many cases. In Pitt v One Steel Reinforcing Pty Ltd[15] Grey J said:
The word “frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
19. It was considered recently by Member Chenoweth in the matter of Council of the Law Society v Legal Practitioner reported at [2011] ACAT 49. Mr Chenoweth said:
The use of the term “frivolous and vexatious” has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success.
[15][2008] FCA 923 at [9]
43.In considering the respondent’s strike out application I now turn to the applicant’s application and his submissions.
Mr Cheluvappa’s complaints of discrimination
44.In his complaint to the HRC the applicant detailed allegations of bullying and racial abuse by RN, which, at the hearing he advised he was no longer pursuing as he acknowledged that the respondent was not vicariously liable for RN’s conduct at NCPH. He also detailed his allegation of unlawful discrimination by Dr Jane Frost. In his written submissions dated 5 August 2018 and 1 September 2018, Mr Cheluvappa identified four complaints of unlawful discrimination based on his protected attributes of race and sex and two complaints of victimisation also based on these protected attributes , namely:
(a)Discrimination 1 - The discriminatory process of indictment without giving Mr Cheluvappa documentation or the opportunity to defend;
(b)Discrimination 2 - Dr Frost prefers white female’s testimony to evidence-backed testimony of coloured male (Mr Cheluvappa);
(c)Discrimination 3 - Dr Frost’s ‘salvo’ consequentially forces Mr Cheluvappa to withdraw from all 2018 units – loss of one year’s pay;
(d)Discrimination 4 - Lies presented by Dr Frost, Professor Strickland and Ms Kilpatrick to prevent HRC conciliation;
(e)Victimisation 1 – UC victimises Mr Cheluvappa via Ms Kilpatrick; and
(f)Victimisation 2 – UC victimises Mr Cheluvappa via a “Gag Order”.
Particulars of the alleged unlawful discrimination
45.The applicant’s first discrimination complaint arose from the meeting on 9 February 2018 and its outcome.
46.The applicant described this meeting as a “badgering session” where he
was talked over by [Dr] Frost on multiple occasions … refused copies of official documentation, the opportunity to talk to witnesses, or the opportunity to offer a systematic written rebuttal prior to [Dr] Frost’s decision which was to be handed down on 2018 Feb 12 Monday…No presumption of innocence. Pronounced guilty spontaneously.[16]
[16] Applicant’s submissions dated 5 August 2018, page 9
47.The applicant submitted:
I was mistreated on the basis of one RN’s vindictive “personalised” official complaint despite the entrenched presence of racist bullying at NCPH CCU, discussed with my CLN[17] at every meeting during my clinical placement at NCPH.
[17] Clinical Liaison Nurse
48.The applicant identified the instances of direct discrimination in his submissions as follows:
·[Dr] Frost, “my own” department head, accepted and endorsed a white female tortfeasor RN’s written report over my own true account
·Multiple overtures for ACT HRC-mediated conciliation on my behalf were refused, and two self-contradictory lies were given as flimsy excuses
·[Dr] Frost’s refusal to participate in the conciliation process is from her loathing of me, my black skin, my “lowly” student status, and my “lowly” sex. Am I so despicable in [Dr] Frost’s eyes that she refuses to admit her prima facie guilt or to negotiate with me out of court? Are my black skin and my subcontinental accent anathema to her eyes and ears?[18]
[18] Applicant’s submissions 5 August 2018 at pages 11-12
49.The applicant identified the instances of indirect discrimination as:
·Despite multiple requests, I was not given copies (or even a look) at the white female tortfeasor’s report
·On multiple occasions I was rejected opportunity to collate and present evidence to support my innocence
·On multiple occasions I was rejected a chance to rebut the white female tortfeasor’s false allegations systematically with evidence
·Multiple opportunities to apologise and make amends for discriminating against me were not taken up by my detractors.[19]
[19] Ibid page 12
50.The applicant submitted that Dr Frost assumed that he had displayed unprofessional behaviour just because an Incident Report had been completed by the RN citing ‘unprofessional behaviour’ and, in doing so, was engaging in a classic circulus in demonstrando fallacy.[20]
[20] Ibid page 9 - used what she was trying to prove as the proof itself
51.In relation to the second discrimination complaint – ‘Dr Frost prefers white female’s testimony to evidence backed testimony, of coloured male (the applicant)’ - the applicant identified the following FACT, MATTER, CIRCUMSTANCE, OR THING :[21]
[21] Ibid at page 19
·[Dr] Frost relied on one white female’s written complaint over my word, without giving me an opportunity to contact witnesses, collate evidence, and prepare a systemic rebuttal.
