Frost v TAFE NSW

[2019] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Frost v TAFE NSW [2019] NSWCATAD 62

Hearing dates:

On the papers

Date of orders:

18 March 2019

Decision date:

15 April 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member

Decision:

1.The time for compliance with Order 3 made by the Tribunal on 15 January 2019 is extended
to 25 March 2019.

 

2. The time for compliance with Order 4 made by the Tribunal on 15 January 2019 is extended
to 2 April 2019.

 

3. The matters remains listed for directions on 26 March 2019 at 2 pm.

 

4. The following parts of the Amended Points Of Claim filed by the applicant on 8 October 2018 is struck out:

 

a) Part 9 in the “Pleadings index”: “VARIOUS MISCELLANEOUS CONDUCT- PHYSICAL
ASSAULT BY ULTIMO TEACHER AS CONSEQUENCE OF SECRET WHS WARNINGS BY
NAWAL SILFANI TO VILIFY AND CREATE A MOBBING OF THE APPLICANT”.

 

b) The words “Ms Nawal Silfani (Ms Silfani)” in paragraph [2.2] in Part 2.

 

c) Under the heading “THE AGGRESSIVE CONDUCT DIRECTED AT THE APPLICANT BY STAFF OF TAFE AS A RESULT OF HAVING MADE THE COMPLAINT” the words :
i. “Ms Silfani” from paragraph [1.3].
ii. “Ultimo TAFE campus” from paragraph [1.4].
iii. All of sub-paragraph [1.5(e)] that is “sustained aggressive and belitting conduct by Ms Silfani and subordinates she direct in relation to punitive, administrative, information and complaint handling services”.

 

d) The words “refusal to make reasonable adjustments” from paragraph [4.3].

 

e) The words “were required to treat students in the Outreach Course with greater care and as a high priority and to treat every student in the class with extra care and consideration, but “from paragraph [5.12].

 

f) The words “Where proactive adjustments are the standard for the Outreach Course (whether or not standard for every course of an education provider where the adjustments are reasonable)” from paragraph [5.13].

 

g) The entirety of the section under the heading “PATTERN OF REFUSAL TO PROVIDE
REASONS AND EVIDENCE FOR PUNITIVE ACTION” that is paragraph [5.14] to [5.23] inclusive.

 

h) All of sub-paragraph [7.2(h)].

 

i) All of paragraph [7.4].

 

j) The words “including in a subsequent ‘PPIPA release’ “ from paragraph [8.2].

 

k) All of paragraphs [8.14] and [8.15].

 

l) All of Part 9.

 

m) The words “breaches of agreed disability adjustments” and “except by payment and
formal GIPA Act application which, while several were made, all were deemed invalid by Ms Silfani and subordinates due to reasons artificially created by their discretion and which were irregular requirements that TAFE staff did not give the applicant necessary notice of in order to comply with their GIPA Act and other legal obligations to proactively facilitate information access, and lastly notices of refusal to process the PPIPA or GIPA applications were not sent to Ms Frost for several months or not sent at all. Documents purporting otherwise were fraudulently manufactured by the respondent for the Information Privacy Commission after Ms Frost filed complaints” from paragraph [10.2].

 

n) All of paragraphs [10.4], [10.5],[10.6], [10.8].

 

o) The words “The adjustments in 10.8 were violated the next day and” in paragraph [10.9].

 

p) The words namely “Ms Silfani and the subordinates she directs” in paragraph [10.18].

 5. Further Amended Points of Claim filed by the applicant on 6 February 2019 is struck out.

Catchwords:

Practice and procedure – pleading -strike out points of claim in part

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44

Category:

Procedural and other rulings

Parties:

Julie Frost (applicant)
TAFE NSW (respondent)

Representation:

In person (applicant)
Minter Ellison (respondent)

File Number(s):

2018/00161029

REASONS FOR DECISION

1. In October 2017, Julie Frost made a complaint about TAFE NSW to the President of the Anti-Discrimination Board (the Board), alleging she had been discriminated against in the area of education on the ground of disability (the Complaint). After investigating that Complaint, the President referred it to NCAT for determination under s 93 of the Anti-Discrimination Act 1977 (NSW) (the Act).

