DVA v University of Sydney

[2019] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVA v University of Sydney [2019] NSWCATAD 59
Hearing dates:	5 February 2019
Date of orders:	15 April 2019
Decision date:	15 April 2019
Before:	S Scahill Senior Member
Decision:	Application dismissed under section 55(1)(d) of the Civil and Administrative Appeals Tribunal Act 2013, for want of prosecution
Catchwords:	Application for leave to proceed; dismissal for want of prosecution
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCCA 388 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Roberts v Nursing and Midwifery Board of Australia [2016] NSWCATOD 129 Stollznow v Calvert [1980] 2 NSWLR 749 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
Category:	Procedural and other rulings
Parties:	DVA (Applicant) University of Sydney (Respondent)
Representation:	Solicitors: Ms Sarah Heesom (Respondent)
File Number(s):	2018/00325806
Publication restriction:	The Tribunal orders under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the Applicant’s name and the name of any staff member of the University of Sydney be prohibited.

REASONS FOR DECISION

Orders under Section 64 of the Civil and Administrative Tribunal Act 2013

1. At the hearing of the Application on 5 February 2019, the Tribunal made orders under section 64(1)(a) of the Civil and Administrative Tribunal Act2013 set out below, prohibiting the publication of the Applicant’s name and the name of any staff member of the University of Sydney. Accordingly, these reasons refer to the Applicant and staff members of the Respondent in anonymised terms.

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

2. The Tribunal made this order by reason of the confidential nature of the information relating to an alleged sexual assault. The factual matters alleged in the complaint were denied by the Respondent. The complaint had been declined by the President of the Anti-Discrimination Board. The allegations of sexual assault and discrimination had not been tested. In these circumstances the Tribunal determined that in the interests of procedural fairness, the individuals involved in the allegations should not be identified.

3. The parties consented to the orders.

Background to the Application

4. This is an application by DVA for leave to proceed with a complaint of race and sex discrimination and victimisation in the area of education against the University of Sydney.

5. DVA made the complaint to the Anti-Discrimination Board (ADB) on 10 July 2018. The complaint was declined by the President of the ADB on 4 October 2018 as lacking in substance. DVA wrote to the President of the ADB on 5 October 2018 requesting that the matter be referred to the NSW Civil and Administrative Tribunal for a hearing. In those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (NSW) for the matter to proceed in the Tribunal.

Principles for Granting Leave

6. The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said:

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

7. When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Anti-Discrimination Act1977 including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60].

8. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

Factual basis of complaint

9. DVA made her complaint to the Anti-Discrimination Board on 10 July 2018. The complaint was accepted and investigated in relation to events that were alleged to have occurred between 1 March 2017 and 10 July 2018.

10. In summary DVA alleged that:

• She is indigenous and at the time of complaint was a student at the University of Sydney.

• On or about 13 March 2017 DVA made a verbal complaint to the Deputy Vice Chancellor Indigenous Strategy and Services that she had been sexually assaulted by another staff member who was a colleague of and supervised by the Deputy Vice Chancellor Indigenous Strategy.

• Between May and October 2017, the University instigated disciplinary proceedings against DVA. On 1 December 2017 an independent investigator found that the allegations against DVA were substantiated and recommended her exclusion from “the designated shared space for staff and students of the indigenous strategy services”, the main area being the Old Teachers College. DVA appealed against these findings but was unsuccessful.

11. The Tribunal understood that DVA’s concerns were that she had been discriminated against on the grounds of her sex in that the University had failed to investigate adequately her complaints of sexual assault against a staff member.

12. DVA considered she had been discriminated against on the grounds of her race because the University had made a decision which impacted heavily upon her on the grounds of her race because she was unable to access some of the indigenous designated spaces within the University.

13. DVA alleged that the disciplinary proceedings continued because she had made complaints to the University of sex discrimination. This constituted victimisation for the making of the complaints.

The University’s response

14. The University denied having failed to take action in relation to the allegations of sexual assault. The University also stated that even if the allegations about the University’s response had been true, they would not have amounted to sex discrimination under the Anti-Discrimination Act1977.