·Despite asking on several occasions, I was not given the Incident Report.
·[Dr] Frost took [RN]’s report as true and my narratives as false because [RN] is a white female, and I am a black-skinned male
oNo presumption of innocence (for my male black skin).
oPronounced guilty spontaneously (as I have a black skin).
·My serious allegations of (RN)’s tortious conduct (assault and battery) were not taken up by [Dr] Frost, [Professor] Strickland and [Ms] Kilpatrick despite my later submissions.
52.The applicant said in his submissions that, for Discrimination 2, he also relied on the same events, relevant legislation, case law, breach of law and application of law which he had submitted in support of his Discrimination 1 complaint.
53.In relation to the third discrimination complaint – ‘[Dr] Frost’s ‘salvo’ consequentially forces Mr Cheluvappa to withdraw from all 2018 units Loss of 1 year’s pay’ - the applicant referred to the timeline in his submissions.
54.It is helpful to set out the parts of the timeline and commentary the applicant relied on in relation to this complaint:
(a)9 February 2018 – meeting with Dr Frost, Ms Sainsbury and Ms Blackburn in relation to Incident Report from 2 February 2018.
(b)12 February 2018 – Dr Frost’s email to applicant conveying NX Fail grade for LPP5.
(c)27 February 2018 applicant lodges grievance about his NX Fail grade.
(d)6 March 2018 –At grievance interview with Associate Professor Semple, the applicant was refused copies of official documentation or the opportunity to talk to witnesses.
(e)8 March 2018 - As the applicant’s grade appeal was not forthcoming before the census date, 9 March 2018, the applicant withdrew from the two Semester 1 2018 units he had been enrolled in to avoid being financially liable for these units.
(f)9 March 2018 – Census Date - the third year Nursing and Midwifery Co-ordinator informed the applicant that as he had withdrawn from the two Semester 1 2018 units he needed to remove his Semester 2 enrolments. This forced the applicant to take a yearlong intermission delaying his graduation and a year’s salary as a Year 1 Postgraduate Registered Nurse.
(g)13 March 2018 – Associate Professor Semple overturns applicant’s NX Fail grade and awards him a Pass grade.
(h)14 March 2018 – the third year Nursing and Midwifery Co-ordinator makes the applicant a new study plan with just two units to complete in 2019.
55.The basis for the applicant claiming, above, that he has lost a year’s pay as a nurse appeared to be because the outcome of his grievance appeal was notified to him some four days after the census date by which time he had withdrawn from those units in 2018. He said he could not undertake them until 2019.
56.In this regard the Tribunal asked the applicant at the hearing if he had discussed the impending census date with Associate Professor Semple on 6 March 2018. He said he had. When asked if he then discussed Associate Professor Semple’s decision to award him a pass grade with the census office on or after 13 March 2018 and applied to have his 2018 enrolment varied so that he could re-enrol for 2018 he said he had not as to do that he would have had to have obtained signed documentation from the Faculty of Nursing and after what he had been through he decided against that course of action.
57.Implicit in the Discrimination 3 complaint is the applicant’s allegation in support of the Discrimination 1 complaint that the Fail grade awarded by Dr Frost was “unreasonable beyond reasonable doubt” and “prima facie unreasonable” and “[Dr] Frost and [Professor] Strickland had actually achieved what they set forth to achieve in this issue, specifically to cause significant disadvantage to [the applicant] owing to [his] race and sex.”[22]
[22] Applicant’s Submissions 1 September 2018 at page 73, points 1., 2., and 3.
