Hallmann v Southern Cross University

Case •

[2025] NSWCATAD 172

•

21 July 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Hallmann v Southern Cross University [2025] NSWCATAD 172
Hearing dates: On the papers, final submissions 18 July 2025
Date of orders: 21 July 2025
Decision date: 21 July 2025
Jurisdiction:Administrative and Equal Opportunity Division
Before: P Roney KC, Senior Member
S Davison, General Member
Decision:

(1) A hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2)   The application to amend the complaint is dismissed.

Catchwords:

HUMAN RIGHTS - Discrimination - Factors relevant to power to amend complaint under s103 Anti-Discrimination Act 1977 (NSW)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

A Braiding v Charles Sturt University (2015) NSWCATAD 242

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261

McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299

Singh v South Western Sydney Local Health District [2020] NSWCATAD 263

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098

Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2

Thompson v Rail Corporation NSW [2008] NSWADT 329

Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP

Texts Cited:

None cited

Category:Procedural rulings
Parties: Geoffrey Hallmann (Applicant)
Southern Cross University (Respondent)
Representation: Applicant (Self- represented)
Minter Ellison (Respondent)
File Number(s): 2021/00363087
Publication restriction: Nil

Reasons for the DecIsion

  1. These reasons determine an application (the application) made by the applicant filed on 22 April 2025 to amend his complaint in which he alleges various kinds of discriminatory conduct were engaged in by the respondent whilst he was a tutor at the university. The continuation of the final hearing of the matter has been set down for 8, 9 and 10 September 2025. There was a directions’ hearing in relation to the matter on 30 June 2025 at which the parties addressed, to some degree, the matters raised in the application. The application is supported by affidavits of the applicant sworn on 19 March 2025 and 10 April 2025. In other respects, the parties have addressed the issues that concern the application in written submissions and the matter was foreshadowed as one that, because of the impending final hearing, would be determined on the papers.

  2. At the hearing on 30 June 2025 the applicant was given 7 days in which to file any further submissions on which of his proposed amendments constituted new claims and which were existing claims, however he did not file any further submissions until late on 18 July 2025, eleven days after the submissions were due. On a review of those submissions, which were 99 pages in length and which he referred to as “draft”, it is apparent that the submissions go to all of the issues raised in the application and not just the issues on which he was given leave to make a submission. We have, nevertheless, considered those draft submissions.

Whether a hearing should be dispensed with

  1. Sections 50(2) to (4) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) provide:

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

  1. In this case neither party opposed deciding the application on the papers.

  2. In our view it is appropriate that a hearing be dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013 (‘the CAT Act’).

Principles governing the exercise of the power to amend a complaint

  1. The Tribunal may exercise its discretion to amend a complaint in broad terms as set out in s 103 of the CAT Act. It provides:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

  1. The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 (Thompson) and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 (McCrystal). In McCrystal at [10]- [12] it was said:

In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT’s predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38].

The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred.

  1. In Thompson, after considering Zhang and Chand, the Tribunal considered the factors that may be relevant to the exercise of the power to amend a complaint, and at [13] held as follows:

The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant:

• Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B (2) and section 92(1)(a)).

• Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.

• Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.

• Whether the proposed amendment raises any issue of joinder.

• Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.

• Whether if refused/granted, any party might be prejudiced.

• Whether the party making the application is in default of previous orders.

  1. The objects of the CAT Act at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion.

  2. In Singh v South Western Sydney Local Health District [2020] NSWCATAD 263, Senior Member Mulvey expressed the view at [14]-[16] that:

First, the discretion to amend a complaint is one that should not be exercised lightly. Should the discretion be exercised, the power to amend a complaint inevitably means that the two-tiered complaint handling system established by Part 9 of the Act will be bypassed.

There is no power for the Tribunal to amend the complaint to include the period back to March 2018. In that regard the Respondent relies upon s103(2) limiting amendments of complaints to matters that were not within the complaint as investigated by the President. The matters between March 2018 and November 2019 were set out in the complaint that was investigated so they were excluded by s103(2).

Second, the President has limited the complaint to the period commencing November 2019. The President may decline a complaint in whole or in part including where part of the complaint of occurred more than 12 months before the making of the complaint (see s89B(2)(b) of the Act). It follows that this decision is not reviewable by the Tribunal (see s89B(4) and Wecker v The Delegate (the Decisionmaker) to the President of the New South Wales Anti-Discrimination Board (2014) NSWCA 372 at [26]).

Third, even where the Tribunal has the power to amend the complaint to commence at an earlier time, the discretion should not be exercised.

  1. In Braiding v Charles Sturt University (2015) NSWCATAD 242 at [49]-[50] (Braiding) the Tribunal stated:

“While the power in s103 to amend a complaint is unconfined, its most obvious application is to matters which occur after the complaint has been referred to the Tribunal. An applicant could not have included those matters in the original complaint. Amending a complaint in those circumstances avoids the time and cost involved for an applicant to make a new complaint to the President in circumstances where proceedings are already on foot in the Tribunal.

Allegations 5(a) and (b) occurring during the twelve month period covered by the original complaint. Mr Braiding could have raised those matters when he made that complaint. He says he did not do so because he did not have legal advice at the time and he was under pressure because time was running out for him because he had already missed several weeks of the course before lodging the complaint.”

  1. And at [54] the Tribunal in Braiding said:

“The complaint should not be amended to include points 5(a) and (b) for two reasons. Firstly, Mr Braiding could have made those complaints at the time he lodged the original complaints and the university would be prejudiced by the late addition of those matters. Secondly the allegations arise from the same circumstances as Allegations 1 and 2. Those allegations are that the dismissal of the complaints was in breach of the Anti-Discrimination Act. If Mr Braiding substantiates either of those complaints he may be entitled to a remedy under s108. The two events outlined in points 5(a) and (b) leading up to the decision to dismiss the complaints are unlikely to have any material effect on any remedy to which Mr Braiding may be entitled. In those circumstances there is no significant prejudice to Mr Braiding if the complaint is not amended.”