15. The University denied victimising DVA for making the complaint of sex discrimination. The University maintained that the disciplinary proceedings instigated against DVA were not the result of the complaints made by her to the University. The disciplinary proceedings were as a result of an investigation into allegations of inappropriate conduct on DVA’s part. The allegations were made by individuals who were not the subject of any of DVA’s complaints. Some of the matters investigated against DVA pre-dated DVA’s first complaint on 1 May 2017.

16. The University denied that it had discriminated against DVA on the grounds of her race. The findings of misconduct were upheld after DVA’s appeal. DVA’s exclusion from designated shared spaces for staff and students of Indigenous Strategy and Services did not constitute discrimination on the grounds of DVA’s race. Any exclusion was in response to the findings of misconduct against her, some of which occurred in these spaces. It was also imposed to protect the health and safety of students and staff.

The Tribunal’s Hearing

17. The matter was listed for hearing on 13 November 2018 and again on 11 December 2018 – but did not proceed. DVA did not attend the Tribunal on 11 December 2018.

18. The Respondent filed submissions opposing the granting of leave to proceed to DVA on 13 November 2018.

19. The matter was listed for hearing before the Tribunal on 5 February 2019. DVA told the Tribunal she did not wish to proceed on the day but did not wish to withdraw her application. The Tribunal set a timetable for the filing of written submissions by both parties.

20. DVA, the Applicant was to file and serve submissions setting out the reasons leave should be granted by 5 March 2019.The Respondent was to file its own submissions in reply by 19 March 2019. The Applicant was to file any reply by 2 April 2019.

21. DVA did not provide submissions to the Tribunal supporting her application for leave.

22. The Respondent wrote to the Tribunal on 18 March 2019 advising that it had not received submissions from DVA. The Respondent advised that it had written to the Applicant on 11 March 2019 advising that it would consent to the extension of the timetable to enable the Applicant to file her submissions. The Respondent advised that it had no response from the Applicant.

23. The Respondent sought to have the matter dismissed for want of prosecution under section 55(1)(d) of the Civil and Administrative Tribunal Act 2013.

24. In the alternative the Respondent submitted that the Tribunal should determine the application for leave on the basis of the material before the Tribunal – that is the President’s Report and the Respondent’s written submissions.

25. The Tribunal wrote to the parties on 29 March 2019 advising that it had not received submissions from DVA and that it would proceed to determine the matter after the expiry of the set timetable. There was no response to this letter.

Provisions for dismissal of applications under the Civil and Administrative Tribunal Act 2013

26. Section 55 of the CAT Act provides for dismissal of applications as follows:

27. Section 55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

28. In the matter of Roberts v Nursing and Midwifery Board of Australia [2016] NSWCATOD 129 at [40] the Tribunal considered an application by the Respondent to dismiss proceedings for want of prosecution under section 55(1)(d) where the Applicant had failed to file materials and had failed to appear at hearings.

29. The Tribunal noted at [40]:

The decision to dismiss proceedings for want of prosecution is discretionary: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 per Heydon JA [51]. In judicial proceedings the question has been framed as “whether or not on balance justice demands that the action should be dismissed”: Stollznow v Calvert [1980] 2 NSWLR 749, per Moffitt P at 751–2, citing Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 per Walsh J at 412.

30. The Tribunal in Roberts noted that the Tribunal is required by the CAT Act to be both fair and efficient in the conduct of proceedings.

31. Section 38(5) of the CAT Act requires the Tribunal to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

32. The Tribunal is very mindful of the difficulties faced by unrepresented litigants in this jurisdiction, and of the significance of complaints of unlawful discrimination to the dignity and rights of a complainant. While the Tribunal can accommodate self-represented litigants through flexible procedures, including lesser formality, allowances for delay, and care in explaining processes; it cannot make a party’s case for them.

33. The Tribunal is satisfied that DVA has been accorded procedural fairness in her dealings with the Tribunal. DVA has also been afforded opportunities to put her case both orally and in writing.

34. Balancing the Applicant’s important interest in the matter and her position as an unrepresented litigant against the efficient management of cases in this jurisdiction, the interests of justice require that the matter now be terminated.

35. There has been a want of prosecution of the proceedings by the Applicant within the meaning of s 55(1)(d) of the CAT Act and the application for leave to proceed is dismissed.

Decision

36. In all the circumstances the application for leave is dismissed for want of prosecution by the Applicant under section 55(1)(d).

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 April 2019