Harding v Vice Chancellor, University of New South Wales (EOD)

[2002] NSWADTAP 36

Appeal Panel

CITATION:	Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36
PARTIES:	APPELLANT Kathleen Harding RESPONDENT Vice Chancellor, University of New South Wales
FILE NUMBER:	029001
HEARING DATES:	20/02/02
SUBMISSIONS CLOSED:	04/26/2002
DATE OF DECISION:	10/24/2002
DECISION UNDER APPEAL:	Harding v Vice Chancellor, University of New South Wales [2001] NSWADT 205
BEFORE:	Latham M - DCJ (Deputy President); Loukas C - Judicial Member; Lau L - Member
CATCHWORDS:	costs - no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	001045
DATE OF DECISION UNDER APPEAL:	12/07/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Kitt v Tourism Commission & Ors (1987) EOC 92-196 Bogie v University of Western Sydney (1990) EOC 92-313 Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25 Coleman v Commissioner of NSW Police Service [2001] NSWADT 34 Coleman; Citadin Pty Ltd (No 2) v Eddie Azzi Aust Pty Ltd & General Pants Co Pty Ltd [2001] NSWADTAP 31 Brooks Maher v Cheung [2001] NSWADT 18
REPRESENTATION:	APPELLANT In person RESPONDENT J Oakley, barrister
ORDERS:	1 Appeal dismissed; 2 The Appellant to pay the Respondent's costs on the hearing of the appeal; 3 If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987.

1 This is an appeal by Ms Harding against a decision of the Tribunal delivered on the 7 December, 2001 dismissing her complaint against the Vice Chancellor of the University of New South Wales. The complaint as characterised by the Tribunal was one which was based upon alleged discrimination by the University of New South Wales on the grounds of Ms Harding’s physical handicap and intellectual handicap. The words “as characterised by the Tribunal” are deliberately chosen. As was observed by the Tribunal in the course of its decision, the task of ensuring that every aspect of the complainant’s case had been put before the Tribunal was rendered difficult by the fact that the complainant was unrepresented and by the ostensible complexity and the volume of material presented to the Tribunal by the complainant in a seemingly random way. (see paragraphs 9,16, 17, 89, 107, 121, 133 of the Tribunal’s decision).

2 It must be stated at the outset that the Panel has experienced the same difficulty in the terms of the Appellant’s presentation of her case on appeal. The Appellant was once again unrepresented and despite attempts by the Panel on a number of occasions to focus her attention on the need to establish errors of law on the part of the Tribunal below, the Appellant’s submissions did no more than traverse the facts. The Panel recognises the difficulty inherent in the conduct of an appeal by an unrepresented lay person. Be that as it may, the Panel’s jurisdiction to set aside the decision of the Tribunal below is only enlivened by the establishment of an error of law by that Tribunal (section 113 of Administrative Decisions Tribunal Act 1997 (the ADT Act)).

3 Further to the observations made above, the Panel notes that the Tribunal’s decision extends over 141 paragraphs and is divided into the following sections, namely the background to the referral of the complaint from the Anti Discrimination Board to the Tribunal (paragraph 1 to 8), an analysis of the state of the evidence ( paragraphs 9 to 18), a review of the Appellant’s academic history at the University (paragraphs 19 to 83), a reference to the applicable legislative provisions (paragraphs 84 to 87), an analysis of the evidence and the law with a view to determining whether the Appellant suffered from a physical impairment and/or an intellectual impairment (paragraph 88 to 106), an examination of the Appellant’s complaint of unlawful indirect discrimination (paragraph 107 to 120), an analysis of the Appellant’s claim of direct discrimination (paragraph 121 to 139), and the findings of the Tribunal (paragraphs 140 and 141). It is not necessary for the purposes of this appeal to revisit the entirety of what was an extremely thorough and conscientious examination of the evidence placed before the Tribunal in whatever form. A reading of the decision confirms, however, that every consideration was extended to the Appellant in recognition of her status as an unrepresented litigant.

4 The following alleged errors of law by the Tribunal were distilled by the Panel from the Appellant’s written and oral submissions.

5 The Appellant claimed that the Tribunal had erred in essentially making an alleged contradictory finding, that is that the Appellant was suffering from a physical impairment but not suffering from an intellectual impairment. The Appellant sought to impugn the Tribunal’s finding by an assertion that her condition (primary hypothyroidism following a thyroidectomy) necessarily gave rise to both a physical and an intellectual impairment. In other words, the Appellant claimed that it was not possible, as a result of her physical impairment, not to have a concomitant intellectual impairment.

