JCN v James Cook University
[2023] QCAT 538
•8 December 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
JCN v James Cook University & Ors [2023] QCAT 538
PARTIES:
JCN
(applicant)
v
JAMES COOK UNIVERSITY
(first respondent)
PROFESSOR RICHARD MURRAY
(second respondent)
DR RANJIT RASALAM
(third respondent)
MS LAURA-ANNE BULL
(fourth respondent)
APPLICATION NO/S:
ADL005-20
MATTER TYPE:
Anti-discrimination matters
DELIVERED ON:
8 December 2023
HEARING DATES:
19, 20 and 21 April 2023, 4, 5 and 30 May 2023, 2 and 13 June 2023 and 3 July 2023
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. The complaint lodged by the Applicant on 23 July 2019 against each of the Respondents is dismissed.
2. Any party seeking an order for costs must file with the Tribunal, and give to the other party a copy of, written submissions as to costs, no longer than eight (8) pages, within 28 days of the date of the Decision.
3. If written submissions as to costs are filed pursuant to order number 2, the other party must file with the Tribunal, and give to the other party a copy of, written submissions in reply, no longer than eight (8) pages, within 28 days of receipt of the written submissions.
4. If no written submissions as to costs are filed pursuant to order number 2, there shall be no order as to costs of the proceeding.
5. If written submissions as to costs are filed, the application for costs will be heard and determined on the papers without an oral hearing.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – VICTIMISATION
– where Applicant was studying a medical course offered by First Respondent (university) – where Applicant raised with staff of First Respondent that rumours were circulating within the student cohort about Applicant – where no formal complaint lodged by Applicant – where Applicant approached various students about the rumours – where Applicant suspended from course – where suspension lifted subject to conditions contained in Student Agreement following review by a review panel – where Applicant subsequently wrote a Facebook post demeaning of another student – where Applicant subsequently excluded from course and university – whether Respondents engaged in direct discrimination, indirect discrimination or victimisation against Applicant as prohibited under the Anti-Discrimination Act 1991 (Qld) – where treatment of Applicant concerned an alleged failure to investigate (or properly investigate) the Applicant’s complaints, the Applicant’s suspension, the imposition of conditions under the Student Agreement, and the Applicant’s subsequent exclusion – whether discrimination by Respondents on the basis of the attributes of race and religious belief or religious activity or on the basis of an alleged presumption of an impairment (mental illness) by staff of First Respondent – meaning of ‘presumed’ in s 8(c) of the Act – whether ‘victimisation’ of Applicant
Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 9, s 10, s 11, s 39, s 114, s 123, s 129, s 130, s 131, s 166, s 174A, s 174C, s 204, s 205, s 206, s 208, s 209, s 210
Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Hehir & Anor v Smith [2002] QSC 092
JM v QFG [2000] 1 Qd R 373
Lyons v State of Queensland [2016] 2 Qd R 41
Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways v Gama (2008) 167 FCR 537
Smith v Hehir and Financial Aust Pty Ltd [2001] QADT 11
State of Queensland v Tafao (2021) 7 QR 474
Tafao v State of Queensland & Ors [2018] QCAT 409
Tafao v State of Queensland [2020] QCATA 76Woodforth v State of Queensland [2018] 1 Qd R 289
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondents:
CA Massy of Counsel instructed by Colin Biggers & Paisley Lawyers
Table of Contents
Introduction
Jurisdiction and procedure
The parties and their witnesses
The Applicant and his witness
The Respondents’ witnesses
The burden of proof and evidential issues
The relevant ADA provisions
Consideration of Briginshaw v Briginshaw
The claim of direct discrimination
The threshold issue
The relevant provisions of the ADA concerning direct discrimination
Establishing direct discrimination
Observations on the Applicant’s written submissions
The relevant facts
Events leading up to the Applicant’s suspension
Events from the suspension to the signing of the Student Agreement
Events subsequent to the signing of the Student Agreement
Mr Malawaraarachchi’s statement
The alleged treatment of the Applicant
Dr Rasalam
Dr Wohlfahrt
Ms Ware
Ms Midson
The alleged ‘attributes’
Presumed mental illness?
