Hardgrove v University of NSW

[2025] NSWCATAD 287

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hardgrove v University of NSW [2025] NSWCATAD 287

Hearing dates:

25 June 2025

Date of orders:

19 November 2025

Decision date:

19 November 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

Leave is refused for the Applicant’s complaint of sex discrimination and victimisation to proceed.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1997 (NSW)

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Jones v Ekermawi [2009] NSWCA 38

Langley v Niland [1981] 2 NSWLR 104

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Purvis v State of New South Wales [2003] HCA 62

Seltsam Pty Limited v McGuinnes [2000] NSWCA 29

Category:

Principal judgment

Parties:

Claire Hardgrove (Applicant)
University of New South Wales (Respondent)

Representation:

Self-represented (Applicant)
University of New South Wales (Respondent)

File Number(s):

2025/00163246

Publication restriction:

None

REASONS FOR DECISION

1. Claire Hardgrove (‘the Applicant’) had an application to study M Phil at UNSW in Canberra. However, she was told by a Professor Flora Salim that she would be supervised in a PhD course if the Applicant moved her application from Canberra to Sydney.

2. After transferring her application, the Applicant contends that Professor Salim agreed to supervise her, which agreement is set out in an email dated 4 October 2024.

3. The Applicant alleges on 30 October 2024, Professor Salim said that if the complainant was afraid to be in Australia, then she could not do her PhD in Sydney.

4. The Applicant in an email and conversation on 31 October 2024, asked Professor Salim if the Sydney campus had ‘the resources to manage [her] vulnerability as a target of stalking, in instances where local police have no jurisdiction’.

5. On 9 December 2024, Professor Salim told the Applicant that she could no longer be her supervisor in the PhD program.

6. The Applicant’s complaint is that, after her application was complete, Professor Salim retracted the offer of supervision ‘due to her status as a victim of gendered violence’. Professor Salim’s manager placed additional requirements for Professor Salim for her to take on more students and Professor Salim ‘was disinclined to follow through on the effort required because [the Applicant] had a complaint on foot with NSW Police’. Professor Salim asked the Applicant to do extra work on a research plan after agreeing to supervise her, which she could not do because she was dealing with a sexual assault matter and resulting housing instability. Professor Salim told the Applicant that she needed to decide whether to do a PhD or pursue the personal issues she was facing and retracted her offer of supervision.

7. These are the facts which were provided to the President of Anti-Discrimination NSW (‘ADNSW’) in a complaint from the Applicant in which she alleges that she was discriminated against because of her sex and in education by University of NSW. The University of NSW is the Respondent (‘the Respondent’).

8. In correspondence passing between the Respondent and ADNSW the Respondent provided the following response to the claim.

9. To be offered a PhD candidature at UNSW, the Applicant needs to:

• organise supervision consistent with the Higher Degree Research Supervision Policy; and

• submit an application in-time via the online portal, including a research plan to a calibre expected of a UNSW PhD candidate.

10. The Respondent contends ‘These requirements do not impose a substantially higher burden on one sex compared to the other’.

11. Professor Salim was beyond her supervisory capacity when she entered into a conversation with the Applicant. Professor Salim was advised by her Head of Department that she could not supervise any new candidates.

12. The Respondent submits that the Applicant’s application for a PhD was not accepted because it was ‘incomplete (her research plan was not of the PhD applicant standard, and she did not have a supervisory team in place).’ After the Applicant submitted a research plan via the online system on 9 October 2024, she was advised that her application had been moved to Term 2, 2025.

13. On 2 November and 19 December 2024, Professor Salim advised the Applicant that she was unable to supervise her because of capacity limits. On 12 December 2024, the Respondent advised the Applicant that it was not possible to offer her a place for Term 1 2025, because ‘supervision cannot be provided in [her] nominated research area’.

14. In reply to the Respondent’s comments, the Applicant maintains that she relied upon representations from Professor Salim that the Professor could take on additional students if she wrote ‘a super long justification’. However, Professor Salim withdrew her offer on the basis that the Applicant had been a victim of crime and, in this situation ‘Professor Salim couldn’t be bothered’. Alternatively, even if Professor Salim was incorrectly under the initial impression that she was free to supervise the Applicant, and her decision to withdraw was based on her being told that she could not do so, the Applicant should still be compensated.