6 The Tribunal’s reasoning in relation to the question of intellectual impairment appears at paragraphs 102 to 105 of the decision. Before passing to an examination of that reasoning process, it is appropriate to review what the Tribunal said in part at paragraph 89 of the decision;-

“As the Tribunal has observed the status of the medical evidence was not comprehensive. No doctor or other medical expert was called by either party. The Tribunal is required to discern the nature of the applicant’s medical condition from correspondence and from the applicant’s evidence. The applicant was not crossed examined in relation to her evidence nor were any objections made to the Tribunal having access to the medical correspondence. The applicant stated that she considered that her medical status was unique. It is not clear to the Tribunal on what standard the applicant has based her view.”

7 Further at paragraph 92 of the decision the Tribunal said “the Tribunal is not able from the evidence to comment on the applicant’s claim of uniqueness in regard to her medical circumstances. However, the Tribunal is required to make a determination as to whether those medical circumstances bring her within the definitions of impairment and handicap that are set out in the definition provisions of the Act.”

8 Section 4(1) of the Anti Discrimination Act (as it was prior to 1998) defined "intellectual impairment" as "any defect or disturbance in the normal structure and functioning of the person's brain, whether arising from a condition subsisting at birth or from illness or injury". It also defined "intellectually handicapped person" as "a person who, as a result of disabilities arising from intellectual impairment, is substantially limited in one or more major life activities."

9 In terms of the definition of intellectual impairment, the Tribunal applied the definition as it had come to be accepted since the decision in Kitt -v- Tourism Commission & Ors. (1987) EOC 92-196. That decision is authority for the proposition that any defect in either the normal structure or the normal functioning of the brain constitutes a defect in its “normal structure and functioning”. At paragraph 103 of the decision the Tribunal indicated that the Appellant’s evidence of her lack of concentration and her lack of ability to study went some way towards demonstrating that “there may have been a disturbance in the functioning of her brain”. However, the Tribunal went on to say in the balance of that paragraph that, in effect, the Appellant had not discharged the evidentiary onus upon her to satisfy the Tribunal of the relevant criteria in the definition of intellectual impairment.

10 The Appellant maintains that the Tribunal has fallen into error and that the manifestation of that error is a disregard of a piece of correspondence which was before the Tribunal in evidence. That correspondence was under the hand of T.S. Reeve and dated the 2nd of August, 1989. The correspondence was also seen by the Panel and it contains the following statement :-

“Mrs. Kathleen Harding has been reviewed regarding thyroid function she having undergone thyroidectomy in 1987. It is my understanding that she did University examinations last year with proven hypothyroidism. I have not seen these results but would make the statement that if she was hyperthyroid at that particular time by laboratory tests that she should not be expected to perform normally in examinations as hypothyroidism has a significant effect on memory and general well being.”

11 It should be observed at this stage that the Tribunal did in fact make reference to Professor Reeve’s letter at paragraph 129 of the decision when dealing with the subject of direct discrimination. Be that as it may, it is true to say that the Tribunal did not refer directly to it when dealing with the Appellant’s qualification as an intellectually impaired person.

12 The Appellant also placed reliance upon the Tribunal’s alleged misunderstanding of a pathology report of the 14 August 1989 which was also before the Tribunal and which was also placed before this Panel. The Tribunal’s alleged misunderstanding arose out of a poor photocopy which was originally supplied to the Tribunal. We have been referred to the transcript of the proceedings before the Tribunal where some discussion occurred in relation to whether a word in that report is “prior” or “primary” (it is in fact “primary”). It is the Appellant’s submission that the Tribunal’s alleged misunderstanding of the pathology report of the 14 August 1989 lead it to disregard Dr. Reeve’s opinion set out above, as expressed in his letter of the 2 August 1989.

13 It is not clear to the Panel how this alleged misunderstanding can be said to have infected the Tribunal’s decision with respect to the Appellant’s alleged intellectual impairment. It seems unlikely that the Tribunal did disregard Dr. Reeve’s opinion, given that the Tribunal expressly made reference to it at paragraph 129. In any event, the thrust of the Respondents submissions below was that the evidence at its highest was insufficient to establish an intellectual impairment at the relevant time. This submission was ultimately accepted by the Tribunal at para 105. The Respondent to the appeal repeated that submission before the Panel. The point was made with some force that the opinion expressed by Dr. Reeve was a qualified one, that is, that in so far as the Appellant may have been hypothyroid at a particular time by reference to laboratory tests, then some effects upon her memory and general well-being might be expected. The pathology report of the 14th of August 1989 does not establish that the Appellant was suffering from “primary hypothyroidism” at the time of her examinations, that is in late November 1988. The pathology report indicates that the specimen for the purposes of the report was taken on the 18 October, 1988, that is, at least one month prior to the relevant date.