58.The fourth discrimination complaint in [44] above related to the period between 22 March 2018 and 19 April 2018 following Mr Cheluvappa being advised on 20 March 2018 of the outcome of the summary inquiry into his alleged non-academic misconduct. The advice included the finding that Mr Cheluvappa had intentionally breached 9.3.(i) and (j) of the University of Canberra Student Conduct Rules 2017, that the respondent’s letter served as a formal reprimand and the applicant was required to write a letter of apology to the relevant nursing, academic and administrative personnel at NCPH. During this period Mr Cheluvappa had written two draft letters of apology which had both been rejected by Professor Strickland. His third draft letter of apology was accepted on 29 March 2018.
59.In his submissions Mr Cheluvappa questioned whether this letter of apology was “truly sent to RN” and stated he “requires electronic evidence or RN’s deposition as proof of this mandatory requirement of the ‘Summary Inquiry Outcome.’”[23]
[23] Applicant’s submissions 5 August 2018 at page 25
60.He also submitted under Discrimination 4 that Ms Kilpatrick, in forwarding the first draft of his letter of apology to the HRC and not his subsequent apologies, was engaging in an “egregious act of chicanery” to prevent HRC conciliation. He submitted that Dr Frost and Professor Strickland were complicit in this chicanery and that they and Ms Kilpatrick had engaged in “amoral, perjuring and discriminative actions against [him]”.[24]
[24] Ibid at page 32
61.The applicant sought the maximum number of the following remedies for the respondent’s alleged unlawful discrimination (Discrimination 4) which the Tribunal has summarised below:
(a)That the Tribunal refer Dr Frost and Professor Strickland to the Nursing and Midwifery Board of Australia (NMBA) and the Australian Health Practitioner Regulation Agency (AHPRA).
(b)Dr Frost must prepare a letter of admission to, and an apology for her subterfuge involving the two self-contradictory lies presented to the HRC to avoid their offer of conciliation; which letter must be vetted by the applicant prior to despatch and be addressed to the respondent’s trustees, the Dean and the HRC, copied to the applicant and the tribunal and if Dr Frost refuses the applicant requested that the Tribunal subpoena Dr Frost, Professor Strickland and Professor Semple to attend a tribunal hearing for the applicant to cross examine them “to ease out the facts”.
(c)Dr Frost must clarify whether the applicant’s third apology letter reached the RN and NCPH; and if not sent Dr Frost must prepare a letter of admission to and an apology for this deception (which must be vetted and endorsed by the applicant prior to despatch) to Professor Semple, the Dean and the respondent’s trustee.
(d)If one or more of the above remedies is granted in some form, then the applicant requests that Tribunal order that the respondent not be granted leave to appeal owing to the prima facie nature of the multiple acts of discrimination and victimisation meted out to the applicant.
62.At the hearing of the strike out application, Mr Cheluvappa, informed the Tribunal that he would not press his Discrimination 4 complaint in [58] above as the Tribunal had already decided, for the reasons set out below, that the two victimisation complaints involving allegations against the respondent’s legal counsel, Ms Kilpatrick, had no substance and would be dismissed. The fourth discrimination complaint was therefore dismissed.
The victimisation claims
63.Section 68 of the Discrimination Act 1991 deals with victimisation. Victimisation means subjecting or threatening to subject a person to some form of detriment because that person has, such as in the present matter, filed a discrimination complaint.
64.The victimisation claims had not been included in Part E, which related to Victimisation, of Mr Cheluvappa’s complaint to the HRC. Accordingly, it was not included in the referral from the HRC pursuant to section 53A of the HRC Act.
65.After referral of his complaint to the tribunal Mr Cheluvappa introduced the victimisation claims in his submissions.
66.For Mr Cheluvappa’s claims of victimisation to succeed he had to establish each of the following elements:
(a)That he was subject to or threatened to be subject to some form of detriment;
(b)Because he had lodged a claim of discrimination.
67.In relation to the first claim of victimisation Mr Cheluvappa had relied on the same facts which he had included in Discrimination 4 (see [58] above). He further submitted that on 23 July 2018, at the directions hearing, Ms Kilpatrick had refused an opportunity for an amicable out of court settlement via conciliation mediated by the HRC between himself and the respondent by informing the tribunal that the respondent had no responsibility for alleged discrimination faced by students at placement venues.[25] Accordingly, the applicant submitted the respondent was not willing to participate in mediation.