15. On 23 April 2025, ADNSW declined the complaint pursuant to s 92(1)(a)(i) of the Anti-Discrimination Act 1997 (NSW) (‘the Act’) on the basis that the President was satisfied that the complaint was lacking in substance.

16. The President’s reasons for her decision were as follows:

‘The complainant alleges that she was not offered a place in the PhD program because Professor Salim withdrew her offer to supervise her when she revealed that she was a victim of gendered violence (sexual assault). As being a victim of gendered violence is not a ground under the Anti-Discrimination Act (NSW) (the ‘ADA’), the complaint is posed as one of sex discrimination.

Section 24(1A) of the ADA states that ‘something is done on the grounds of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex’. Section 24(1B) uses the example of pregnancy, stating that ‘the fact that a woman is or may have been pregnant is a characteristic that appertains generally to women’.

To support her allegation of sex discrimination, the complainant must demonstrate that:

(i)   being a victim of sexual assault is a characteristic that appertains generally, or is generally imputed to, women;

(ii)   because she is female, she is less likely to be able to comply with the respondent’s requirements for entry into its PhD program than male applicants; and

(iii)   these requirements are unreasonable in the circumstances.

It would seem unlikely that the complainant could support her allegation of sex discrimination for the following reasons:

1   As men are also victims of sexual assault, being a victim of such is not a characteristic that appertains generally or is generally imputed to women.

2   As noted by the respondent, the requirements to be offered PhD candidature are having supervision and having an on-time application including a research plan, and ‘these requirements do not impose a substantially higher burden on one sex compared to the other’.

3   The requirements do not appear to be unreasonable.

While the complainant’s frustration and disappointment that supervision initially offered was withdrawn are understandable, her complaint of sex discrimination lacks substance.’

17. At the Applicant’s request, ADNSW referred the complaint to the Tribunal pursuant to s 93A of the Act. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed.

18. A hearing on the question of whether leave ought to be granted by the Tribunal took place on 25 June 2025 by AVL. The Applicant provided the Tribunal with a bundle of written submissions and evidence and made oral submissions. The Respondent opposed leave being granted and provided the Tribunal with written and oral submissions.

19. I explained to each of the parties at the hearing the nature of the leave hearing and what was required of an application under s 96 of the Act. I outlined to the participants what constituted sex discrimination in education and victimisation with reference to the relevant provisions of the Act. I explained that the Applicant would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 38 (‘Jones’); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 (‘Ekermawi’). I explained that the Tribunal would accept the evidence provided in this application at its highest for the purposes of determining whether leave ought to be granted.

20. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

Legal principles

21. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

22. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

23. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.

24. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

25. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones at [58]; Ekermawi at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

26. In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant’s evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).

27. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Sex discrimination in education

28. Section 24 of the Act provides:

‘What constitutes discrimination on the ground of sex

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

(a) on the ground of the aggrieved person's sex or the sex 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 of the opposite sex or who does not have such a relative or associate of that sex, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, 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.

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

(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.

(1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act,

"breastfeeding" includes the act of expressing breast milk.

(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs--

(a) are a woman who is pregnant and a man, or

(b) are not of the same marital or domestic status, or

(c) are a woman who is breastfeeding and a man.’

29. Section 31A provides for the unlawful conduct of an education authority to discriminate against a person on the ground of sex, which provides:

‘31A Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of sex--

(a) by refusing or failing to accept the person's application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex--

(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of--

(a) a private educational authority, or

(b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant.

(4) The admission into any such school, college, university or other institution of a transgender person as referred to in Part 3A who identifies with the sex of persons for whom the school, college, university or other institution is conducted does not, for the purposes of subsection (3) (b), affect its status as a school, college, university or other institution conducted solely for students of the same sex.’

30. It is not in dispute that the Respondent is an educational authority as defined by s 4 of the Act.

31. Section 50 of the Act states:

‘50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has--

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.’

32. In oral submissions the Applicant also raised, which was not raised before the President of ADNSW, that she was discriminated by the Respondent on the basis of an employment relationship. I refuse to deal with that complaint for two reasons. Firstly, it was not raised as a complaint before the President of ADNSW. Even if it was, the Applicant was clearly not in any employment relationship with the Respondent and a claim of sex discrimination in work is not available to the Applicant. On that basis I have only dealt with this complaint for leave upon the matters which were before the President of ADNSW.