  1. It is of critical relevance that this matter is part-heard and has been set down for hearing in September (that is, in two months’ time). Apart from decisions of this Tribunal, guidance may be found in decisions of the Courts concerning whether to allow amendments close to or during a hearing. Whilst NCAT is not a Tribunal of strict pleadings and should proceed to determine a matter without regard to technicalities or legal forms (s 38(4) of the CAT Act), the application to amend a complaint must be sufficiently set out to enable its scope to be understood.

  2. The principles applicable to an application for leave to amend a pleading in the civil courts and, by analogy, with some modification, also relevant here are well established: see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon) at [5], [25]–[30] per French CJ, at [71]–[83], [89]–[103], [111]–[114] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [38]–[45], [51] per Keane CJ, Gilmour and Logan JJ; Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098 at [120]–[146] per Gleeson J (affirmed on appeal: Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2).

  3. The principles discussed by the High Court in Aon at [5] and [102]-[111] inform the exercise of the discretion to grant leave to amend. The following principles assume importance:

  1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.

  2. The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.

  3. There is a distinction between amendments which are necessary for the just and expeditious resolution of "the real issues in civil proceedings" and amendments which raise new claims and new issues.

  4. The Court should not be seen to accede to applications made without adequate explanation or justification. The existence of an explanation for the amendment is relevant to the Court's discretion, and "[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment".

  5. The objective of the Court is to do justice according to law and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.

  6. Parties should have a proper opportunity to plead their case but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs. The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.

  7. Justice requires consideration of the prejudice caused to other parties, other litigants and the Court, if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.

  8. The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.

  9. Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.

  10. The applicant must satisfy the specific requirements of rules, such as where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.

  1. Of critical importance to the matter under consideration here are the propositions that “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”, that justice requires consideration of the prejudice caused to other parties and the Tribunal if the amendment is allowed, consideration of the strain the litigation imposes on litigants and witnesses, the point the litigation has reached relative to a trial when the application to amend is made, and whether the applicant has had sufficient opportunity to raise or set out his case.

Background to the complaints and timing of the subject events

  1. On 22 April 2025 the applicant filed the application to amend which comprised 66 pages of submissions, seeking to raise what were said to be no fewer than 19 new claims. It was accompanied by a 10 page affidavit by the applicant, dated 10 April 2025.

  2. The 10 April 2025 affidavit explains that the conduct, which has hitherto been the subject of the complaint, all related to events that occurred between January and September 2020. In January 2021 he notified the university that he was making a discrimination complaint based on disability discrimination and he then lodged a complaint with New South Wales Anti-discrimination Board (ADNSW) on 11 August 2021. These proceedings have therefore been on foot for almost four years in respect of events that occurred four to five years ago.

  3. The applicant contends that he suffers various ailments, injuries and illnesses which disable him in various ways, the details of which are not particularly relevant for present purposes. The conditions that are relevant to the claims he makes include that he suffered, and still suffers, from jugular occlusion, a spinal injury, Myalgic Encephalomyelitis and Chronic Fatigue Syndrome.

  4. There is a considerable body of medical evidence, which has been filed in the Tribunal, which seeks to demonstrate the character of the disabilities arising from those conditions, and how some of them do materially interfere with his capacity to focus and deliver outcomes that require clear thought. That is a relevant consideration in deciding whether to permit the amendments he seeks to make.

  5. The applicant presently alleges that the respondent was aware of his disabilities in the context of his PhD candidature in 2004 and, in the context of employment, in 2006 when it first received his resume and at various points thereafter.

  6. The applicant presently alleges that in March 2020, when the COVID-19 worldwide pandemic was declared, the respondent emailed all tutors including the applicant and advised them to stay home. On 18 May the applicant sought out assistance with a chair for his home office because of aggravations of the applicant's past spinal injuries that, he contends, had been asymptomatic for at least four years. He also contends that the respondent failed to provide such accommodations, claiming that it had to adhere to a disability policy that required the applicant to supply a report from a medical practitioner despite, as the applicant says, him being unable to access any medical practitioners because they were closed locally. He says that he underwent a telehealth appointment in relation to these matters for the first time on 1 July 2020.

  7. The applicant presently alleges that between 18 May 2020 and 1 July 2020, he warned the respondent’s WHS Manager that a failure to act with respect to the chair was aggravating the spinal injuries and, in turn, his disabilities and associated conditions, and his health was spiralling downwards. The applicant says he warned that it would reach a point of no return. He contends that further warnings of decline were provided to the respondent and the respondent's insurer across the remainder of 2020.

  8. The applicant presently alleges that the respondent's workers compensation insurer, EML, funded a chair in about September 2020 but the chair was not suitable and, despite the Applicant's complaints, the respondent ignored the requests for a different chair. He says that his conditions continued to deteriorate.

  9. The applicant presently alleges that across 2020 and 2021 the respondent, particularly its WHS Manager, worked with its workers’ compensation insurer, EML, to terminate a workers’ compensation claim he had made. He says the WHS Manager advised senior staff in June 2020 that the respondent should challenge the claim. He presently alleges that the WHS Manager provided false information to the insurer about the events surrounding the cause of the injury, and the interactions the applicant had with the respondent, and alleges that the Manager also made false allegations about the applicant to the insurer. He presently contends that the insurer relied upon these allegations and false information and briefed independent medical practitioners, who then relied upon that false information to produce reports that were used to terminate the applicant's workers’ compensation claim, and therefore his treatment, from October 2021 until it was restored in July 2022.

  1. The applicant appealed the October 2021 rejection of his claim. He now alleges that on 16 December 2021 the WHS Manager celebrated the fact that the reviewing authority had not overturned the decision to decline the claim and did so in an email to others.

  2. The applicant commenced proceedings in the NSW Personal Injury Commission (PIC). The WHS Manager provided a statement to the PIC which the applicant presently alleges contained false information. The PIC reviewed the factual evidence and accepted that the applicant's overall health had deteriorated as a result of the aggravation of his conditions and that this was causally related to his employment.

The original complaint to the New South Wales Anti-Discrimination Board

  1. The Applicant's original complaint was filed with the ADNSW on 11 August 2021 and was subsequently partially accepted.