2. Between October 2018 and February 2019, the parties have been in dispute about a number of matters, including the scope of the Complaint. In short, TAFE asserts that Ms Frost is seeking to use points of claim filed in these proceedings as a vehicle to impermissibly broaden the scope of the Complaint. Ms Frost, on the other hand, alleges that TAFE is seeking to restrict the scope of the Complaint to conceal from the Tribunal unfavourable material that supports her contention that TAFE has unlawfully discriminated against her.

3. On 14 Februray 2019, TAFE made an application to NCAT seeking various orders about the points of claim filed by Ms Frost. On 18 March 2019, I made a decision striking out parts of the Points of Claim filed by Ms Frost.

4. Ms Frost sought written reasons for that decision. These are the reasons in answer to that request.

Background to the amended points of claim

5. To put the decision in context it is necessary to set out some background facts.

6. On 4 May 2017, Ms Frost commenced the Introduction to Beauty Statement of Attainment course at TAFE’s Hunter campus. TAFE alleges, and Ms Frost denies, that during class Ms Frost was “involved in numerous incidents in which she displayed disruptive behaviour, defiance and derogatory behaviour towards staff and students”. An investigation conducted by a manager of the Hunter campus found Ms Frost had engaged in offensive conduct with staff and students. Among other things, Ms Frost claims that the investigation process was flawed and that she was denied procedural fairness. She claims that she “quit” after being suspended from the course. TAFE claims that Ms Frost voluntarily withdrew from the course.

7. On 1 May 2017, Ms Frost enrolled at TAFE’s Kingscliff campus in Certificate III in Make-up and Certificate III in Fitness. Ms Frost attended class between 19 July 2017 and 2 August 2017. TAFE alleges, and Ms Frost denies, that throughout that period Ms Frost displayed disruptive behaviour towards staff and students.

8. Ms Frost alleges that TAFE refused to allow her to bring her “therapy dog” to campus; she was bullied and harassed by staff and students alike and locked out of class. She contends that the reason for this mistreatment was her disability. (At a hearing in NCAT on 26 September 2018, Ms Frost identified the relevant disability as being depression and anxiety (actual disability) and mental illness (presumed disability).)

9. On 8 August 2017, TAFE notified Ms Frost that it had decided to conduct an investigation into the allegations made by staff and students about her conduct and to exclude her from campus while that investigation was underway.

10. On 21 September 2017, the Regional Director of TAFE NSW wrote to Ms Frost, advising that the investigation found proven the allegations of aggressive and bullying conduct by her towards staff and students. In addition, the Director notified Ms Frost of the decision to exclude her from NSW TAFE until 31 December 2017.

11. Ms Frost responded by denying the allegations of aggressive and bullying conduct and asserting that she had yet again been denied procedural fairness by TAFE in the conduct of its investigation. Over the following months, Ms Frost made a series of allegations about TAFE and its staff, including that TAFE had breached its policies on student discipline. In addition, she requested that TAFE disclose the material on which its findings of “aggressive and bullying conduct” were based.

12. In a complaint made to the Board on 15 October 2017, Ms Frost claimed that:

• she had been expelled from Hunter TAFE “without reasons or evidence”, and this was the second time “staff banded together to make false allegations about me”;

• teachers had been prying into the nature of her disability;

• she was told she could not have a therapy dog on campus;

• a teacher locked her out of the classroom and told students she had a mental illness and to lodge a complaint about her. When finally readmitted into the classroom, she was tricked by the teacher into signing a document, which she thought was the attendance roll. This was the document which the Manager claimed indicated that she had agreed to withdraw from the Hunter course;

• she quit from the Hunter course because she was suspended;

• the instigators of her suspension at the Hunter campus organised for the same thing to happen at Kingscliff. This was clear because the teachers were initially friendly but “suddenly treated me differently … there was a type of smear campaign stigmatising me…”;

• she complained to TAFE’s equity officer who apologised and assured her that she would make sure the “teachers stopped harassing me based on [my] disability”;

• she was uncomfortable that people were “nosey and thought she was a freak”;

• she was “vaguely told” that there had been a complaint that she was aggressive and would be “labelled a violent offender”;

• TAFE refused to put that allegation in writing or to allow her to bring a support person when called in to a meeting with the head teacher;

• she was suspended for refusing to go to the head teacher’s office;

• on her final day at TAFE a dozen members of staff came into her class and pointed her out … “it was obvious they had a pack mentality to attack me…”.

