Court v University of Western Sydney
[2013] NSWADT 16
•24 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Court v University of Western Sydney [2013] NSWADT 16 Hearing dates: 29 November 2012 (on the papers) Decision date: 24 January 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The application for summary dismissal is refused.
2. The following directions are made;
a) By 1 March 2013, Ms Court is to file and serve a Points of Claim document setting out the legal basis for a complaint of indirect disability discrimination and any complaint of victimisation which accords with these reasons:
b) If Ms Court fails to file and serve Points of Claim without reasonable excuse by 1 March 2013, the complaint will be dismissed on 2 March 2013;
c) If Ms Court files and serves Points of Claim by 1 March 2013, the matter will be listed for a case conference at 2.30 pm on 6 March 2013.
Catchwords: SUMMARY DISMISSAL - whether complaints, if proven, could amount to a contravention of the Anti-Discrimination Act 1977 - complaints of indirect disability discrimination and victimisation misconceived - further opportunity given to characterise complaints Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4
Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404
Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753
Perera v Civil Service Commission [1982] IRLR 147
Dutt v Central Coast Area Health Service [2002] NSWADT 133Category: Interlocutory applications Parties: Katherine Court (Applicant)
University of Western Sydney (Respondent)Representation: Counsel
K Eastman SC (Respondent)
K Court (Applicant in person)
Minter Ellison Lawyers (Respondent)
File Number(s): 121057
REASONS FOR DECISION
Introduction
Ms Court, who was enrolled as a student at the University of Western Sydney, complains that the University has discriminated against her on the ground of disability in breach of the Anti-Discrimination Act 1977 (AD Act). The University denies the claim and has applied for her application to be summarily dismissed as misconceived or lacking in substance. Although the complaints as currently expressed are misconceived and lacking in substance, I have given Ms Court a further opportunity to re-characterise her complaints so that, if proven, they may constitute a breach of the Anti-Discrimination Act 1977. If she does not do so by the stipulated time, they will be dismissed.
Procedural history to application for summary dismissal
Ms Court did not attend the summary dismissal hearing on 15 November 2012. I adjourned the hearing and directed her to file and serve an explanation for her non-attendance together with any supporting medical or other evidence by 29 November 2012. I also made contingent directions for the determination of the summary dismissal application at a hearing on 13 December 2012 if a reasonable explanation was provided.
In a letter dated 21 November 2012 Ms Court wrote that she could not comply with the Tribunal's directions. Rather than provide a specific explanation for her non-attendance on 15 November 2012, she wrote, in part:
I am currently under 5 specialists and it is growing (4 of whom I have yet to meet, and one is on holidays til January). Whilst they are away I have been given about a dozen tests to have done everything from bloods, urine, CT, MRI, cardiac work up, essentially every major body organ requires both a specialist and a set of highly specific results to it.
The illness that UWS stumbled upon two years ago is now in it's active stage. I can name the Dr's for the tribunal but will not be able to get advanced access to them to accommodate the ADT's deadline which is not part of the complaint so makes no sense to drag Dr's into a complaint that has nothing to do with them.
. . .
In between all of this I am trialling medication that is also having a major effect on my system as I have never been on medication that interferes with my lifestyle like this before.
On 29 November 2012 I decided that Ms Court had not provided a reasonable explanation for her non-attendance on 15 November 2012 and directed that the University's application for dismissal be determined "on the papers" without the need for any further submissions or an oral hearing: Administrative Decisions Tribunal Act 1997 (ADT Act), s 76. The tentative hearing date of 13 December 2012 was vacated.
On 7 January 2013 Ms Court sent the Tribunal a copy of a medical certificate from a general practitioner, Dr Abu Enaythullah, dated 23 November 2012 certifying that:
Ms Katherine Court has a medical condition and will be unfit for work from 23/11/2012 to 32/11/2013
I assume that 32/11/2013 is intended to be 23/11/2013. This certificate does not apply to the time when the summary dismissal hearing was set down. In all the circumstances, the fairest and most efficient course is to determine the summary dismissal application on the papers: ADT Act, s 76. The issues can be adequately determined in the absence of the parties because both parties have lodged detailed written submissions and the University has provided a comprehensive bundle of supporting documents.