  2. The matter was referred to the Tribunal on 17 December 2021 pursuant to s 93C(b) of the Anti-Discrimination Act (AD Act). Not all matters complained of were referred. Those that occurred before 18 March 2020 and were out of time were not referred, pursuant to s 89(b) of the AD Act. The President’s report with the referral precisely identifies the referred claims in the following terms:

The complainant alleges that the respondent failed to render him appropriate assistance and support via its disability unit. When on 18 March 2020, he made a request for a suitable chair to provided, due to deteriorating back and neck pain.

The complainant further alleges that the respondent failed to conduct an assessment of his home work space and insisted that he should provide doctor's report which. he was unable to obtain at the time.

The complainant alleges that when he petitioned the Vice Chancellor for assistance. He suffered various detriments via the conduct of respondent’s HR Director, who allegedly engaged in a in a fishing expedition to muck to muck rake. The alleged detrimental conduct includes

-Warning him to stop using PHD Candidate in his sign off and breaching his privacy:

-Levelling a misconduct charge against him in September 2020. that he had deliberately misrepresented himself as a PHD Graduate.

-Making a finding partially upholding the misconduct charge against him.

-Organising a review of the misconduct decision by a person that cannot be considered independent of the process

-Alleging that he deliberately misled the workers compensation insurer with respect to hours worked

  1. Hence, the accepted grounds of complaint that were referred to the Tribunal can be described as follows:

  1. that between 18 March 2020 and 11 August 2021 the respondent directly discriminated against the applicant on the basis of his disability by failing to accommodate his disability when it failed to purchase him an ergonomic chair in June 2020 (the chair issue). In the application the applicant articulates the chair issue as being that the respondent directly discriminated again the applicant by failing to accommodate the applicant's disabilities when it failed to provide the applicant with a chair in May or June 2020;

  2. the respondent then indirectly discriminated against the applicant by requiring him to comply with the respondent's Employees with Disabilities Policy (the medical evidence disability policy issue) which the applicant was unable to comply with because of his disability. In the application the applicant articulates the disability policy issue as constituting indirect discrimination against him by requiring him to comply with a requirement or condition which he was unable to comply with because of his disability. That is, the respondent required the applicant to comply with a policy of the University which required that he provide certain medical evidence, in circumstances where they were in the midst of a pandemic;

  3. the respondent then victimised the applicant by subjecting him to various detriments because he allegedly made a complaint to the Vice Chancellor on 19 June 2020 (the first victimisation complaint).

  1. Since the complaint was referred there have been directions and other orders of the Tribunal on 24 May 2022, 2 August 2022, 30 August 2022, 26 April 2023, 18 July 2023, 17 October 2023, 19 December 2023, 22 March 2024, 31 October 2024 (after a 2-day hearing), 19 February 2025, and 30 June 2025 (in preparation for the final hearing). The respondent submits that the applicant has continuously failed to comply with the orders of the Tribunal and specifically matters required of him in a number of the direction’s orders listed above. That submission by the respondent is clearly correct.

  2. The applicant told the tribunal at the oral hearing of this matter on 30 June 2025 that he accepted that he had missed the majority of deadlines imposed on him by the Tribunal. He indicated that this demonstrated his incapacity to meet those deadlines because of his disabilities. He made this concession when asked if he wanted an opportunity to respond to the respondent’s submissions going to the question of which of his proposed amendments constituted new claims and which were existing claims, and as to how long he needed to make those submissions.

  3. The respondent submitted that the delays caused by the applicant's inability to adhere to filing deadlines, as directed, has caused the respondent hardship by:

  1. incurring additional costs for legal representation to appropriately defend the allegations;

  2. expending resources to keep witnesses who no longer work for the Respondent engaged in the proceedings; and

  3. impacting the Respondent's ability to defend the allegations as the passing of time may impact on witnesses' ability to recollect material events.

  1. The respondent submits that the Tribunal should give considerable weight to the prejudice caused to it as a result of the persistent and repetitive nature of the applicant's non-compliance and should dismiss the application to amend the complaint.

  2. The Tribunal does give some weight to this factor, however we also accept that to a significant degree the applicant’s health issues explain some, but not all, of his non compliances. The Tribunal accepts that the prejudice referred to by the respondent is likely to have been caused. We do not, however, consider those matters, in and of themselves, justify a refusal of the application to amend.

  3. In our view, the most significant factor is the lateness of this application against the background of significant non-compliance with the orders of the Tribunal for several years. It is well accepted that very often the extent of prejudice that flows from delay in legal proceedings is unidentifiable. At a minimum, we are satisfied that there can be inferred prejudice suffered by the respondent from the ‘failing memories’ of those involved.

  4. In May 2022 the applicant was provided with a body of records and correspondence from the respondent through a notice to produce in the course of other proceedings before the PIC. In September 2022, the applicant was again provided with most of the same documents after requesting them through a summons in the current proceeding here. It has not been shown on the material that any of these documents were relevant to the bringing of these new claims. The applicant received these documents before he filed his first Points of Claim and three years has passed since he received them.

  5. On 27 January 2023, after multiple extensions of time, the applicant filed his Points of Claim as well as over 2000 pages of 'supporting material', including large portions of the summonsed documents. An 'amended' Points of Claim (the current Points of Claim) was subsequently filed on 17 February 2023, on the basis that the 27 January 2023 document was a draft version and erroneously filed. The document filed on 17 February 2023 was dated 27 January 2023. It is the applicant’s current pleading. On 23 May 2023, the Respondent filed its Points of Defence.

  6. At paragraph 2 of the Points of the Defence the respondent specifically stated that the current Points of Claim included a number of claims which were outside the scope of the complaint as referred to the Tribunal on 17 December 2021. The applicant was on notice from that point that there were matters which he had referred to, or included with his filed material, which did not relate to the complaint accepted and referred by ADNSW.

  7. The claims made in the current Points of Claim are articulated in the form of a narrative which, in large part, is a recitation of the ‘story’ that he wishes to tell about his treatment by the respondent. It often lacks focus on what is material and lapses into what would amount to evidence. It makes claims for things that demonstrably were not accepted by ADNSW including claims of bullying, harassment and vilification, as well as victimisation because of his disability. It does not clearly set out what is relied upon as establishing the basis for the accepted claims – that is, the chair issue, the medical evidence disability policy issue and the first victimisation complaint arising out of his complaint to the University's Vice Chancellor on 19 June 2020. It sets out a long list of things he wishes to raise concerning the conduct of the respondent from July 2020 until April 2022 even though the complaint was accepted on the basis of events over the period from 18 March 2020 to 11 August 2021, and on the 3 specific grounds set out earlier in these reasons.