[25] Applicant’s submissions 5 August 2018 at page 33
68.In relation to the second claim of victimisation Mr Cheluvappa submitted that the respondent had sent a ‘gag’ order to some of its personnel asking them not to correspond or communicate with him in relation to his claims before the tribunal.
69.These claims had been brought against the respondent and its legal representative and appear to arise from the legal representative corresponding with the HRC on behalf of the respondent in her legal capacity and appearing before the Tribunal on 23 July 2018, again in her legal capacity.
70.The applicant identified the remedies he sought for the alleged victimisation as:
(a)The appointment of an Amicus Curiae to oversee changes to UC Laws dealing with ‘misconduct’ and student grievances.
(b)The referral of Dr Frost and Professor Strickland to the NMBA and AHPRA for breach of their code of conduct not to discriminate.
(c)Ordering the respondent to provide the tribunal and the applicant with all relevant documents and communications, potential witnesses, interviewees and investigators.
(d)The Tribunal appoint neutral external overseers to supervise and/or assess the applicant in his remaining two units.
(e)If one or more of the above remedies is granted in some form, then the applicant requests that Tribunal order that the respondent not be granted leave to appeal owing to the prima facie nature of the multiple acts of discrimination and victimisation meted out to the applicant.
71.In the second application for interim or other orders filed by the respondent on 10 September 2018 the respondent sought that the applicant’s September Submissions be struck out. These submissions in reply to the respondent’s strike-out application were subtitled “Systemic refutation of Kilpatrick’s red herrings, strawman fallacies, and direct prevarications.”
72.The grounds relied on by the respondent in the second strike out application included:[26]
The pleadings of the Applicant dated 1 September 2018 focus almost entirely on making allegations about the conduct of the advocate for the Respondent. The Tribunal warned the Applicant about personal attacks on the advocate for Respondent on 20 August 2018. No reasonable person could justify the nature of the pleadings. The pleadings disclose no reasonable cause of action, are incoherent, oppressive and scandalous in totality.
[26] Respondent’s application for interim or other orders filed 10 September 2018
73.Upon considering the voluminous material which Mr Cheluvappa had filed, especially his September Submissions, the respondent’s applications for interim or other orders and it’s written submissions, and the parties’ oral submissions, I formed the view at the hearing that these complaints against the respondent and its legal representative were misconceived. The applicant’s September Submissions contained derogatory, disrespectful and inflammatory statements and imprudent personal attacks which reflected poorly on the applicant. The applicant seeks a range of remedies which the Tribunal lacks the power or jurisdiction to make.
74.There was no question of real substance in either of the two victimisation claims to go to a full hearing. I found, on the evidence that Mr Cheluvappa provided as part of his submissions, that he will be unable to establish the first element – that he was subject to or threatened to be subject to some form of detriment because he had filed a discrimination complaint.
75.If the applicant claims that the detriment he suffered was the refusal of the respondent to participate in conciliation, the Tribunal finds that there is no merit in such a claim. The respondent was entitled to decline to participate in conciliation. The respondent’s staff were in no way obliged to communicate with the applicant or any other third party in relation to litigation outside of appropriate legal requirements.[27] The respondent was entitled to conduct its defence of the applicant’s claims in accordance with its legal advice.
[27] Respondent’s submissions at [30]
76.For these reasons I found that these complaints were frivolous and vexatious as set out in [42] above and should be summarily dismissed.
77.I now turn to the remaining discrimination complaints.
Discrimination claims 1, 2 and 3
78.The meaning of ‘discrimination’ is set out in section 8 of the Discrimination Act 1991, which provides:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
…
79.In the present case, for the applicant’s complaints of unlawful discrimination to succeed he must establish each of the following elements:
(a)That he was treated unfavourably by the respondent or disadvantaged by the respondent by imposing or proposing to impose a condition or requirement on him;
(b)In an area of public life;
(c)Because of a particular attribute.
80.In support of each of these complaints the applicant set out in his submissions the events from his timeline leading to a fact, matter, circumstance or thing; the fact, matter, circumstance or thing he relied on; the detriments he said he suffered due to the respondent’s actions and inactions; various sections from the Discrimination Act 1991 and HR Act; case law from the High Court, Federal Court of Australia and the tribunal; instances of direct and indirect discrimination and the remedies he sought.