Impairment
The test for determining whether an attribute is ‘presumed’
The findings in relation to presumed mental illness
Professor Murray
Professor Sen Gupta
Professor McDermott
Dr Harte
Dr Hodge
Dr O’Connor
Characteristic?
The Comparator
Less favourable treatment of the Applicant than the Comparator in the same circumstances?
Alleged failure to investigate
Professor Murray
Dr O’Connor
The suspension
Professor Cocklin
Professor Murray
The Student Agreement and the imposition of conditions
The exclusion
Professor Bull
The Review Panel
Conclusion
Indirect discrimination
Victimisation
The claim against each of Professor Murray, Dr Rasalam and Professor Bull
Relief
Orders
REASONS FOR DECISION
Introduction
This matter involves a complaint brought by the Applicant against the Respondents under the Anti-Discrimination Act 1991 (Qld) (the ADA).
The matter has been referred to the Tribunal by the Queensland Human Rights Commissioner (the Commissioner) in consequence of a complaint lodged by the Applicant on 23 July 2019 (the Complaint).[1]
[1]The Human Rights Act 2019 (Qld) commenced on 1 January 2020 and, in my view, it has no application to the Complaint.
The Complaint concerns the alleged treatment of the Applicant, by the Respondents, during the time that he was enrolled as a student with the First Respondent (JCU) in the Bachelor of Medicine, Bachelor of Surgery degree (the MBBS course).[2]
[2]In 2013, the Applicant commenced studying the MBBS course: Applicant’s statement, [2], [39].
The treatment alleged against the Respondents involved:
(a)a failure to investigate (or properly investigate) complaints made by the Applicant concerning the conduct of other students in relation to rumours that were said to be circulating about the Applicant;
(b)the suspension of the Applicant from the MBBS course (for a period of approximately 11 weeks) in 2018;
(c)the requirement that the Applicant sign a student agreement on 3 August 2018 (the Student Agreement) containing conditions the Applicant was required to comply with upon his return from suspension;
(d)the subsequent exclusion of the Applicant from JCU in 2019.
The Applicant alleges that the treatment the subject of the Complaint amounted to:
(a)direct discrimination under the ADA;[3]
(b)indirect discrimination under the ADA;[4]
(c)victimisation under the ADA.[5]
[3]ADA, ss 9(a), 10.
[4]ADA, ss 9(b), 11.
[5]ADA, ss 129, 130.
As will emerge, the Applicant’s case is factually complicated, involving alleged conduct over a lengthy period of time, and raising for consideration the conduct or actions of various staff members employed by JCU.
Jurisdiction and procedure
The Commissioner referred the Complaint to the Tribunal pursuant to s 166(1)(b) of the ADA.
The Tribunal has the function of hearing and determining the Complaint pursuant to s 174A(a)(iv) of the ADA.
Pursuant to s 174C(1) of the ADA, the Tribunal may exercise the powers conferred on it under the ADA or the ‘relevant tribunal Act’ (in this case, the Queensland Civil and Administrative Tribunal Act 2009 (Qld)).
Section 209 of the ADA provides for the orders that the Tribunal may make if the Complaint is proven.
The Tribunal may make an order dismissing the Complaint (ADA, s 210).
The parties and their witnesses
The Applicant and his witness
The Applicant filed his own statement (exhibit 5) (the Applicant’s statement). The Applicant also filed responses to the affidavits filed on behalf of the Respondents (which responses comprise exhibits 8, 9, 10, 11, 12, 13 and 35). The Applicant was cross-examined at the hearing by Counsel for the Respondents.
The Applicant also filed a statement of Nimath Malawaraarachchi (exhibit 6) (Mr Malawaraarachchi’s statement). Mr Malawaraarachchi was not required for cross-examination.