Procedural history in the Tribunal

  1. The matter has had a long procedural history in the Tribunal, some of which has been touched on already. It initially came on for a final hearing before us over two days on 30 and 31 October 2024. Apart from an opening of the case by the applicant, the matter advanced little at the hearing because the parties used the time to attempt to negotiate an outcome but which they did not achieve.

  2. As mentioned above, in May 2022 the applicant was provided with a large body of internal records and correspondence from the respondent through a notice to produce in the course of other proceedings before the PIC. In September 2022, the Applicant was again provided with another body of those documents after requesting them through a summons in the current proceedings before the Tribunal.

  3. In February 2023, after multiple extensions of time, the applicant filed his current Points of Claim as well as over 2000 pages of 'supporting material', including large portions of the summonsed documents.

  4. The applicant contends that numerous documents he obtained under summons identified that further documents existed, in relation to which the respondent had not been forthcoming. He then issued summonses to the respondent and the respondent's insurer in May 2023. The order he sought for a summons to issue to the respondent was refused. The respondent's insurer is said to have ignored the summons. The applicant says that the insurer dragged out the provision of documents across approximately 15 weeks in consequence of which the applicant was then unable to comply with the timetable to provide a Reply to the respondent's Points of Defence. The Reply was eventually filed without him foreshadowing that any application would be made to expand the grounds of his complaint.

  5. As a result of what was said in the applicant’s opening at the final hearing on 30 October 2024, the Tribunal identified that of the 10 separate grounds the applicant sought to advance, a significant number were not referenced in the claims referred to the Tribunal. Two of the new claims related to victimisation. Another two were new unpleaded claims of direct discrimination.

  6. After it was clear that the final hearing would be part-heard, the Tribunal granted the applicant the opportunity to seek leave to amend his original complaint and he was ordered to file any such application and supporting material by 31 January 2025. That was the date that he indicated would allow him sufficient time to file his application - that is, three months to articulate and apply to make amendments that reflected what had been opened but not pleaded. He was not given carte blanche to apply to amend in any way he saw fit.

  7. The decision to allow the applicant three months to file the application to amend was made directly in response to the applicant's stated needs in relation to his medical conditions. After failing to comply with that order, the applicant was given further accommodation and granted an extension to file any application and supporting material by 15 April 2025. He eventually filed the application a week after 15 April 2025.

  8. The final hearing of the matter has been set down for 8, 9 and 10 September 2025 and will be heard in Lismore where the respondent conducts the university.

The new claims sought to be brought in the application

  1. In his application to amend, the applicant states that all of the claims he refers to in that submission, particularly those set out in section 5 of the submission, are new. That is, he says that they have never previously been subject of complaint. At the oral hearing of this matter on 30 June 2025, the applicant could not indicate which, if any, of these new claims were matters that he had mentioned in his opening at the hearing on 30 October 2024 but which were not in the current Points of Claim. He was asked if he accepted the respondent’s contention that many of the matters he sought to now raise were already referenced in the current Points of Claim.

  2. He was given 7 days to provide a submission on that issue, however he did not file any further submissions until 18 July 2025 in a document which he stated was a “draft” and not a final submission. The 99-page draft submission appears to be a response to the respondent’s submissions dated 6 May 2025. The applicant conceded in his 18 July 2025 draft submission that some of the proposed amendments were not materially different to those in his Points of Claim, and some are duplicate claims, and he sought to withdraw some but asserted that he would lead evidence on these issues at hearing.

  3. We carefully considered the application, the applicant’s arguments in relation to each of the amendments sought, and his 18 July 2025 draft submissions.

Proposed allegation one - discrimination

  1. The first ‘new’ proposed allegation is that the respondent failed to provide the applicant the benefit of relevant Work Health and Safety legislation to reduce risk of injury and instead applied a policy that caused an injury when the applicant, due to his disability and the circumstances of the COVID-19 pandemic, could not comply with the policy. This claim is set out over 7 pages in the application but rather ominously describes that section as a mere summary. The nub of the allegation is stated as follows:

Persons with and without a disability are entitled to the benefit of the relevant work, health and safety legislation with respect to the provision of safe home office; The Respondent claims that it required staff, with or without disability, to carry out a checklist to ensure that they had a safe work environment in the home;

When persons without and without a disability were sent home during the pandemic, the Respondent carried out a checklist and required them to work in a safe home office environment in accordance with the legislation;

Despite knowing the Applicant had been sent home by the Respondent and despite knowing it had no checklist and despite having not sent the Applicant a checklist, the Respondent conducted no assessment of the Applicant's home office in accordance with the relevant legislation to ensure the safety of the home;

Despite knowing the Applicant was in an unsafe home office and could not return to the campus, the Respondent undertook no steps to make the Applicant's home office safe in accordance with the legislation until September 2020 (and then no steps after October 2020 when the new chair was reported unsafe.

  1. We consider this to be a reformulation of the chair issue and the medical evidence disability policy issue but with a reference to a duty to make the home office safe in accordance with workplace safety legislation. It is clear that the alleged discriminatory act that forms the basis of this allegation was open to have been included in the original complaint.

  2. We do not consider that a refusal to include this allegation would diminish the possible remedies the applicant would obtain were he to succeed on the chair issue and/or the medical evidence disability policy issue.

Proposed allegation two - discrimination

  1. The second ‘new’ proposed allegation is that the respondent engaged in direct discrimination when it made various derogatory statements about the applicant's disability. We agree that this is a new allegation – that is, it was not one of the three referred to the Tribunal.

  2. The nub of the allegation is that on 24 August 2020 the WHS Manager, Jess Watson, emailed the HR Manager, Sharon Farquhar, and the WHS Manager took it upon herself to single out the 42 symptoms experienced by the applicant and wrote “Please see attached Geoff Hallmann's response to Bruce's questions. Please note his 42 current symptoms”. He alleges that in her reply of 24 August 2020 the HR Manager, Sharon Farquhar, took it upon herself to mock the applicant’s claims to have disabilities, saying “Indeed! I honestly don't know whether to laugh or cry. What a horrible life”.