81.In his complaint to the HRC the applicant set out in considerable detail the alleged discrimination by Dr Jane Frost to him which, in his submissions appeared to become Discrimination complaints 1, 2 and 3. He described the alleged unlawful discrimination under these headings:
(a)“Dr. Frost’s Jurisprudence”,
(b)“The Reality of Oppression is not a Movie Court Scene” and
(c)“Arm-Twisting & the Benefit of Doubt in a Developed Country with Humane Values”
82.Under Dr Frost’s jurisprudence the applicant stated:
In Dr. Frost’s written words, “… as an Incident Report has been completed about your conduct, in which a female staff member felt unsafe and threatened, this unprofessional behaviour does not meet the required practice level…” Herein, please note that Dr. Frost assumes that I displayed “unprofessional behaviour” just because an Incident Report has been completed citing “unprofessional behaviour”. This is a classic circulus in demonstrando fallacy (circular fallacy), where Dr. Frost uses what she is trying to prove as the proof itself…[28]
[28] Applicant’s complaint to HRC at page 12
83.The applicant then posed a series of questions in his complaint:[29]
If anyone completes an Incident Report first, does that become the truth?
If I, as a black-skinned student, had created an Incident Report for assault and battery first, would RN as a white RN, have been fired from her NCPH position?
Could Dr Frost’s “summary order” be in order to please “the higher echelons of the NCPH hand-in-glove with RN to protect her prevarications? Could there be further “underhand dealings and manipulations” behind and underneath this gross miscarriage of justice?
How can one ascertain the facts of an alleged incident, when there were no eyewitnesses (except the plaintiff RN herself) or audiovisual recordings.
This is RN’s account versus mine. How can one objectively ascertain whose account is true or “truer”?
How can one ascertain the facts of an alleged incident when there the alleged perpetrator (= the victim = me) has not been given a copy of the Incident Report or “Referral”?
In Dr. Frost’s jurisprudence, is the testimony of 2 men equal to that of 1 woman, or is the testimony of 2 black-skinned individuals (like me) equal to that of 1 white skinned individual (like RN)?
In Dr. Frost’s jurisprudence, is the testimony of 1 “high and Lofty” RN equal to that of 2 “Lowly” nursing students?
[29] Ibid
84.The applicant submitted:[30]
[30] Ibid
Dr. Frost’s “decision” is akin to a summary execution order by a kangaroo court in a banana republic. Even National Socialist (NAZI) criminals were permitted to present their “witnesses and evidence” at the Nuremberg courts.
and
…I am also suggesting that there is a strong possibility of gender-based discrimination (against the male by a female-dominated organisation) and bullying.
and
To add insult to injury, Dr. Frost integrated a “If you want support … contact …” segment in her decision email, where the only support I need is to mollify the impact of sustained racist bullying by omission and commission at the NCPH, CCU and the travesty of a decision by Dr. Frost.[31]
[31] Applicant’s complaint to HRC at page 13
85.Under “The Realty of Oppression is not a Movie Court Scene” in [81] above, the applicant complained that he had not been given detailed specifics of allegations before the meeting with Dr Frost and others on 9 February 2018 and had not been given a copy of the Incident Report or “Referral” at the meeting despite his specific requests. He posed the questions:
Why should academic disciplinary proceeding not give these basic human rights to information and defence to the student Defendant?
Are UC nursing students cheap doormats to be trampled on?[32]
[32] Ibid
86.Under “Arm-twisting & the Benefit of Doubt in a developed country with humane values” in [81] above the applicant stated:[33]
(1) In a developed nation with humane values, the weakest in society ought to be protected.
(2) Caution should be exercised to curb despotic tendencies and the utilisation of excessive power to oppress and subjugate the weak – Everyone in every situation ought “to have a fair go”, whenever possible.
(3) The benefit of doubt in an equivocal situation ought to be given to the weaker individuals, and the individuals who will experience significantly more impact.