The Respondents’ witnesses
The Respondents filed affidavits of the following persons:
(a)the Second Respondent (Professor Murray) (exhibit 17) (Murray affidavit);
(b)the Third Respondent (Dr Rasalam) (exhibit 28) (Rasalam affidavit);
(c)the Fourth Respondent (Professor Bull) (exhibit 30) (Bull affidavit);
(d)Professor Christopher Cocklin (exhibit 18) (Cocklin affidavit);
(e)Professor Tarun Sen Gupta (exhibit 19) (Sen Gupta affidavit);
(f)Professor Brett McDermott (exhibit 15) (McDermott affidavit);
(g)Dr Jane Harte (exhibit 31) (Harte affidavit);
(h)Dr Johnathon Hodge (exhibit 21) (Hodge affidavit);
(i)Dr Teresa O’Connor (exhibit 33) (O’Connor affidavit);
(j)Dr Michael Wohlfahrt (exhibit 20) (Wohlfahrt affidavit);
(k)Ms Elizabeth Ware (exhibit 24) (Ware affidavit);
(l)Ms Jodie Midson (exhibit 23) (Midson affidavit).
Professor Cocklin was not required for cross-examination.
Dr O’Connor was required for cross-examination but for the oral reasons given during the course of the hearing, I ruled that Dr O’Connor would not be required to attend for cross-examination in light of an ongoing illness suffered by her.
The other witnesses were cross-examined by the Applicant.
It is not disputed that each of the JCU witnesses was acting within the scope of their employment with JCU at the relevant times.
The burden of proof and evidential issues
The relevant ADA provisions
The ADA makes express provision for the operation of the burden of proof.
By s 204 of the ADA, it is for an applicant to prove, on the balance of probabilities, that the respondent contravened the ADA, subject to the requirements in s 205 and s 206 of the ADA. Section 204 reflects the civil burden of proof.
In a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.[6]
[6]ADA, s 205.
If a respondent wishes to rely on an exemption provided for by the ADA, the respondent must prove, on the balance of probabilities, that the exemption applies.[7]
[7]ADA, s 206.
Consideration of Briginshaw v Briginshaw
The Respondents submit that:[8]
The allegations made against the respondents are particularly serious. Accordingly, the observations of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 are apposite.
(footnote omitted)
[8]Respondents’ preliminary submissions dated 1 June 2023, [6].
The Respondents also rely on the decision in Smith v Hehir and Financial Aust Pty Ltd.[9] In that case, the Member said:[10]
Overall, the complainant has an obligation to prove her case on the balance of probabilities (s.204). It is now clearly established in Australian anti-discrimination law that this burden of proof is subject to the application of the test set out in Briginshaw v. Briginshaw (1938) 60 CLR 336, where the High Court of Australia held that in applying the civil standard of proof, account must be taken of the gravity of the allegations and of the serious consequences to the respondent following any adverse finding. This means that the more serious the allegations are, it may be reasonable to expect a complainant to prove the case beyond a slight difference in probity when weighing the evidence. Allegations of sexual harassment are serious matters. Therefore, the complainant in this case must establish to the satisfaction of the Tribunal that the events as alleged by her occurred, and at a level greater than the merest difference in the balance of probabilities … This can be achieved through the cumulative weight of the evidence in its entirety rather than necessarily weighing the evidence for and against every particular allegation in isolation …
[9][2001] QADT 11.
[10]At p 25.
In Briginshaw v Briginshaw,[11] Dixon J said:[12]
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[11](1938) 60 CLR 336.
[12]At p 362.
In approaching the burden of proof (as provided for by s 204 of the ADA), I respectfully adopt the following observations of Branson J in Qantas Airways v Gama,[13] made in the context of the Commonwealth Racial Discrimination Act, which observations I consider to be also apposite to the position under the ADA:
(a)‘each of the expressions ‘the Briginshaw standard’ and ‘the Briginshaw test’ should be avoided because of its tendency to mislead’;[14]
(b)Dixon J was concerned with ‘the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding’;[15]
(c)Dixon J ‘made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted’ (and ‘the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction’).[16]
[13](2008) 167 FCR 537, French J (as he then was) and Jacobson J generally agreeing, [110].