My consideration

33. Section 4A of the Act requires that sex does not have to be the dominant or substantial reason for the less favourable treatment as long as it is a reason.

34. In order to substantiate the complaint the Applicant would have to prove that:

1. the Respondent treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a male employee; (differential treatment) and

2. a reason for the treatment was that she is a woman (causation).

35. When considering these questions the Tribunal should ask in addressing the causation element of direct discrimination, is the person’s sex at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may be relevant. As with the vast majority of complaints of discrimination, the causal link between the applicant’s sex and the alleged treatment would have to be established by inference from the primary facts; Seltsam Pty Limited v McGuinnes [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 70 are relevant:

‘…

(b)   an inference must be reasonably drawn on the basis of the primary facts;

(c)   an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

(d)   a fact relied on as a basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility; it must be one of ‘probable connection’;

(e)   the inference must be a logical one, not a supposition;

(f)   an inference cannot be made where more probable and innocent explanations are available on the evidence.’

36. The Applicant remains with the evidential burden to prove discrimination. A respondent has no obligation to explain the reasons for their conduct once it has been established that there has been less favourable treatment.

Allegation 1 – the Applicant being afraid to be in Australia.

37. The first allegation is that Professor Salim allegedly said on 30 October 2024 that if the Applicant was afraid to be in Australia, then she could not do her PhD in Sydney.

38. The allegation is denied by the Respondent. Even if Professor Salim did say this, which I have not found as being established, it would not amount to sex discrimination. That is because I do not accept the Applicant’s argument that she had been treated less favourably than the Respondent would have treated a male in the same circumstances.

37. In my view, a Tribunal hearing this matter would be unlikely to draw any inference that the Applicant’s sex was a reason.

38. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 2 – whether the Sydney campus had resources to manage [her] vulnerability as a target of stalking, in instances where local police have no jurisdiction.

41. The Applicant alleges that in a discussion and a follow up email dated 31 October 2024, she asked Professor Salim if the Sydney campus had ‘the resources to manage [her] vulnerability as a target of stalking, in instances where local police have no jurisdiction’.

42. I make similar findings with respect to allegation 1. That is, the Applicant has not established that the Respondent treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a male candidate for the PhD and a reason for the treatment was that she is a woman.

43. In my view, a Tribunal hearing this matter would be unlikely to draw any inference that the Applicant’s sex was a reason.

44. This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 3 – Professor Salim retracted the offer of supervision ‘due to her status as a victim of gendered violence’. Professor Salim requested the Applicant to do extra work on a research plan after agreeing to supervise her, which she could not do because she was dealing with a sexual assault matter and resulting housing instability.

45. I find there is no likely evidence that the Applicant was treated less favourably in the same circumstances, or in circumstances which are not materially different, than it treated or would have treated a male student. There is no evidence that women are only victims of sexual violence. To the contrary, sexual violence can and does occur to people of all sexes. There is no evidence that the Applicant was treated differently because she is a woman.

46. I am not satisfied that a Tribunal hearing this matter would find that the Applicant was treated any differently to which another student may have been treated because she is a woman. The allegation lacks merit and it would not be fair or just for it to proceed.

47. In conclusion, I am not satisfied that the Applicant has satisfied that it would be fair or just for the complaint to proceed.

48. To prove victimisation the Applicant would have to prove that:

1. she did one or more of the things listed in s 50 (a) – (d) of the Act, which I will refer to as the “trigger”;

2. the Respondent subjected her to a detriment; and

3. the detriment was on the ground that the Applicant did one of the things listed in s50 (a) – (d) of the Act, which I will refer to as “causation”: see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

Trigger

49. There is no dispute that the Applicant made a complaint or complaints to the ADB against the Respondent, in relation to her alleged treatment at UNSW. This would amount to a “trigger” for the purposes of s 50(1)(a) of the Act.

50. However, the evidence does not include any detriment. This is because the applicant’s claim of alleged unlawful discrimination relates to her not being able to enrol in the PhD course, which occurred before the complaint to ADNSW. I am also not satisfied that the evidence satisfies a claim of victimisation for the purposes of the Act.

Order

1. Leave is refused for the Applicant’s complaint of sex discrimination and victimisation to proceed.

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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: 19 November 2025