14 Against this background, the Panel is of the view that the finding by the Tribunal in relation to the insufficiency of the evidence on the issue of intellectual impairment was one which was open to it. A complainant is required to establish to the Briginshaw standard that the elements of the complaint have been made out. It is crucial to the case of any complainant alleging discrimination on the ground of an intellectual impairment, as defined, that he/she persuade the tribunal of fact that such an impairment existed at the relevant time. As His Honour Justice Dixon observed in Briginshaw, "the truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found." Clearly, the Tribunal below was not actually persuaded in this respect and this Panel can discern no error of law in its approach to this issue.

15 In any event, it is clear from the Tribunal’s decision that even if the Tribunal was satisfied that the Appellant came within the definition of intellectual impairment, the Appellant had not established to the Tribunal’s satisfaction that such an impairment “substantially limited her in one or more major life activities”. It follows that whatever errors the Tribunal is alleged to have made in its fact finding function with respect to intellectual impairment (and we do not accept that any error was made), those alleged errors are not determinative of this appeal.

16 The Appellant maintains that the Tribunal did misapply itself with respect to the definition of intellectually handicapped person. The Appellant’s submission is in effect that the test was applied incorrectly and/or the test itself is wrong in law. The Tribunal approached the question whether or not the Appellant was substantially limited in one or more major life activities by reference to the decision of the Tribunal in Kitt and in Bogie -v- University of Western Sydney (1990) EOC 92-313. After canvassing the reservations expressed by the Tribunal in Bogie with respect to the application of a wholly subjective test as suggested by the remarks in the Kitt, the Tribunal went on to say that it “would share the same hesitation about adopting a subjective test to the words in the definition ‘is substantially limited in one or more major life activities’. This Tribunal would prefer to examine the matter objectively.” (paragraph 104) In the absence of any evidence before the Tribunal which would allow it to make an objective (whether wholly or partially) assessment in this regard, the Tribunal was not satisfied that the Appellant was at the relevant time an intellectually handicapped person.

17 The Panel is not persuaded that the Tribunal applied the test incorrectly or that the test itself is wrong in law. Some intellectual impairments are of such a profound nature that substantial limitations in one or more major life activities are self-evident. By way of example, severe cerebral palsy resulting in the loss of all motor skills substantially limits the impaired person in many major life activities. In such cases, the limitations are objectively demonstrated by the physical condition of the complainant. At the other end of the spectrum, a petit mal form of epilepsy may not limit the sufferer to the requisite degree in any major life activity ; whether it does so would require some evidence before the Tribunal, which was capable of demonstrating how and to what extent the impairment impacted upon a given major life activity. Both the limitation and its extent would not be readily apparent to a tribunal of fact. The fact of substantial limitation, not the mere assertion of it, must be established by the complainant. In the instant case, the Tribunal (and the Panel) was in unfamiliar territory ; the Appellant claimed a wholly unique pathology. In the absence of expert evidence, there was no objective material which could persuade the Tribunal of the Appellant’s claim.

18 Finally the Appellant alleges that the Tribunal erred in its application of variable comparators when determining whether the Appellant suffered direct discrimination on the ground of physical impairment/handicap.

19 At paragraph 125 to 127 the Tribunal canvassed the relevant authorities and came to the conclusion (at paragraph 128) that the answer to the question of direct discrimination of the Appellant lay in determining whether the treatment by the University of the Appellant was different to the treatment by the University of persons who had made similar applications, those persons not being physically handicapped. We can discern no error in the Tribunal’s approach. It was in accordance with established law and practice.

20 The Appellant was given a further opportunity to address the identified shortcomings in her appeal and the question of costs by way of written submissions to be filed on or before 28 March 2002. She wrote to the Tribunal on 25 March 2002 indicating her intention not to file any further submissions. Accordingly, the Panel has determined this appeal, and the question of costs, in the absence of any contribution from the Appellant, other than what was presented at the hearing of the appeal.

21 The appeal is dismissed.

Costs

22 Section 114 of the Anti Discrimination Act 1977 (the AD Act) establishes a presumption in favour of each party bearing its own costs, subject to circumstances that justify the Tribunal making an order as to costs. That provision appears in Part 9, Division 3 of the Act, headed "The functions of the Tribunal". Its position in the Act suggests that it governs the issue of costs following a hearing at first instance, although it remains true to say that an Appeal Panel is a constituent part of the Tribunal : see Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25.