Background
Ms Court commenced a Bachelor of Laws Graduate Entry Program with the University on 5 February 2008. She was enrolled in subjects from 2008 to 2012. On 7 April 2011 Ms Court lodged a complaint of disability discrimination with the Anti-Discrimination Board. Later, she lodged further complaints and after receiving responses from the University, an unsuccessful conciliation conference was held. The President of the Anti-Discrimination Board referred Ms Court's complaints of disability discrimination and victimisation to the Tribunal. The President summarised the complaints in the following terms:
Complaint of alleged disability discrimination in the area of education lodged 7 April 2011
(1) Over the period 2006 to 2010 Ms Court experienced problems in accessing the University's e-learning environment known as vUWS. Between 2009 and 2010 she failed subjects due to the University's inability to provider her with material in printed form. She alleges that because the university's IT Department was refusing to cooperate with the University's conflict resolution staff, the University then made application to have her disability declared the reason she could not access v UWS. The complainant alleges that after having her declared 'number blind' and mentally ill, the University flat out refused to provide assistance for anything at all and instead it terminated her scholarship.
Further complaint of disability discrimination in the area of education lodged 4 July 2011
(2) The complainant alleges that the University discriminated against her on the ground of disability when in June 2011, it required that her application for cross-institutional studies be lodged on line. The complainant alleges that she cannot comply with the requirement because of her disability.
Complaint of unlawful victimisation lodged 28 September 2011
(3) The complainant alleges that the University unlawfully victimised her when instead of receiving documents related to her Academic Integration Plan (AIP) it subjected her to a deluge of emails designed to completely distress her.
At the first case conference, the University offered to prepare an "Elements Paper" identifying the issues raised by Ms Court's complaints. On 22 June 2012, the University filed that document and Ms Court provided a response on 26 July 2012. The University asserts that the response raises new claims that were not part of the complaint as referred by the President of the Board. I accept the University's submission that, in the absence of an application to amend the complaint, the Tribunal only has jurisdiction in relation to the complaints that were made to the Board.
At a case conference on 22 August 2012, Ms Court was directed to file her evidence by 19 September 2012. On 17 September 2012, Ms Court applied to the Tribunal for a summons to give evidence to be issued to Ms Edith Taylor, an employee of the University and for a summons to produce documents to be issued to the University. The documents Ms Court requested were:
(1) all computer generated communication between UWS staff and UWS staff regarding Katherine Court;
(2) all computer generated communication between UWS staff and Katherine Court.
The Tribunal advised Ms Court that her applications for summonses to be issued would be dealt with at the case conference on 26 September 2012. They have not been dealt with yet because the substance, or legal basis for Ms Court's complaints has been challenged. The legal basis for the complaints must be clear before a decision can be made as to whether material Ms Court's seeks to summons could be relevant to an issue in dispute.
No evidence was filed by 19 September but Ms Court wrote to the University on 30 August 2012 setting out a revised version of her complaint. That document also included some information under the heading "Statement'. The material under that heading is not a statement of evidence. It is a mixture of evidence and submissions.
In the 30 August document Ms Court stated that the complaint is confined to the following matters:
(1) Indirect discrimination - that the University denied access to enrolment and study materials on the vUWS computer system in circumstances where the University knew she could not use a computer;
(2) Indirect discrimination - that the University used email to convey information about exam dates, examinable material, and attending meetings knowing that she could not use a computer;
(3) Victimisation - that the University refused to assist Ms Court after the complaint was filed with the Board.
The "access" to which Ms Court refers is the provision of a note taker/support person to access the University's computer system and convey information to her. She says that in 2006, when she became a student, she was appointed a note taker/support person because of her hearing impairment. She says that that person sat next to her in class and provided her with class notes and other information about exam and assignment dates and reading material. Ms Court says that in 2010 the University declared that note takers were no longer allowed to attend class. The material was to be posted on the University's computer system called vUWS and there was to be no interaction between note takers and the students who needed them. She regards this conduct as constituting indirect discrimination.