13. In the course of the Board’s investigation into the Complaint, Ms Frost made additional allegations about her alleged mistreatment by TAFE staff and students.

14. After lodging the complaint with the Board, Ms Frost made a request to TAFE for various documents under the Government Information (Public Access) Act 2009 (NSW). Apparently, TAFE has refused this request in part.

Referral of complaint to NCAT

15. At a case conference on 13 June 2018, the Tribunal (differently constituted) directed Ms Frost to file and serve points of claim by 8 August 2018. In addition, the Tribunal referred Ms Frost to the Legal Assistance Referral Scheme for assistance with drafting her points of claim and clarifying the orders sought.

16. On 8 August 2018, the Tribunal I extended the time for Ms Frost to file and serve her points of claim. A further extension was granted on 6 September 2018 by the Tribunal (differently constituted).

17. At a hearing on 26 September 2018, I determined a series of interlocutory applications made by both parties. These included an application made by Ms Frost to amend the Complaint to include a complaint of discrimination on the ground of sex and an application made by TAFE to strike out parts of the Points of Claim filed by Ms Frost on 11 September 2018, asserting that they raised matters that fell outside the scope of the Complaint. On 26 September 2018, I made a number of rulings about the Points of Claim and directed Ms Frost to incorporate those rulings into a revised version of the Points of Claim. On 8 October 2018, in answer to that direction, Ms Frost filed amended Points of Claim (the Amended Points of Claim).

18. On 12 December 2018, TAFE wrote to Ms Frost raising a number of concerns about the 600 pages of documents served by Ms Frost. In addition, TAFE asserted that the Amended Points of Claim did not reflect the rulings made by the Tribunal on 26 September 2018 and included a number of additional matters that fell outside the scope of the Complaint. In that letter, TAFE detailed a number of alleged defects with the Amended Points of Claim and invited Ms Frost to submit a revised version of the document.

19. On 18 December 2018, TAFE made a further interlocutory application, seeking, among other things, an order that Ms Frost be required to prepare a further Points of Claim.

20. At a directions hearing on 15 January 2019, I ordered Ms Frost to provide revised points of claim if she accepted the assertions made by TAFE in its letter of 12 December 2018, namely, that the Points of Claim were defective in the manner asserted. (The directions made on 15 January 2019 mistakenly refer to the letter from TAFE to Ms Frost being dated 14 January 2019. The letter to Ms Frost of 12 December 2018 was included in a bundle of documents filed by TAFE on 14 January 2019.)

21. On 6 February 2019, Ms Frost filed further amended Points of Claim (the Further Amended Points of Claim), which among other things, identified an additional 14 “respondents”, including the Director of Primary Industries, and made a number of additional claims.

22. On 14 February 2019, TAFE made a further application to NCAT seeking orders that the Further Amended Points of Claim be struck out and that Ms Frost be required to file and serve revised Points of Claim reflecting the objections it outlined in its letter to Ms Frost of 1 Februray 2019. (That letter reiterated the issues TAFE raised in its letter to Ms Frost of 12 December 2018.)

23. On 25 February 2019, I directed the parties to provide brief written submissions in response to the application made by TAFE on 14 February 2019. In addition, I invited the parties to comment on whether that application could be determined on the papers without holding a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

24. In detailed submissions filed on 28 Februray 2019, in answer to the directions made on 25 February 2019, Ms Frost submitted among other things that no order had been made to restrict the Points of Claim to the original complaint made to the Board. She acknowledged that the Tribunal had refused her request to amend the Complaint to include allegations of discrimination on the ground of sex, and to extend its temporal scope beyond 16 October 2017. She asserted, however, that the Tribunal had not ruled that she was unable to make a claim alleging “harassment using GIPA” prior to 16 October 2017. She asserted that TAFE’s lawyers were seeking to take advantage of the fact that she was not represented, and that she was being “unduly harassed with incessant breaches of legal profession and barrister rules and model litigant laws”. She asserts that it would be an injustice if she was required to revert to the Amended Points of Claim because the Further Amended Points of Claim reflects “what happened”. She stated that it was only fair that she be permitted to add additional respondents because she has always claimed that there were “multiple attackers, multiple methods of attack meant to be covert and appear to be unrelated coincidences and legitimate management or official actions”.

