Hollows v Macquarie University

[2009] NSWSC 820

CITATION:	Hollows v Macquarie University [2009] NSWSC 820
HEARING DATE(S):	7 & 19 May 2009
JUDGMENT DATE :	20 August 2009
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	(1) The proceedings are dismissed. (2) The plaintiff is to pay the defendant’s costs.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - Application under rule 13.4(1) for summary dismissal – whether pleading discloses reasonable cause of action – plaintiff seeks review of refusal of leave by the Administrative Decsions Tribunal – pleading reveals no reasonable cause of action – ADMINISTRATIVE LAW - whether error on face of record – whether jurisdictional error – whether tribunal member biased – claims manifestly unarguable – proceedings summarily dismissed
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
PARTIES:	David Hollows (Plaintiff) Macquarie University (Defendant)
FILE NUMBER(S):	SC 11304/09
COUNSEL:	In Person (Plaintiff) S. Blount (Defendant)
SOLICITORS:	Nicholas Heinecke (Macquarie University) (Defendant)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	081113
LOWER COURT JUDICIAL OFFICER :	Magistrate Hennessy
LOWER COURT DATE OF DECISION:	6 February 2009

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

20 AUGUST 2009

11304/2009 DAVID HOLLOWS v MACQUARIE UNIVERSITY

JUDGMENT

1 HER HONOUR: David Hollows was a student at Macquarie University. The course in which he was enrolled was a bridging program which Mr Hollows had to complete before being accepted for the degree of Doctor of Business Administration at Macquarie Graduate School of Management. A requirement of the program was to write a supervised research paper. Mr Hollows’ supervisor was Dr Steven Segal.

2 On 24 June 2008, Mr Hollows made a written complaint to the Anti-Discrimination Board of New South Wales alleging that Dr Segal had discriminated against him on the grounds of race by failing adequately to supervise his research paper. On 25 July 2008, Mr Hollows lodged a further written complaint with the Anti-Discrimination Board alleging that the University had discriminated against him on the grounds of disability when the Dean of Students allegedly told him that he should abandon his studies because he is an insulin-dependant diabetic.

3 A delegate of the President of the Anti-Discrimination Board declined the complaints under s 92(1) of the Anti-Discrimination Act 1977 on the basis that she was satisfied as to each complaint that it was lacking in substance. Mr Hollows then gave notice pursuant to s 93A of the Act requiring the President to refer the complaints to the Administrative Decisions Tribunal.

4 Pursuant to s 96(1) of the Act, a complaint referred to the Tribunal in those circumstances may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. On 6 February 2009, the Tribunal gave a decision refusing leave for each complaint to be the subject of proceedings before the Tribunal.

5 By summons filed 9 March 2009, Mr Hollows has brought an “appeal” against that decision. The University now seeks to have the proceedings summarily dismissed pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 on the basis that no reasonable cause of action is disclosed.

6 There is no statutory right of appeal from a decision of the Tribunal refusing leave under s 96(1). The Administrative Decisions Tribunal Act 1997 does not confer any right of appeal to this Court except from a decision of the Appeal Panel. Under s 96(4) of the Anti-Discrimination Act, a decision of the Tribunal refusing leave under s 96(1) cannot be the subject of an appeal to an Appeal Panel. Accordingly, the proceedings as presently constituted are plainly liable to be dismissed.

7 The University very properly acknowledged, however, that the Court’s supervisory jurisdiction could be invoked to review the decision for jurisdictional error. Section 122 of the Administrative Decisions Tribunal Act expressly acknowledges that the Court’s power to review decisions of the Tribunal in the exercise of that jurisdiction is not affected by the Act. Pursuant to s 69(3) of the Supreme Court Act 1970, the Court’s supervisory jurisdiction extends to decisions that entail error of law on the face of the record.

8 On that basis, the Court admitted an affidavit of Mr Hollows setting out the grounds on which he would seek judicial review of the decision and the hearing of the summary dismissal application proceeded on the basis that those were the grounds on which Mr Hollows seeks to impugn the decision. It is, accordingly, necessary to consider whether any of those grounds discloses an arguable claim for prerogative relief.

9 The first ground identified by Mr Hollows is “the decision was unjust”. It is doubtful whether, so formulated, that is a ground for judicial review. In any event, the matters identified by Mr Hollows in his affidavit in support of that contention disclose no arguable ground of review.

