GKY v University of NSW (No 2)

[2024] NSWCATAD 312

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GKY v University of NSW (No 2) [2024] NSWCATAD 312

Hearing dates:

21 October 2024

Date of orders:

25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

Application for a stay or interim order made on 30 September 2024 is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – race – victimisation – in education

CIVIL PROCEDURE – interlocutory application – stay – to preserve status quo between the parties to the complaint.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57.

Dhillon v Rail Corporation of NSW EOD [2009] NSWADTAP 63

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

GKY (Applicant)
University of New South Wales (Respondent)

Representation:

Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

2024/00113296

Publication restriction:

With the exception of expert witnesses and officers of the respondent, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013

REASONS FOR DECISION

1. On 27 October 2023 the applicant lodged a complaint with the Anti-Discrimination Board of New South Wales (ADB) alleging discrimination in education and the provision of goods and services on the grounds of race and victimisation. On 30 September 2024 The applicant made an application for a stay or interim order (“the Application”) pursuant to section 105(1)(a) of the Anti-Discrimination Act 1977 (“the Act”). On 1 October 2024, I made orders for the parties to file and evidence and submissions and set the matter down for hearing on 21 October 2024.

2. The Application sets out two orders sought by the applicant: The first order was that the respondent be prevented from unlawfully terminating her candidature in the 1273 Creative Practice Program in the School of Arts And Media.

3. The second order sought that the applicant be returned to the circumstances she was in before the alleged contraventions of the Act; that is, enrolment in the Commonwealth Research Training Program (“RTP”) that the respondent immediately give her access to full benefits of the paid sick leave entitlements which is 60 working days, pays her $6 194.63 and that the respondent grants her an extension of her program leave and research training program scholarship.

4. The ground for the application is that the respondent has placed her on an enforced program leave since December 2022. As such she is prevented from re-enrolling in her PhD candidature which is funded by the Commonwealth. She is unable to access her RTP scholarship and its entitlements including paid sick leave.

The evidence and submissions before the Tribunal

5. The facts, as stated in a previous interlocutory decision regarding this application “is that the applicant is a PhD student. She commenced in the Creative Practice Program in the School of Arts and Media as a “Top-Ranked Candidate” with a scholarship and an award. She is a Goan Australian. Her claim is that the respondent through numerous staff, made her comply with policies and procedures in a punitive and discriminatory manner which her Anglo-European peers did not have to comply with. She made numerous internal complaints about this conduct.”

6. The applicant relied on numerous documents and submissions.

7. The respondent relied on the witness statement of Professor Johathan Morris dated 11 October 2024 (with numerous attachments) and submissions. Prof Morrison is a Pro Vice Chancellor of Research Training and the Dean of Graduate Research School.

8. As to the first order sought: The applicant accepted that the respondent was not considering terminating her candidature in the 1273 Creative Practice Program in the School of Arts And Media but would prefer the Tribunal to make an order in any event.

9. In regard to the second order sought. The applicant contended that she was entitled to full benefits of the paid sick leave entitlements which is 60 working days because she was enrolled in her PhD candidature, she had adequate supervision and she had made numerous attempts to re-enrol but was prevented from the respondent from doing so.

10. The respondent submitted that the applicant was not entitled to the paid sick leave entitlements as the applicant was not in receipt of the research training program stipend.

11. Reliance was placed on Prof Morris’s statement that scholarship payments like sick leave are unavailable during program leave. Prof Morris referred to the Higher Degree Research Scholarship Procedure and the Commonwealth Scholarship Guidelines. These documents are relied on to assert that the applicant is not entitled to sick leave while she is on program leave.

12. Mr Morris also stated that the applicant does not have supervision. The applicant is of the view that she does have supervision or that her entitlement to the sick leave does not depend on her having supervision.

13. The Higher Degree Research Scholarship Procedure stated in Part 1 that “higher degree research (HDR) scholarships provide financial assistance to recipients while they are enrolled at UNSW for the purpose of conducting research for their higher degree.”

14. Commonwealth Scholarships Guidelines (Research) 2017 were made pursuant to ss 238 -10 of the Higher Education Support Act 2003 (Cth) (“CS Guidelines”)

15. Clause 1.6.19(1) of the CS Guidelines state that:

Students are entitled to receive up to 20 working days’ paid parental leave and 10 working days’ paid sick leave for each year of the RTP Stipend. These leave entitlements may be accrued over the life of the RTP Stipend but will be forfeited when their RTP stipend is terminated.

16. RTP Stipend is defined as “a type of RTP Scholarship to assist students with general living costs.”

17. The respondent submitted that leave is only available to students while they are undertaking the higher degree by research program.

Consideration

18. Section 105 of the Act permits the Tribunal to make an interim order after a complaint has been made to the ADB. Pursuant to s105(1) it may do so:

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,

pending determination of the matter the subject of the complaint. “to preserve the status quo between the parties to the complaint”

19. In this case, the claim is in regard to the education relationship between the parties and the applicant’s entitlements. The applicant relies on s105(1)(a), (b) and (c) of the Act.

20. Principles applicable to interim orders in Courts and other Tribunals are applicable to this Tribunal. These principles were stated by the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57. Gummow and Hayne JJ said at [65]:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) 118 CLR 618 at 620]. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622]:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

21. In Dhillon v Rail Corporation of NSW EOD [2009] NSWADTAP 63, the Appeal Panel stated at [13] that “The granting of interlocutory relief … should generally be the minimum relief necessary to do justice between the parties.”[14].

22. In this case the respondent is not attempting to terminate the applicant’s enrolment and the applicant’s claim is unwarranted. There is no prima facie case to support the applicant’s unfounded claim that the respondent is attempting to terminate her candidature.

23. In regard to the second claim, it is a matter of significant factual and legal dispute. It is one of the claims made by the applicant that will be subject to resolution at the final hearing. I am not in a position to determine the exact likelihood of success as all of the evidence in regard to the claim will need to be considered to determine why the applicant sough to be placed on program leave and why she has not returned to continue the research program.

24. In any event, it is a question of money and can be remedied by an order of damages which is an adequate remedy if the applicant succeed in her application.

25. The balance of convenience supports a decision to dismiss the Application as the prima facies case in regard to both claims is not strong and damages would suffice as an adequate remedy.

Orders

26. I make the following order:

1. Application for a stay or interim order made on 30 September 2024 is dismissed.

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

Amendments

25 October 2024 - Applicant name removed and replaced with GKY

25 October 2024 - Applicant name amended to GKY

Decision last updated: 25 October 2024