[14]At [123].
[15]At [125].
[16]At [126].
On this basis, consideration should be given to the nature of the individual allegations of material fact made by the Applicant and the likely consequences which would follow should they be accepted.
The Tribunal is not bound by the rules of evidence and, amongst other matters, must have regard to the reasons for the enactment of the ADA as stated in the preamble.[17]
The claim of direct discrimination
[17]ADA, s 208(1)(a).
The threshold issue
The threshold issue is whether the alleged direct discrimination has occurred in an area in which the activity is governed by the ADA.[18]
[18]This also applies to the claim of indirect discrimination.
One of the purposes of the ADA is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.[19]
[19]ADA, s 6(1).
This purpose is to be achieved by prohibiting discrimination on a ground set out in Part 2 and of a type set out in Part 3 and in an area of activity set out in Part 4, unless a relevant exemption applies.[20] The area of activity relevant to the present case is that of education.
[20]ADA, s 6(2).
Section 39 of the ADA provides:
An educational authority must not discriminate—
(a) in any variation of the terms of a student’s enrolment; or
(b) by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or
(c) by excluding a student; or
(d) by treating a student unfavourably in any way in connection with the student’s training or instruction.
The Respondents accept that JCU was an ‘educational authority’ within the meaning of s 39 of the ADA.[21]
[21]Respondents’ preliminary submissions, [9].
In my view, each aspect of the alleged treatment falls within the scope of s 39.
I consider that:
(a)the alleged failure to investigate (or properly investigate) falls within the scope of s 39(d);
(b)the suspension falls within the scope of each of s 39(a) and s 39(d);
(c)the imposition of the conditions of the Student Agreement falls within the scope of each of s 39(a) and s 39(d); and
(d)the exclusion falls within the scope of, at least, s 39(c).
The relevant provisions of the ADA concerning direct discrimination
‘Discriminate’ is defined in Schedule 1 to the ADA to mean ‘discriminate whether by direct discrimination or indirect discrimination’.
‘Direct discrimination’ on the basis of an ‘attribute’ happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.[22]
[22]ADA, s 10(1).
It is not necessary that the person who discriminates considers the treatment is less favourable.[23]
[23]ADA, s 10(2).
The person’s motive for discriminating is irrelevant.[24]
[24]ADA, s 10(3).
If there are two or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.[25]
[25]ADA, s 10(4).
Section 7 of the ADA sets out a list of the ‘attributes’ in respect of which the ADA prohibits discrimination. The attributes relevant to this case are addressed below.
Section 8 of the ADA extends ‘Discrimination on the basis of an attribute’ to include direct discrimination (and indirect discrimination) on the basis of each of the matters identified in subsections 8(a), (b), (c) and (d).
The Respondents do not rely on any exemption provided for by the ADA.
Establishing direct discrimination
In my view, in a claim of direct discrimination, an applicant must establish the following matters (adopting the essential matters identified in Tafao v State of Queensland & Ors (at first instance)[26] and including some anterior matters):[27]
(a)that the applicant has been subjected to[28] ‘treatment’[29] by a respondent which treatment is alleged to amount to discrimination;
(b)that the applicant:
(i) has, at the time of the treatment, or previously had,[30] an ‘attribute’ (or more than one attribute) set out in s 7 of the ADA;
(ii) further or alternatively, has, at the time of the treatment,[31] a ‘characteristic’ of the type identified in subsections 8(a) or (b) (or both) of the ADA;
(c)further or alternatively to (b) above, that the respondent ‘presumed’ the applicant to have, or to have had at any time, one or more of the attributes set out in s 7;
(d)the circumstances in which the applicant was subjected to the relevant treatment;
(e)that the applicant has been treated[32] ‘less favourably’ than another person[33] without each attribute, presumed attribute, or characteristic is, or would be, treated in circumstances that are the same or not materially different to the circumstances in which the Applicant was subjected to the relevant treatment; and
(f)the attribute, presumed attribute, or characteristic is, at least, a ‘substantial reason’ for the less favourable treatment.[34]
[26][2018] QCAT 409, [33].