25. In her submission, Ms Frost also requested that the Tribunal revisit its decision not to make a suppression order in respect of her name and to refuse her application for summons.

26. TAFE pointed out that on 15 January 2019 they had not invited Ms Frost to file a further points of claim, but rather had invited her to respond to its assertion that the Amended Points of Claim did not reflect the rulings made by the Tribunal about the scope of the Complaint.

Hearing on the papers

27. TAFE consented to the application made on 14 February 2019 being determined on the papers.

28. Ms Frost stated that it would not be her preference to have a hearing on the papers because of her fear of “subconscious bias” and, by default, the application will be determined “to favour the government lawyers”. She went on to state that she would not attend a hearing because it would be stressful.

29. I decided, despite Ms Frost’s objection, to deal with the matters on the papers. I was satisfied that the application could be adequately determined by considering the parties’ written submissions: s 50 of the NCAT Act. In adopting this approach, I also took into account my assessment that it would be unlikely that an oral hearing would cast further clarity on the issues to be determined.

Consideration

30. I decided to strike out the Further Amended Points of Claim. As TAFE points out, on 15 January 2019 I directed Ms Frost to address the assertions made by TAFE in its letter of 12 December 2018 that the Amended Points of Claim were defective in that they did not incorporate the rulings I had made on 26 September 2018. The Further Amended Points of Claim did not address this issue but instead sought to materially broaden the scope of matters to be determined. 

31. In the decision made on 26 September 2018, I ruled that parts of the Points of Claim be rejected because it included claims that fell outside the scope of Complaint. In addition, I rejected some of the assertions made by TAFE about various parts of the Points of Claim falling outside the scope of the Complaint - for example, the assertion that the claim of unlawful victimisation fell outside scope.

32. The Amended Points of Claim incorporate some but not all of the rulings I made on 26 September 2018. To the extent that the Amended Points of Claim do not comply with those rulings, I have decided to disallow those claims. On the material provided by the parties to date, I am not persuaded that it would be in the interests of justice to revisit these rulings.  

33. On reviewing the orders made on 18 March 2019, it is apparent that they contain an “obvious error”, namely an accidental slip or omission. The error is twofold. First, order 4, which strikes out part of the Points of Claim, mistakenly refers to the “Further Amended Points of Claim” - that is, the version filed by Ms Frost on 6 Februray 2019. As is apparent from a reading of that document, together with the terms of the Order, Order 4, was intended to refer to the Amended Points of Claim filed on 8 October 2018. I have decided to exercise the power conferred by s 63 of the NCAT Act to alter the text of the notice of the decision issued to the parties on 18 March 2019, by:

1. Deleting from Order 4 the words, “Further Amended Points of Claim filed by the applicant on 6 Februray 2018” and substituting with the words “Amended Points of Claim filed by the applicant on 8 October 2018”.

2. Inserting as Order 5, “The Further Amended Points of Claim filed by the applicant on 6 Februray 2019 is struckout.”

34. The coversheet of these reasons for decision contains the altered orders.

Issues to be determined in the Complaint

35. As is apparent, this matter has a long procedural history. Self-evidently, significant resources of both the Tribunal and the parties have been expended on interlocutory wrangling.

36. While not a tribunal of “strict pleading”, sometimes points of claim and points of defence can serve to narrow and refine the issues in dispute and enable the parties and the Tribunal to focus on the real issues in these proceedings. Regretfully, this is not such a case.