(4) Students, especially black-skinned students are the weaker individuals in the power –“balance” with their University faculty counterparts and clinical supervisors. In contrast to the financially and professionally “secure” faculty members and clinical staff, students are non-earning or less-earning, and are precariously placed in the power equation, with constant arm-twisting and the perpetual threat of failure.
(5) The possibility of gender-based discrimination (against the male) and bullying cannot be ruled out.
(6) Australia is a developed country with humane values, not a banana republic or a totalitarian tyranny. I am the weaker individual (financially, professionally and racially), and the situation is equivocally inconclusive (if you deliberately desist from seeing me as a victim because of my colour and “lowly” student status).
(7) The benefit of the doubt (if truly any in the first place) should be given to me.
[33] Ibid
87.In Discrimination complaints 1 and 2 the applicant sought similar remedies to the remedies he sought in Discrimination 4 (see [61] above). In Discrimination 3 he sought the maximum monetary compensation permissible under ACAT jurisdiction and an order that the Tribunal not grant leave to the respondent to appeal. As stated in [73] above the applicant seeks a range of remedies, some of which the Tribunal lacks the power or jurisdiction to make.
88.I now turn to the respondent’s strike out application.
The respondent’s section 32 application
89.In the first application for interim or other orders the respondent relied on the following grounds:
(a)The applicant has failed to particularise his application.
(b)The applicant has failed to provide any evidence to support his application.
(c)The application is frivolous or vexatious, lacking in substance and/or is otherwise an abuse of process within the meaning of section 32(1) of the ACAT Act.
90.In the accompanying submissions the respondent submitted:[34]
46. The Applicant’s submissions at their highest could be conceptualised as conspiracy and feelings of outrage resulting from the student misconduct proceedings against him… feelings of outrage and unfounded conspiracy are not sufficient to meet the test of discrimination or victimization at law pursuant to the Act.
47. … the Applicant seeks to use the proceedings to obtain an outcome he did not achieve through the misconduct proceedings where he did not appeal against that finding.
48. The proceedings can be determined on the pleadings, or in this matter the submissions alone per Jamieson Mary v Australian Workers Union & Anor [1999] VCAT 628 and per Mewett v University of Canberra [2018] ACAT 61.
49. In all the circumstances, the Application describes no reasonable cause of action, has no reasonable prospects of success and therefore is misconceived and is foredoomed to fail.
50. The Applicant has failed to establish a prime facia(sic) case and [the application] is unsustainable in law and fact per Jamieson Mary v Australian Workers Union & Anor…
51. The Tribunal has the power to dismiss the Application as frivolous or vexatious, lacking in substance and/or as an abuse of process pursuant to sections 32(1)(a). 32(1)(b) and 32(1)(c) of the ACT Civil and Administrative Tribunal Act 2008 and in accordance with the powers of the Tribunal considered in Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67 at [13] and per Mewett v University of Canberra [2018] ACAT 61.
[34] Respondent’s submissions filed with application for interim or other orders on 10 August 2018 at pages 5, 6
91.The tribunal has exercised its powers under section 32(2)(b) of the ACAT Act in a number of decisions which include Gindy, Gardner & Beaver v The ACT Planning and Land Authority [2010] ACAT 64 (Gardner) and Council of the Law Society in the ACT & The Legal Practitioner [2011] ACAT 49 (ACT Law Society) in the following circumstances:
(a)Where the application is foredoomed to fail (Gardner),
(b)Where there is a cause of action which has no reasonable prospects of success (ACT Law Society), and
(c)Where there is no arguable case (Gindy).
92.The Tribunal has carefully considered all of the applicant’s submissions in response to the respondent’s strike out application in which he sought to refute the respondent’s submissions and to respond to the criteria in Jamieson.
93.Having considered each of the factors in [39] above, the substance of Mr Cheluvappa’s claims allowing for the most favourable interpretation to him and all of the oral and written submissions the Tribunal is satisfied and finds that the applicant’s remaining three claims of unlawful discrimination in relation to the respondent’s consideration of the Incident Report and action taken do not disclose an arguable case and are foredoomed to fail.
94.The applicant has not identified any evidence of actions taken by Dr Frost or any other staff member of the respondent because of his race or sex. Nor has he provided any evidence that that the respondent’s conduct, at any time, was connected in any way to the alleged discriminatory conduct of RN.