10 First, Mr Hollows complains that the decision “made a mockery of justice by confusing the applicant with the defendant”. The basis for that complaint is an observation made by the Tribunal that it was Mr Hollows, not Dr Segal, who was prone to make comments about race. The Tribunal stated:

“Other than a comment attributed to Dr Segal about Israel being prepared to bomb Iran, there is no evidence of Dr Segal making any comment about race whatsoever. Even if that comment was made, it does not suggest that Dr Segal is prejudiced against Iranians. It was Mr Hollows, not Dr Segal, who regularly made comments about race. He described Dr Segal as a South African white Jew ‘who might have come to Australia after the fall of Apartheid in South Africa’.”

Nothing in those remarks suggests that the Tribunal misunderstood the task before it. There is manifestly no substance in that contention as a ground for judicial review.

11 Otherwise, the matters identified under the first ground amount to complaints as to the Tribunal’s assessment of the evidence in support of the findings of fact made. As was explained to Mr Hollows during the hearing, the Court’s supervisory jurisdiction does not extend to re-determining questions of fact.

12 The second ground identified by Mr Hollows is “the decision denies proper hearing of my case”. Two complaints were made under this ground. First, Mr Hollows complains that the Tribunal denied him the opportunity of having his case heard by not considering all the material, including “the fifty pieces of evidence” attached by Mr Hollows to his twenty-seven pages of submissions. This ground is misconceived. It is based on Mr Hollow’s perception that the Tribunal refused to receive further material from him when considering his application for leave under s 96(1). In fact, the decision discloses that the Tribunal did consider that material.

13 Mr Hollows’ complaint derives from an observation made at the outset of the reasons for decision where the Tribunal said:

“Mr Hollows cannot seek to expand or amend his complaint unless leave is granted for him to proceed with the complaint as referred”.

14 In the following paragraph, however, the Tribunal stated:

“The report from the President of the ADB contains numerous emails and memoranda between Mr Hollows and employees of the University and between employees of the University together with both Mr Hollows and the University’s interpretation of that material. I have considered all that evidence plus the most recent material filed by Mr Hollows following an application he made under the Freedom of Information Act 1989.”

15 Mr Hollows submitted, in effect, that both statements cannot be true. That submission is, I think, based on a misconception as to the meaning of the first statement, which was no more than an observation that the complaint in respect of which leave was sought was the complaint made to the Anti-Discrimination Board and that no question of expansion of the terms of the complaint could properly arise unless leave had first been granted in respect of the hearing of that complaint. It is clear from the second statement set out above that the Tribunal had regard to all of the evidence put before it by Mr Hollows.

16 The second complaint under ground 2 is that the decision denies a proper hearing of the case because it did not allow the case to be heard by the Tribunal. That, of course, was the very question raised for the Tribunal’s determination. The Act contemplates a filtering process - there is no automatic right to a hearing by the Tribunal once a complaint has been declined under s 92 (1). In my view, the matters identified under ground 2 are manifestly unarguable.

17 The final ground of review identified by Mr Hollows is that the decision maker was biased. Mr Hollows alleges that, on her way out of the hearing room, the Tribunal member said, abruptly and angrily “You interrupted me”. He says that he did not get an opportunity to apologise, as she left immediately after that comment. Mr Hollows stated that he has no doubt that the purported interruption made the Tribunal biased against him.

18 Since this is an application for summary dismissal, it is appropriate to proceed on the assumption that Mr Hollows would be able to establish that the Tribunal member conducted herself in that way. Assuming the correctness of that contention, I do not think it would be open to the Court to conclude that the Tribunal was biased against Mr Hollows on that basis alone.

19 In his oral submissions, Mr Hollows indicated that the bias allegation is also based on the contents of the decision. He relied on the Tribunal’s statement (set out above) that it was Mr Hollows, rather than Dr Segal, who was prone to making remarks about race. He further stated that the decision discloses selectivity and an effort on the part of the Tribunal to construe all of the evidence in a fashion adverse to Mr Hollows.

20 That submission is not borne out upon an examination of the decision. In my view, the perception held by Mr Hollows that the Tribunal member was biased against him has no objective foundation.

21 Accordingly, it is my view that, even if Mr Hollows were to amend his summons so as to seek judicial review of the Tribunal’s decision on the grounds set out in his affidavit, the application would still be manifestly hopeless. I am satisfied that the proceedings should be dismissed under rule 13.4.

22 Orders

(1) The proceedings are dismissed.

(2) The plaintiff is to pay the defendant’s costs.

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