  3. It is clear that the alleged discriminatory act that forms the basis of this allegation was open to have been included in the original complaint as it was known at the time, or soon after in 2022 when he obtained a copy of the email from the respondent. We note that the email was not directed to him or sent to him at the time.

  4. We do not consider that a refusal to allow this allegation would significantly prejudice the applicant as it is a one-off statement, admittedly mocking him and potentially on the basis of his impairments, but better described as a statement reflecting a scepticism about whether he was impaired in the ways he claimed. In our view, it is not conduct which, even if held to be discriminatory, would be likely to result in any significant compensation award.

Proposed allegation three - discrimination

  1. The third ‘new’ proposed allegation is that the respondent engaged in direct discrimination when it denied the applicant an 'in home' assessment by an occupational therapist and denied that it was doing in-home assessments either during the early stages of COVID-19 or at all. The applicant says he was treated differently to persons without a disability whose circumstances were not materially different who were given home assessments.

  2. The nub of the claim is that on 18 May 2020 in an email WHS Manager, Jess Watson, wrote that the respondent elected to bring the applicant back to the campus to arrange an assessment to be undertaken on-site, rather than at his home, as a cost minimisation factor.

  3. The respondent submits that the alleged discriminatory act that forms the basis of this allegation was included in the original complaint and was, therefore, known to and investigated by the President when initially determining the scope of this matter but was not deemed to be a separate ground at the time. We accept this characterisation of the events. We also note that s 103 of the AD Act provides a power to the Tribunal to amend a complaint to include additional complaints and anything else that was not included in the complaint as investigated by the President.

  4. We consider that this allegation is a subcategory of the chair issue and the medical evidence disability policy issue but including a reference to him being denied an 'in-home' assessment by an occupational therapist. It is clear that the alleged discriminatory act that forms the basis of this allegation was open to have been included in the original complaint or to have been the subject of a much earlier application to amend.

Proposed allegation four - discrimination

  1. The fourth ‘new’ proposed allegation is that the respondent engaged in direct discrimination when it denied the applicant equipment for his home office and denied that it was providing such equipment to other staff members when, in fact, it was.

  2. We consider this to also be a subcategory of the chair issue and the medical evidence disability policy issue but including a reference to the applicant being incorrectly told the respondent was not providing such chairs to other staff members. The applicant submits “in addition or in alternative” that the respondent acted in the way described in the third ‘new’ proposed allegation. In our view, this is mere repetition.

  3. The alleged discriminatory act that forms the basis of this allegation was included in the original complaint and was, therefore, known to and investigated by the President when initially determining the scope of this matter but was not deemed by the President to be a separate ground at the time.

Proposed allegation five - discrimination

  1. The fifth ‘new’ proposed allegation is that the respondent engaged in direct discrimination when it denied the applicant equipment for his home office, despite having an occupational therapist report (which the respondent rejected) and, later, a medical report (which the respondent felt was sufficient to justify accommodations), knowing that denial of the equipment was going to aggravate the applicant's injuries.

We consider this to be another subcategory of the chair issue and the medical evidence disability policy issue but including a reference to knowledge that the consequence would be to aggravate the applicant's injuries. The basis of this allegation was included in the original complaint and was, therefore, known to and investigated by the President when initially determining the scope of this matter.

Proposed allegation six - discrimination

  1. The sixth ‘new’ proposed allegation is that the respondent engaged in direct discrimination when it made fun of and/or mocked the applicant's disability and its impact on his life. We consider this to be a repetition of the claims made about the mocking email raised in the second proposed allegation. In our view, it does not add anything material. The same points arise here as arose in relation to the second proposed allegation.

Proposed allegation seven - discrimination

  1. The seventh ‘new’ proposed allegation is that the respondent engaged in direct discrimination from 2021 until 2025 in these NCAT proceedings when it breached its obligations under the Model Litigant Rules and petitioned the Tribunal to not accommodate the applicant's disabilities on numerous occasions, in particular when the respondent’s deliberate actions were contributing to the delays.

  2. We consider this claim to be new. It is described over 5 pages of the application and recites a long history of conduct, both before and after the complaint was made, and which is said to amount to the offending conduct. It intermingles conduct engaged in with the respondent’s insurer before the complaint with the conduct of this litigation. It picks up the chair issue, as well as the medical evidence disability policy issue, along the way.

  3. By way of example some of what the applicant seeks to argue includes:

On at least six or more occasions, in circumstances where the Applicant's work-related disabilities (including the additional work-related disabilities arising from the 15 October 2022 car accident) the Respondent instructed their solicitor to reject the Applicant's request for additional time to comply with the orders of the Tribunal including occasions where it applied to strike out the Applicant's case - a breach of the above Model Litigant Rules;

On at least 4 occasions, the Respondent's solicitor required the Applicant to provide medical evidence of the issues causing delay when those issues were almost exactly the same on each occasion, hence the Applicant was forced to incur significant fees for attendances and reports - a breach of the above Model Litigant Rules;

The actions of the Respondent and the Respondent Insurer put the Applicant to the onus of litigating these very complex matters across many years - and due to the complexity of the matter, the Applicant was self-represented.

  1. The respondent submitted that the applicant’s allegations are misconceived as it is not a government entity and therefore the Model Litigant Rules are not applicable to it. The applicant does not show how the Model Litigant Rules are applicable to the respondent. The respondent’s submission is that the allegation is otherwise misconceived and therefore lacks substance. We note, however, that this submission was not accompanied by any other reason for why the allegation should be rejected, apart from the point that it is not subject to the Model Litigant Rules.

Proposed allegation eight - discrimination

  1. The eighth ‘new’ proposed allegation is that the respondent engaged in indirect discrimination when it expected the applicant, who was in the high-risk group for severe illness if he caught COVID-19, to leave his residence and risk exposure (and severe illness/death) by being exposed to others in the community at the respondent's campus.