While the scope of the complaint set out in the 30 August document is narrower than the complaint referred to the Tribunal by the President of the ADB, the University accepts the narrower complaint as the complaint Ms Court wishes to pursue. There is nothing to prevent an applicant from narrowing his or her complaint.
In the 30 August document, Ms Court stated that the complaint will be proven by:
(1) audiogram with respect to hearing loss;
(2) witnesses - Ms Edith Taylor; (an employee of the University)
(3) all computer generated communication between the University staff about the Applicant; (these documents were the subject of an application for summons to be issued)
(4) all computer generated communication between the University staff with the Applicant; (these documents were also the subject of an application for summons to be issued).
Ms Court has since decided that she will apply to summons other employees of the University, namely Kerrie Heaven and Rachel Kohl. Such an application is premature.
In her letter of 30 August 2012, Ms Court also stated that:
(1) she cannot provide a name for her condition and an audiogram is the only report on which she intends to rely to establish a disability; (In a letter received on 6 December 2012, Ms Court wrote that the name of her disability is "most likely" to be Myalgic Encephelomyelosis.)
(2) while her category within the University comes under "hearing impairment" her inability to use a computer places her more in the neuro/deaf category;
(3) she cannot use a computer and the University is discriminating against her by refusing to provide a note taker; and
(4) without the assistance of a note-taker she cannot access vUWS and is at a major disadvantage compared with other students.
On 21 September 2012 the University wrote to Ms Court asking when she would be filing the evidence that she had been directed to file by 19 September 2012. Ms Court did not respond to that request but on 27 September she wrote to the University asking them to provide details of the "admin assistant" who will be accommodating her disability in 2013.
On 19 October 2012 the University filed an application for summary dismissal. Ms Court filed submissions in response on 8 November 2012. In those submissions Ms Court refers to a letter to her from the University's solicitors dated 1 November 2012. That letter responds to correspondence from Ms Court and advises that Ms Kerri Heavens, a Disability Advisor in the University's Disability Service, is her nominated contact person. Ms Court replied to that letter saying she has previously instructed the University that if she received any communication from Ms Heavens she "would enforce the civil AVO application currently sitting at Wollongong Court."
On 21 December 2102 the Tribunal received a copy of a letter from Ms Court making two requests; a qualified "admin assistant" to enrol her in a subject in January 2013; and that the teacher of that subject be told that all information placed on vUWS including exam and assignment directions be hand delivered to her in class.
Application for summary dismissal
The basis for the University's application for summary dismissal is that the complaint is misconceived and lacking in substance, has no real prospects of success and even if proven, would not disclose a contravention of the AD Act: ADT Act s 73(5)(g)(ii) and AD Act, s 102. Those submissions are put on the following basis:
(1) Ms Court's allegation are premised on a misconceived view that the AD Act imposes a positive obligation to meet her requests on demand;
(2) there is nothing which points to Ms Court being treated less favourably than a student without her claimed disabilities;
(3) there is nothing which points to the University imposing an unreasonable requirement or condition on Ms Court;
(4) there is no evidence that a substantially higher proportion of people without her disability can comply with the requirement; and
(5) Ms Court has filed no evidence and appears to intend not to do so.
A complaint should be summarily dismissed 'with exceptional caution and only if the circumstances clearly warrant such action': Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15]. The need for caution is 'even more apparent' when, as in the present case, an application for dismissal has been made before the complainant's evidence has been adduced at the substantive hearing: Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]). The Tribunal must assume that the applicant's case can be established by the evidence. The allegations must be taken 'at their highest': Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).
Legal basis of indirect disability discrimination complaints
Ms Court's complaint of disability discrimination is made under s 49L of the AD Act which makes discrimination on the ground of disability by an educational authority, such as a University, unlawful in certain circumstances:
(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:
(a) by refusing or failing to accept his or her application for admission as a student, or
(b) in the terms on which it is prepared to admit him or her as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:
(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or
(b) by expelling him or her, or
(c) by subjecting him or her to any other detriment.