95.At its highest it appears that the applicant relies on perceptions and assumptions he has made in relation to Dr Frost’s conduct and Professor Strickland’s conduct which were unsupported and unfounded. His statements of his perceptions and assumptions were unhelpfully couched in racist terms. His language was both inflammatory and derogatory and, again, reflected poorly on him.
96.In this regard the Tribunal noted that in his submissions the applicant relied on his perceptions when complaining of discriminatory behaviour by RN in another incident later on 2 February 2018. He stated that when he was standing with his bag on his shoulder RN asked him to put it away, even though the other students had their bags with them. He stated he felt picked on; ignored and sad. He said the overall treatment of him in the clinical area at NCPH resulted in him feeling that he “was good for nothing and knew nothing”. However, he admitted that nothing was actually said by the staff to him, but rather this was what he perceived.[35]
[35] Julie Blackburn’s contemporaneous notes of 9 February 2018 meeting, being Annexure 2 to respondent’s application for interim or other orders 10 August 2018
97.Notwithstanding his 200 pages of written submissions he did not set out any evidence which remotely supported his unlawful discrimination claims based on race and sex. On no reasonable view could the Tribunal justify the relief sought by Mr Cheluvappa.
Other matters
98.The Tribunal observes that upon being notified of the NX Fail mark for his LPP5 course it was always open to the applicant to seek an internal grievance through the respondent. When he did follow this appropriate course of action, his result was changed to a pass mark.
99.The Tribunal further observes that the Summary Inquiry into the allegation of non-academic misconduct in the form of professional misconduct by the applicant resulted in the finding that he had intentionally breached 9.3.(i) and (j) of the University of Canberra Student Conduct Rules 2017 as set out in [58] above and that Mr Cheluvappa did not appeal that decision.
100.The Tribunal also noted the following compelling statements in the Comments/Evaluation completed by the applicant’s Clinical Liaison Nurse[36] supervisor at NCPH two days before the incident the subject of the Incident Report:
…
Things that Raj could work on in LPP6;
· Raj would benefit in reflecting around how he has interacted with staff. His approach to staff could at times be misunderstood and therefore create some conflict.
· To continue to develop and grow his emotional intelligence. He has grown in this area over placement, however there is room for more growth in this area over LPP6.
· Raj would benefit from reserving judgment of colleagues. This could potentially create conflict with peers. Granted that the position he is in at the moment is different to a work environment however, there are times and units in which he will work where judging colleagues may lead to conflict or worse, poor patient outcomes.
[36] Which the applicant provided to the Tribunal on 23 July 2018 and annexed to his appeal to the respondent from the decision to award him NX Fail grade for LPP5
101.The Tribunal endorses those statements.
Conclusion
102.In Robert John King v The Honourable Terence John Higgins[37] Refshauge J of the ACT Supreme Court said;
77. … The courts should be accessible to all, even though the formulation of their [a party’s] claims may be unorthodox and difficult to manage and the claims themselves may be challenging to accepted norms. Against this, the courts must not permit their processes to be abused and for potential defendants be put to trouble and expense for claims that have no possible prospects of success.
[37][2009] ACTSC 153
103.Having considered each of the factors in [39] above and for the above reasons the Tribunal is satisfied and finds that in relation to Discrimination complaints 1, 2 and 3:
(a)the respondent has discharged the onus on it and established that the applicant has no arguable case; and
(b)pursuant to section 32 of the ACAT Act, the applicant’s application should be dismissed. It is frivolous and vexatious. It does not have reasonable prospects of success. To proceed with the applicant’s application would be an improper use of the tribunal’s processes and put the respondent to trouble and expense in responding to claims that have no possible prospect of success.
104.The Tribunal will order that Mr Cheluvappa’s application be dismissed.
…………………………..
Presidential Member E Symons
HEARING DETAILS
FILE NUMBER:
DT 15/2018
PARTIES, APPLICANT:
Rajkumar Cheluvappa
PARTIES, RESPONDENT:
University of Canberra
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Ms A Kilpatrick
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
20 September 2018
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