37. Consistent with my obligation to take such measures as are reasonably practicable to ensure that the parties understand the nature of the proceedings, and to assist the parties to focus on the central issues to be determined, I set out below the key issues which the Tribunal will be required to address when determining the Complaint.

38. The Complaint was cast by the President as a complaint of unlawful discrimination in the area of education. Section 49L of the Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability:

49L EDUCATION

(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.

39. Section 49B of the Act defines discrimination on the ground of disability to mean:

WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(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 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.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

40. Disability is defined in ss 4 and 49A of the Act and includes a presumed disability that is, a disability that a person is thought to have (whether or not the person in fact has the disability): s 49A(b).

41. To substantiate the Complaint, it will be necessary for Ms Frost to first establish that:

1. some or all of the alleged conduct occurred; and

2. any proven conduct fell within s 49L of the Act. For example, that the proven conduct subjected Ms Frost to a detriment: s 49L(2)(c).

42. If the answer to each question is yes, it will be necessary to establish that the conduct amounts to discrimination within the meaning of s 49B(1)(a) of the Act (direct discrimination) and /or s 49B(1)(b) of the Act (indirect discrimination).

43. To establish direct discrimination, Ms Frost must establish that any proven conduct which falls within s 49L:

(1)   Constitutes less “favourable treatment”, that TAFE treated her less favourably in the same circumstances or circumstances that were not materially different than it treated, or would have treated a student without her disability, actual or presumed (less favourable treatment).

(2)   If so, one of the reasons for any less favourable treatment was her disability.

44. My understanding, is that Ms Frost casts the Complaint as one of direct discrimination. If I am wrong and the claim is also cast as indirect discrimination, Ms Frost must establish that:

(1)   TAFE imposed a requirement or condition; and

(2)   Ms Frost was unable to comply with that requirement or condition; and

(3)   A substantially higher proportion of students without her disability comply or are able to comply with that requirement or condition; and

(4)   The requirement or condition was not reasonable having regard to the circumstances of the case.

45. If cast as indirect discrimination, Ms Frost will need to notify TAFE and the Tribunal in advance of the hearing, of the requirement or condition she alleges that TAFE imposed and she was unable to comply with. With respect to the conduct claimed to amount to victimisation under s 50 of the Act, Ms Frost must establish:

1)   TAFE subjected her to a detriment, and

(2) That TAFE did so “on the ground” that Ms Frost had done one or more of the things listed in par. (a),(b),(c) and/or (d) of s 50(1), or suspected that Ms Frost had done, or intended to do, any of those things.

46. Ms Frost will need to notify TAFE and the Tribunal in advance of the hearing, of the claimed “detriment”, namely “loss, damage or injury” that is “real and not trivial”: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]. In addition, she must identify the thing she did or was suspected to have done which caused TAFE to subject her to a detriment, that is: brought proceedings against TAFE or any other person under this Act; alleged that TAFE 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 otherwise done anything under or by reference to the Act in relation to TAFE or any other person: see par. (a),(b),(c) and/or (d) of s 50(1).

Case management

47. In determining the Complaint, the Tribunal is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4) of the NCAT Act.

48. The guiding principle for the Tribunal is to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”: s 36(1) of the NCAT Act.

49. In my view, in light of the statutory instruction to have regards to the substantial merits of the case, the guiding principle, and the procedural history to date, no useful purpose would be served by either party making further applications about points of claim and associated issues. While as TAFE points out the Amended Points of Claim (as amended by the Tribunal), is not a document of perfection, it is nonetheless adequate to identify the conduct Ms Frost claims to constitute a contravention of the Act.

50. Noting that Ms Frost is self-represented, TAFE should proceed on the basis that if any conduct squarely raised in the Complaint has been omitted from the Amended Points of Claim, it will not necessarily be excluded from the matters the Tribunal will take into account in determining whether some or all of the Complaint is proven.

51. The matter must proceed to hearing as soon as possible. I request both parties to exercise restraint in making further interlocutory applications and to assist the Tribunal to discharge its statutory role of determining the merits of the Complaint. The parties should be prepared to take hearing dates at the direction hearing listed on 7 May 2019.

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

Registrar

Decision last updated: 29 July 2019