Ms Court relies only on indirect discrimination which is defined in s 49B(1)(b):
(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a). . .
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
The phrase "on the ground of" in s 49B(1)(b) does not mean that a complainant must prove that a reason for imposing the requirement was the person's disability: Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404. Section s 49B(1)(b) is to be read as if the opening words of the section provide that: "A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, ... the perpetrator:"
In order to substantiate a complaint of indirect disability discrimination in breach of s 49L, Ms Court would have to prove that:
(1) she has a disability within the meaning of that term in the AD Act;
(2) the University denied her access or limited her access to any benefit provided by the University or subjected her to any other detriment;
(3) that treatment consisted of imposing a requirement or condition on some or all students at the University including Ms Court;
(4) she cannot comply with that requirement or condition;
(5) a substantially higher proportion of people without Ms Court's disability than people with her disability can comply with the requirement or condition; and
(6) the requirement or condition is not reasonable in all the circumstances.
Ms Court bears the burden of proof in relation to each of these elements.
In order to determine whether Ms Court's complaint is misconceived, lacking in substance or does not disclose a contravention of the AD Act, I will examine each element of indirect discrimination to determine whether, if those elements are proved with evidence, a complaint of indirect disability discrimination under s 49L could be substantiated.
Identification of disability
In her complaint to the Anti-Discrimination Board, Ms Court identified her disability variously as "my mental health", "my existing hearing impairment", "number blind", "mentally ill", "suffer panic attacks" and "no working memory". Now she says that the only disability on which she intends to rely for the purpose of this complaint is her hearing impairment. She explains her reasons for that choice in submissions received on 8 November 2012 (para 67):
I have placed hearing loss as the primary disability since it was these medical reports that provided the foundation for my enrolment and scholarship. Once enrolled the University blocked anyone from outside the University in assisting me in using vUWS. Since they placed the problem at their door and then chose to resolve it by insisting on additional medical reports the responsibility is on them to explain themselves. Not on me to discuss a medical condition I did not know I had until after the UWS had demanded the reports. My enrolment was not conditional on extraneous medical reports it was purely on my hearing loss.
Ms Court goes on to explain that:
As a result of constant harassment (by the University) I eventually subjected myself to 12 hours of investigations demanded by UWS at Wollongong University, Neuropsych Department and I discovered that I am missing a step in the learning process in my brain. Whilst I would love to expand on this, I am currently in the middle of extensive tests which will continue between now and January. Its not a secret what is wrong, it is simply very rare and if I am going to waste a specialist's time and money attending the tribunal I want him to be the right specialist. For now it is enough that Dr's have written and provided UWS with the reports they requested at the time they requested them. I am deliberately restricting this complaint to the time frame that I made the complaint and not allowing UWS to have random access to anything they want. What has been provided in the past is sufficient for this matter to proceed. Once enrolled under disability services, it follows that disability legislation applies.
The University accepts that Ms Court has a hearing impairment.
Imposition of requirement or condition
The words requirement or condition "should be construed broadly so as to cover any form of qualification or prerequisite demanded" by an educational authority of its students: Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185 per Dawson J. A requirement may be inferred or implicit. It must be identified precisely and it must relate to the relationship between the educational authority and the students: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 407 per McHugh J and at 360 per Mason & Gaudron JJ; New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753 at [79].
The University suggested that Ms Court has failed to identify a requirement or condition that it has imposed on students. Ms Court appears to be claiming that the University required her to use the vUWS system to access information about enrolment, study materials, exam dates and other vital student information. The University accepts that this could be regarded as the imposition of a requirement or condition.
There is one additional element of the requirement or condition that is part of Ms Court's case. That additional element is that the vUWS computer system be accessed without assistance from another person provided by the University such as a note taker or support person. My understanding of the requirement Ms Court says that the University has imposed on students including her is that:
In order to enrol and obtain material in relation to a course, students need to access the vUWS computer system without assistance from another person that is, a note taker/support person provided by the University.