  2. This claim turns on an email dated 23 June 2020 from the WHS Manager, Jess Watson, to the respondent's Workplace Relations and HR Business Partnerships Manager, Nick Mazzer. Ms Watson wrote: “I wonder whether it's easier (and no difference from a risk perspective?) to courier him a chair on a temporary basis (that is until his compromised immune system isn't an excuse for not leaving his home)”. The applicant alleges that the respondent viewed his high-risk status as nothing more than “an excuse for not leaving his home”. The nub of the allegation is that despite being aware of the applicant's disabilities and high-risk, the respondent attempted to have the applicant return to the workplace in order to provide him a workstation and thereby place him at unreasonable risk.

  3. We consider that the alleged discriminatory act that forms the basis of this allegation was also open to have been included in the original complaint as the applicant knew about it at the time, or certainly soon after, when he obtained a copy of the email from the respondent. The alleged discriminatory act was, therefore, known to and investigated by the President when initially determining the scope of this matter but was not deemed by the President to be a separate ground at the time.

Proposed allegation nine - discrimination

  1. The ninth ‘new’ proposed allegation is that the respondent, in applying its disability policy, required the applicant to attend in person at a medical practitioner to undergo an assessment of his home office workstation needs arising from his disability, for the purpose of providing 'documentary evidence' of those needs in circumstances where the applicant could not comply with that requirement.

  2. We consider that this allegation is not materially different to the chair issue and the medical evidence disability policy issue already raised and appears to raise the same points mentioned in the third proposed allegation. The same matters we have dealt with in relation to the third proposed allegation also apply here.

Proposed allegation ten - discrimination

  1. The tenth ‘new’ proposed allegation is that the respondent engaged in indirect discrimination when it attempted to require the applicant to return to campus during the pandemic, without sufficient safeguards for COVID-19 (prior to extensive knowledge of COVID, prior to vaccines and prior to a planned approach to a return to work) when the respondent knew that the applicant’s immunocompromised state, age, obesity and other factors placed him at a high risk of infection and death.

We consider that the information that is the basis for this allegation was known to the applicant when he made his complaint to ADNSW but chose not to make a complaint based upon it.

Proposed allegation eleven - victimisation

  1. The eleventh ‘new’ proposed allegation is that the respondent engaged in victimisation of the applicant by denying him work hours in 2020 and 2021.

  2. Section 50 of the AD Act provides that for the proposed allegation eleven to succeed as the basis for a victimisation complaint the applicant must show to the Briginshaw standard that he was denied work hours or otherwise subject to detriment because he brought proceedings against the discriminator or any other person under the AD Act, gave evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the AD Act, alleged that the discriminator or any other person has committed an act which contravenes the AD Act, or has done anything under or by reference to the AD Act to the discriminator or any other person, or the discriminator knows or suspects the person intends to do, or has done, any of the above.

  3. The applicant alleges that on 19 January 2021 and on 21 March 2021 he notified the university that he was making a discrimination complaint based on disability discrimination. A review of the correspondence he relies on as constituting that January 2021 notice shows that it was a brief comment in response to him being provided with the reasons for finding that he was in breach of the University’s Code of Conduct in which he said he would be appealing and that if the university declined his PhD upon completion, he would be “taking anti-discrimination actions against it”. It did not in fact say that he was making a discrimination complaint based on disability discrimination. A review of the document he relies on as constituting that March 2021 notice shows that it was in a lengthy submission attacking the findings that he was in breach of the University’s Code of Conduct. On the last page of it he writes:

I have provided the evidence, the law, the policy and the events that demonstrate precisely what these charges are really about, and their origins.

I ask that you not only dismiss this matter, but also take a further step of recommending that an investigation be undertaken into the conduct of Ms. Farquhar in raising, investigating and deciding this matter, in addition to the apparent harassment, bullying, intimidation and discrimination that has occurred here - simply in response to the fact that I reached out to the VC to obtain assistance for improvement of my workplace at home, in the middle of a pandemic, whilst spiralling downhill with respect to a persisting injury and 25 long-term serious medical condition, from the inaction and unreasonableness of Ms. Farquhar's office.

It is noted that bullying, harassment, discrimination are a breach of the University's code of conduct and an offence within the sections 789FA- 789FI of the Fair Work Act 2009 (Cth).

Moreover, the question really should be addressed as to why the person who initiated the complaint, actively sought out alleged offences (all of which were baseless and wrong), was ever involved in the investigation and decision-making that led to the outcome of the complaint.

This is wholly inappropriate. It is blatant bias and a blatant denial of natural justice, and an offence.

  1. The March 2021 email did not, in fact, say that he was making a discrimination complaint based on disability discrimination.

  2. He then lodged a complaint with ADNSW on 11 August 2021. The applicant has not, however, provided any evidence in the application that would be capable of showing that the respondent knew, or had a suspicion, that the applicant intended to make a complaint under the AD Act prior to 11 August 2021. More significantly, there is no evidence before us that any such knowledge or suspicion was the basis for denying the applicant work hours in 2020 and 2021.

  3. The applicant states that the WHS Manager, Jess Watson, made a decision in November 2020 with others to actively reduce the applicant's hours of employment. The applicant alleges that there was similar conduct with similar effect that occurred in April 2021.

  4. We note that the complaint to ADNSW was made many months later, on 11 August 2021. In the absence of any evidence, it is only speculation that the respondent believed the applicant intended to make a complaint under the AD Act prior to 11 August 2021 and that this was the basis for denying him work hours in 2020 and 2021.

  5. We accept the respondent’s submission that the applicant was aware he was not receiving work hours in 2020 and 2021 and included this allegation in his complaint to ADNSW that he was 'excluded from work'. This allegation, in some form, was before the President at the time the matter was referred to the Tribunal. The respondent's Points of Defence also responded to this allegation and contends that the respondent had no obligation to offer the applicant consistent hours of work or any ongoing work at all. The conduct complained of occurred over four years ago and the applicant has been aware of the documents he relies upon to support it since May 2022 but did not make a complaint expressly about it within 12 months of becoming aware of it; see 89B(b) AD Act and the decision in Braiding at [54].

  6. We note that the applicant's existing complaint includes a claim for victimisation which, if it succeeds, may give him compensation for being 'excluded from work’.