23 Section 88(1) of the ADT Act provides that "subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs." It is immediately apparent that, under this subsection, special circumstances, as opposed to circumstances simpliciter, are required to justify an order for costs.

24 Subsection 3 of s 88 provides that "the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs."

25 It is arguable that the words "in relation to proceedings for an original decision" do not include an appeal from a decision of the Tribunal in the Equal Opportunity Division. Whilst a hearing before the Tribunal into a complaint of discrimination may be characterised as proceedings for an original decision, an appeal from such a decision is arguably more accurately described as proceedings arising out of proceedings for an original decision. Subsection 3 would appear to preserve the power of the Tribunal in the Equal Opportunity Division, pursuant to s 114 of the AD Act, to award costs at first instance.

26 Returning to s 88(1), the effect of the phrase "subject to ... any other Act" has been interpreted by the Tribunal to mean, in effect, that s 114 of the AD Act must be qualified by the language of s 88 of the ADT Act (see Coleman v Commissioner of Police NSW Police Service [2001] NSWADT 34) but that, in any event, given the way in which the Tribunal has interpreted and applied s 114, there is essentially no meaningful difference between the respective tests (see Coleman ; Citadin Pty Ltd (No 2) v Eddie Azzi Aust Pty Ltd & General Pants Co Pty Ltd [2001] NSWADTAP 31).

27 The Respondent seeks an order for costs on the appeal. The submissions filed by the Respondent in support of the application rely upon s 88 of the ADT Act and set out a number of "special circumstances" which warrant an order for costs. Whilst there is some doubt about the relevant test, we are nonetheless satisfied that at least two of the circumstances identified by the Respondent (see below) constitute "special circumstances" which warrant an order for costs in this appeal. "Special circumstances" are those which take the matter out of the ordinary course of events, in the conduct and hearing of the appeal : see Brooks Maher v Cheung [2001] NSWADT 18. While it is not possible to enumerate every special circumstance which would justify an order for costs, the example given by the Tribunal in Brooks Maher, that is, misconceived, vexatious or insubstantial applications by a party, is one with which we agree. Therefore, regardless of the threshold for an award of costs on an appeal from the Tribunal in the Equal Opportunity Division, the Respondent succeeds on the application.

28 The special circumstances relied upon by the Respondent are :-

a) the Appellant's notice of appeal did not provide any details of any ground of appeal and a request from the Respondent for particulars was ignored.

b) the Appellant persisted in canvassing the merits of the decision below, despite repeated explanations from the Panel that the merits of the decision could only be entertained after an error of law had been established.

c) the Appellant impugned the bona fides of the Tribunal below and made serious and baseless allegations of professional misconduct against the Respondent's legal representative during the hearing of the appeal.

d) the conduct of the appeal by the Appellant has incurred costs for the Respondent which it should not have incurred.

29 The Panel is not disposed to accept a) as a special circumstance justifying an order for costs. Some leeway is warranted in the case of unrepresented appellants who may not be in a position to comply with the technicalities of a notice of appeal. The Panel recognises that this places a respondent to an appeal in an invidious position, but while it may unfortunately give rise to some difficulty for the respondent in preparing for an appeal, it does not of itself call for the visitation of a penalty on such an appellant.

30 The Panel does however take a different view of the Appellant's conduct of the appeal as outlined in b) and c) above. For a considerable part of the appeal, the Panel was obliged to listen to a tape of the Respondent's counsel's submissions to the Tribunal below, on the basis that it would reveal professional misconduct to the Panel. Not only did the tape fail to demonstrate any misconduct, it in fact demonstrated to the Panel that the Respondent's counsel acquitted herself entirely consistently with the highest standards of the Bar. She did not mislead the Tribunal below, she was unfailingly polite to the Appellant even though that courtesy was not returned and any failure to understand the Appellant's case below or on the hearing of the appeal was undoubtedly a product of the absence of meaningful particulars.

31 The Appellant could not have misunderstood repeated attempts by the Panel to confine the Appellant to alleged errors of law. In effect, the Appellant would not be diverted from her attack upon the Tribunal's fact-finding process. She simply disagreed with those findings and maintained that the Tribunal should have found otherwise. As a result, the Respondent was put to the expense of the preparation of, and attendance at, an appeal hearing lasting a day, which had no real prospect of success.

32 Accordingly, the orders of the Panel are :-

1. Appeal dismissed

2. The Appellant to pay the Respondent’s costs on the hearing of the appeal.

3. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987.