The University has not had an opportunity to say whether it agrees that it has imposed this requirement or condition. It may be that note-takers or other support people are provided to students with certain kinds of disabilities. But for the purpose of these proceedings I have assumed that Ms Court will be able to prove that such a requirement, or a similar requirement with further qualifications, has been imposed.
Inability to comply with requirement or condition
Next, Ms Court must prove that she cannot comply with that requirement or condition. A statement from Ms Court attesting to the fact that she cannot access the computer system herself will be required if the complaint proceeds, but I accept for the purpose of these proceedings, that Ms Court's case is that she cannot comply with the requirement. Contrary to Ms Court's submission, the University's concession that Ms Court cannot comply with the requirement as they characterised it, does not 'end this case'. There are two further elements of indirect discrimination that must be proved before such a complaint can be substantiated.
Proportions of people who can and cannot comply
The third element of indirect discrimination is that a substantially higher proportion of people without Ms Court's disability than people with her disability can comply with the requirement. Three issues arise:
(a) to whom is the requirement directed? (identification of base group);
(b) how should the base group be split to make the comparison? (identification of pools); and
(c) whether the rate of compliance and the degree of disparity amount to a substantially higher proportion (rate and disparity of compliance).
Generally the relevant base group is all the people to whom the requirement or condition is applied. In this case, Ms Court would have to prove that it has been applied to all students or to a specific group of students at the University. The next question is how this base group should be divided. For complaints of disability discrimination, the base group is divided between people with the complainant's disability and people without that disability.
In the absence of statistical evidence, the rate and disparity of compliance would have to be capable of being determined using common knowledge.
Ms Court cannot be expected to survey students to determine whether they can comply with the requirement and whether they have a disability like her. The likely cost of doing so is out of proportion to the amount of compensation she would be likely to receive if her complaint is substantiated. I agree with the remarks of Justice Browne-Wilkinson, as he then was, in Perera v Civil Service Commission [1982] IRLR 147 at 151-2:
. . . it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the USA has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of [the legislation] are satisfied.
The Tribunal is not bound by the rules of evidence and, subject to the rules of procedural fairness, we may inform ourselves in such manner as we think fit: Administrative Decisions Tribunal Act 1997, s 73. In addition, we can take into account matters of common knowledge.
I agree with the University that it is not self evident that a substantially higher proportion of people who do not have a hearing impairment than people who do have a hearing impairment can comply with the requirement. It is a matter of common knowledge that, generally speaking, being unable to hear does not prevent a person from accessing a computer.
If Ms Court continues to rely on her hearing impairment as the relevant disability when applying the substantially higher proportion test, she will not be able to prove this element of indirect discrimination and her complaint will fail. This conclusion makes it unnecessary to address the final element, that is whether the requirement or condition is reasonable in all the circumstances. In any case, that will be a matter for Ms Court to prove by way of evidence.
Ms Court's complaint of indirect disability discrimination, based on a hearing impairment, is misconceived. Unless the legal character of the complaint is changed, it should be summarily dismissed.
Complaint of victimisation
Ms Court also complains of victimisation. Section 50 provides that:
(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,
I agree with the Tribunal's approach in a previous case that
. . .the Tribunal will ask whether an applicant did or was suspected of doing one of the acts in s50(1), and whether the respondent did anything which caused detriment to the applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did respondent do that thing on the ground that the applicant did or was suspected of doing one of the acts in s50(1)?: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [235].
Ms Court is not relying on the victimisation complaint as referred by the President of the Board. She has re-cast her victimisation complaint as a complaint that between 2010 and 2012 the University refused to assist her to enrol in subjects and/or sit exams or obtain material from the computer with full knowledge that she could not do so without assistance. In particular she says that she was denied the right to be enrolled as a student after a complaint was filed with the Anti-Discrimination Board.