Proposed allegation twelve - victimisation

  1. The twelfth ‘new’ proposed allegation is that the respondent engaged in victimisation of the applicant by making false statements to some of its senior staff and taking active steps to prevent the applicant from accessing workers’ compensation benefits. Many of the same points as have been made concerning proposed allegation eleven also apply here. The facts he seeks to rely on mainly involve a repeated description of the circumstances by which his workers’ compensation claim came to be rejected.

Proposed allegation thirteen - victimisation

  1. The thirteenth ‘new’ proposed allegation is that the respondent victimised the applicant by asserting to some senior management staff that the applicant was lying to their workers’ compensation insurer, EML, and other false assertions. The applicant seeks to rely facts that are largely a repeated description of the circumstances by which he claims EML came to terminate his workers’ compensation claim. It has much in common with proposed allegation twelve and the same comments apply here.

Proposed allegation fourteen - victimisation

  1. The fourteenth ‘new’ proposed allegation is that the respondent victimised the applicant by finding the applicant guilty of misconduct and then taking steps to deny the applicant acquittal from the misconduct charges by failing to accord procedural fairness and ignoring the applicant's submissions showing evidence of procedural unfairness and errors in the decision. Allegation fourteen is discussed below with allegation fifteen.

Proposed allegation fifteen - victimisation

  1. The fifteenth ‘new’ proposed allegation is that the respondent victimised the applicant by taking steps to “create” multiple misconduct charges against the applicant sufficient to warrant a serious misconduct finding and therefore establish a right to effect a legal termination of the applicant's employment. The inference in the allegation and the accompanying “Description of the Event” is that the ‘creation’ of the misconduct charges was artificial or otherwise improper.

  2. Allegations fourteen and fifteen closely resemble the present victimisation complaint arising out of the applicant’s complaint to the University's Vice Chancellor on 19 June 2020. In that regard reference is made to the discussion above in relation to the eleventh proposed allegation and his submission regarding the 21 March 2021 email.

  3. There is, however, no direct evidence before the Tribunal that the respondent’s actions were improper or taken because he brought proceedings against the respondent or any other person or any other provision listed in s50 of AD Act. In these circumstances, we consider the allegations amount only to speculation.

Proposed allegation sixteen - victimisation

  1. The sixteenth ‘new’ proposed allegation is that the respondent spread rumours among staff which denigrated the applicant's character and reputation “as a result of having made a disability discrimination complaint against the Respondent or after having made a disability discrimination complaint against the Respondent”. This new allegation appears to be the same as, or closely related to, proposed allegations two and six. The same points arise in relation to proposed allegation sixteen as arise in relation to those other allegations.

Proposed allegation seventeen - victimisation

  1. The seventeenth ‘new’ proposed allegation is that the respondent's WHS Manager, Jess Watson, victimised the applicant by engaging in false reporting of fraud to the insurance company and senior management with the purpose of having the Applicant charged with an offence and penalised. This new allegation appears to be the same as, or closely related to, proposed allegations eleven and twelve. The same points arise in relation to proposed allegation seventeen that arise in relation to those earlier allegations.

  2. The assertion that Ms Watson’s motivation in accusing him of falsehoods was because he brought proceedings against the respondent or any other person of because of any of the other reasons listed under s 50 of the AD Act is unsupported by any evidence before the Tribunal and, in these circumstances, we consider the allegations to amount only to speculation.

Proposed allegation eighteen - victimisation

  1. The eighteenth ‘new’ proposed allegation is that the respondent's WHS officer, Kate Powell, victimised the applicant by asserting that the applicant's report of 30 July 2020 was effectively contrived and/or fake. Proposed allegation eighteen appears to be an extrapolation of allegations eleven, twelve and seventeen and the same comments apply to allegation eighteen as apply to those earlier allegations.

Proposed allegation nineteen - victimisation

  1. The nineteenth ‘new’ proposed allegation is that the respondent victimised the applicant by asserting that the applicant's immunocompromised state arising from his Myalgic Encephalomyelitis/Chronic Fatigue Syndrome was a mere excuse for not attending a medical practitioner in the height of the pandemic.

  2. This proposed allegation depends on the same email dated 23 June 2020 from the respondent's Workplace Relations and HR Business Partnerships Manager, Nick Mazzer, to the WHS Manager, Jess Watson, that founds the proposed allegation eight. It recharacterizes the events here as victimisation, rather than discrimination. The same points can be made here as were made in relation to proposed allegation eight.

  3. We note that the email was sent before there was any suggestion of any kind that a complaint might be brought. Again, suggesting that an email in June 2020 was written because he may bring proceedings against the respondent or any other person, or for any other reason listed under s 50 of the AD Act, is unsupported by any evidence. We consider this, too, to amount only to speculation.

  4. For the benefit of the Tribunal and the applicant, the respondent identified those allegations referenced in the application to amend which it considered to be new. The respondent identified eight new allegations - two of which (issues two and sixteen) it said were essentially the same issue. It suggested that eleven of the claims referred to in the application (allegations one, three, four, five, eight, nine, ten, eleven, fourteen, fifteen and seventeen) had already been raised or pleaded in the current Points of Claim, and to which it has long objected. The respondent, nevertheless, opposed allowing the applicant to bring any claims in respect of the new allegations in the application to amend because, inter alia, none of these allegations related to one of the three claims referred by the President ADNSW to the Tribunal.

Consideration

  1. Having regard to what we have described above as the character of each of the proposed claims, and the elementary problems and serious hurdles that they each present, we consider that it is not in the interests of justice that the claims should be added to those already before the Tribunal.

  2. Notwithstanding the applicant’s impairments, which we accept may impede his capacity to always comply with deadlines, he has had a very lengthy period - now some four years - to identify and articulate his claims. We are not satisfied that it is only now that he has been able to articulate them or bring an application to amend his claim to allow them to be included.

  3. In his affidavit of 10 April 2025, the applicant attests to having been a solicitor, it seems before his involvement with the university, and swears that in that role he had a history of providing advice and representation on discrimination in the context of both NSW and Commonwealth disability discrimination law in the educational context. He is now a practising solicitor in a law firm he operates and has a practicing certificate entitling him to practice. Despite his assertions that his Points of Claim demonstrate some inability to identify the critical issues which he seeks to advance, we do not accept that he did not understand the function and purpose of delivering those Points of Claim.