For the purposes of the summary dismissal application, I accept that the University was advised of the complaint to the Board on 9 May 2011. Any detriment resulting from having made that complaint must have occurred after that date.
The Board only accepted Ms Court's complaint of victimisation for the period 28 September 2010 to 27 September 2011. Consequently, subject to any successful amendment of her complaint, any detriment must have occurred between 9 May 2011 and 27 September 2011. The University has asserted that Ms Court has failed to identify the detriment to which she was subjected during that time. In addition, the University submits that Ms Court has failed to adduce any evidence to support a finding that the real, genuine or true reason for any alleged detriment was that she complained to the Anti-Discrimination Board.
Ms Court's response to the University's submission was that:
This complaint is additional to the matter but for expediency I am happy for it to be added to this hearing since the matters are ongoing and identical in all forms.
Assuming that Ms Court was successful in any application to amend her complaint, to substantiate it, she would have to prove that:
(1) the University has denied her the right to be enrolled as a student and failed to assist her to access the computer system between 9 May and 27 September 2011; and
(2) the University engaged in that conduct because she lodged a complaint of discrimination with the Anti-Discrimination Board on 9 May.
The conduct in refusing to assist her to access the computer system cannot have been because she lodged a complaint. That conduct preceded the lodging of the complaint. Furthermore, since the allegation of being denied the right to be enrolled as a student only arose because of her inability to access the computer, it is difficult to see how it can have been as a result of her complaint to the Board.
The victimisation complaint, as presently expressed, is bound to fail and should be dismissed.
Failure to file evidence
The University submits that Ms Court has been directed to file evidence but has failed to do so. Furthermore, it is not clear from her correspondence that she intends to do so. If Ms Court does not intend to file any evidence, the University says it will not understand the claim it has to meet.
An application for summary dismissal is often made before the complainant has filed his or her evidence. In this case, it is not the lack of evidence that justifies Ms Court's complaint being summarily dismissed. It is the fact that Ms Court has not characterised her complaints in a way which, even if proved by evidence, would amount to a breach of the AD Act. She says that her case is simple. "I am hearing impaired, UWS refuses to provide access to my study material outside of a computer which I cannot use." As I have endeavoured to explain, it is not that simple.
Regardless of the evidence Ms Court may be able to adduce, while she relies on her hearing impairment alone, her complaint of indirect disability discrimination is bound to fail. She has chosen not to rely on medical reports which may suggest other reasons for her inability to access a computer. She has not identified a complaint of victimisation which could be substantiated even if she adduced evidence to support her allegations.
Conclusion
Although Ms Court's complaints as presently presented cannot succeed, I am not satisfied that they should be summarily dismissed at this stage. Ms Court has no legal representation. She is attempting to represent herself. That s not an easy task given the complexity of the AD Act . I agree with the Tribunal's comments in Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]:
The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us. It has been difficult to determine the extent to which the Tribunal should assist the applicant to identify an arguable case by presenting some of his allegations in such a way that they constitute allegations of contraventions of the Act which can be understood and answered by the respondents, as well as fairly tried by the Tribunal.
I will give Ms Court an opportunity to re-draft her complaints of indirect disability discrimination and victimisation in a way which, if proved, could constitute a breach of the AD Act. I am hopeful that the description of the elements of indirect discrimination and victimisation set out in these reasons will assist her to characterise her complaints.
I make the following directions:
(1) By 1 March 2013, Ms Court is to file and serve a Points of Claim document setting out the legal basis for a complaint of indirect disability discrimination and any complaint of victimisation which accords with these reasons;
(2) If Ms Court fails to file and serve Points of Claim without reasonable excuse by 1 March 2013, the complaint will be dismissed on 2 March 2013;
(3) If Ms Court files and serves Points of Claim by 1 March 2013, the matter will be listed for a case conference at 2.30 pm on 6 March 2013.
If Ms Court does not wish to comply with these directions, she should withdraw her complaint so that the University does not incur any additional unnecessary costs.
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Decision last updated: 25 January 2013
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