  4. In respect of the hearing in Lismore on 8, 9 and 10 September 2025, it has been made clear to the parties that they will need to manage the matter so that it is concluded in every respect in those three days. That much was emphasised to the parties during the recent hearing of the matter on 30 June 2025, and the orders made have noted that. To the extent that the addition of these claims is likely to add to the scope of matters to be addressed in those three days, and prejudice the prospects of concluding the matter in that time, the current application for amendment of the claim is a matter of very considerable significance. We consider that the addition of these claims would mean that the matter would not conclude in the three allocated days.

  5. Applying the same approach here to what was done in the decision in Braiding, we accept that while the power in s103 to amend a complaint is unconfined, its most obvious application is to matters which occur after the complaint has been referred to the Tribunal. In our view, only one of the issues sought to be added by the applicant (proposed allegation seven) occurred after the complaint was referred.

  6. We are also satisfied that the applicant could have included all the additional matters in the original complaint or at least made a timely application to amend his claim to include them. The applicant does not clearly explain why he did not do so. He points to the fact that he lost his house to mould in the Lismore flood rains in February 2022, resulting in a protracted dispute with the insurer and housing in temporary accommodation (with no access to materials, printers, resources or suitable furniture). We do not, however, consider that to be an explanation for why he did not put forward the claims when he made his complaint on 11 August 2021 or why he did not apply to amend his claim at some point after February 2022 and before April 2025.

  7. We are mindful of the comments of various courts that amending a complaint to join later-arising claims can avoid the time and cost involved for an applicant in making a new complaint to the President in circumstances where proceedings are already on foot in the Tribunal. We are not satisfied, however, that the later-arising claims in this matter have more than remote prospects of success.

  8. Had the applicant filed his application when it was required to be filed in January 2025 – a date proposed by the applicant - the resolution of the issue of what matters would go to hearing would have occurred much earlier than it has. The respondent's material does not seek to identify the number or identity of witnesses, or their capacity to be called to give evidence, or the extent of their recollections of the relevant events, to which these new claims relate.

  9. All of the nineteen ‘new’ claims, with the exception of proposed allegation seven (which alleges inappropriate conduct of the respondent in the management of proceedings before the Tribunal), are matters that involve factual investigation, and relevant states of mind and intent in 2020 and 2021 when the conduct founding the new claims are alleged to have occurred. Proposed allegation seven invites a factual and legal enquiry into years of activity in relation to the management of this proceeding in the Tribunal. It potentially could take many days to hear such a claim by itself.

  10. Because of the substantial number of what were said by the applicant himself to be new claims, we consider that it would be inevitable that there would need to be additional witnesses who would be called to give evidence in answer to these claims from the respondent’s perspective. In the alternative, these witnesses would need to provide statements which deal with those issues. Proposed allegation seven would – in and of itself - involve numerous witnesses who would have had no part in the factual events raised by the other claims including, for example, the persons giving instructions to defend this proceeding and, perhaps, members of the legal profession.

  11. This means that eighteen of the new claims could have been the subject of complaint when the original complaint was lodged and one could not. Certainly, all nineteen could have been the subject matter of complaint in the intervening years, even after the matter came before the Tribunal but before it was set down for hearing last year.

  12. We are satisfied that accepting the addition of all or any of the nineteen new claims in these circumstances would not provide a just and expeditious resolution of the real issues in dispute, at a minimum of expense.

  13. Furthermore, the absence of an adequate explanation or justification for the delay in seeking these amendments now is of critical significance. The Tribunal’s refusal of these amendments should not been seen as any form of punishment or imposed disadvantage on the applicant, nor does it reflect any failure to make adjustments for the applicant’s impairments. In arriving at our decision, we have accepted at face value the applicant’s contentions as to the ways in which he is disadvantaged by reason of his impairments.

  14. In our view there would inevitably be significant prejudice to the respondent were we to permit these amendments to the applicant’s claim. The precise extent and character of that prejudice could probably only be identified by permitting the respondent an opportunity, extending to several months, to investigate what would be required to answer these claims and to identify its view as to consequential prejudicial effect. We are satisfied that this would likely result in further postponement of the final hearing. In our view, this would be a most unsatisfactory outcome at this point in the litigation.

  15. The interests of justice are not served by permitting amendments which do not involve only minor departure from the way in which the case has been hitherto articulated. We note that some of the proposed amendments fall within one of the grounds available to the President to decline an amendment (section 89B (2) and section 92(1)(a) of the AD Act).

  16. The conundrum presented by the applicant is that he has been unable to demonstrate the ways in which he says these claims are all new or, for that matter, to identify the extent to which they cross over with or relate to existing claims. Ordinarily minor amendments to the formulation of existing claims would not lead any significant prejudice to the other party. However, the applicant’s proposed amendments are not amendments to the critical three allegations that were referred here. Rather, they are amendments and supplementary claims to those which appear in some cases to have been referenced in the applicant’s current Points of Claim but which were not properly before the Tribunal because they were not referred to it by the President of ADNSW.

  17. Some of the proposed amendments seek to pursue claims that are untenable, so allowing those proposed amendments is futile. In particular, allegation seven (that the respondent engaged in direct discrimination from 2021 until 2025 in these Tribunal proceedings when it allegedly breached its obligations under the Model Litigant Rules and petitioned the Tribunal to not accommodate the applicant's disabilities on numerous occasions) has no factual or legal basis as a recognisable claim for any discriminatory conduct prohibited by the AD Act.

  18. In our view, if leave was granted to the applicant to amend his claim in these circumstances, the respondent would be likely to be prejudiced in a case where the applicant has consistently been in default of previous orders.

  19. The application fails for the reasons set out above. The matter will proceed to a final hearing solely in relation to the issues referred to the Tribunal by the President ADNSW – that is, the chair issue, the medical evidence disability policy issue and the victimisation complaint arising out of his complaint to the University's Vice Chancellor on 19 June 2020.

Orders

  1. The Tribunal orders that a hearing is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

  2. The application to amend the complaint is dismissed.

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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: 21 July 2025

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