[27]Leaving aside the exemptions provided for by the ADA.
[28]Or the respondent ‘proposes to’ subject the applicant to.
[29]I note the respective references to ‘treat’, ‘treats’, ‘treated’ and ‘treatment’ in s 10 of the ADA.
[30]See s 8(d) of the ADA.
[31]I note that subsections 8(a) and (b) of the ADA do not, in terms, use the past tense ‘had’ as adopted in subsections 8(c) and (d) of the ADA. Even if subsections 8(a) and (b) were construed to include a characteristic which the applicant had in the past, I consider that this would make no difference to the outcome in the present case.
[32]Or the respondent proposes to treat the applicant.
[33]Often termed ‘the comparator’.
[34]In my view, on the proper construction of the ADA, s 10(4) picks up the extended application of ‘Discrimination on the basis of an attribute’ provided for by s 8 of the ADA.
In relation to the matters set out at subparagraphs [44](e) and (f) above:
(a)as was said by Holmes JA (as her Honour then was) in Lyons v State of Queensland,[35] in a claim of direct discrimination, ‘the question is whether less favourable treatment occurred on the basis of an attribute’ and ‘it would be a misapplication of s 10 to treat an attribute which merely gives rise to the circumstances in which particular treatment occurs as being the basis for that treatment’;
(b)in JM v QFG, Davies JA said:[36]
By s. 10(1) direct discrimination on the basis of an attribute happens if a person treats or proposes to treat a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. By subs. (4) if there are two or more reasons why a person treats or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The effect of the application of subss (1) and (4) to the present facts, in my view, is that the second respondent directly discriminated against the appellant if and only if a substantial reason for his refusal of treatment was either her lesbian sexual activity or her exclusive lesbianism.
(footnote omitted)
[35][2016] 2 Qd R 41, [32], Gotterson JA and Mullins J (as her Honour then was) agreeing, [49], [50].
[36][2000] 1 Qd R 373, 385, cited with approval in Tafao v State of Queensland [2020] QCATA 76, [73] per Senior Member Howard and Member Traves (as Member Traves then was) (an appeal against this decision was allowed but only on the question of indirect discrimination: State of Queensland v Tafao (2021) 7 QR 474).
In order to address the above matters, given the nature of the Applicant’s case, I consider that the most convenient approach is to address the factual matters in chronological order. Before doing so, I make some observations about the Applicant’s written submissions.
Observations on the Applicant’s written submissions
First, a number of the Applicant’s submissions[37] raise matters which may be relevant if this proceeding involved a merits review of the decisions made on behalf of JCU, for example, the Applicant seeks findings as to the actual existence and extent of the rumours said to have been circulating about him, and the persons who he contends should have been investigated in order to reveal the truth of the Applicant’s complaints. However, this case is not one of merits review. Nor is it one to determine whether the Applicant was afforded procedural fairness by JCU in relation to the treatment of which he complains.[38] I have identified a number of instances where the Applicant seeks findings which I consider to be irrelevant, however, the instances are not intended to be exhaustive.
[37]See, as some examples, the Applicant’s written submissions, [11], [13] (first sentence), [16], [20e], [28], [31], [33a iv], [33b], [47] (third and fourth sentences).
[38]See, e.g., Applicant’s written submissions [59] (first and second sentences).
Second, a number of submissions comprised mere rhetorical questions.[39]
[39]See, e.g., [7], [8], [27], [33p], [49], [63c ii].
Third, a number of the Applicant’s factual contentions are cross-referenced to the evidence. Many are not. In the Respondents’ submissions in reply, the Respondents have identified what they submit are the contentions that are unsupported by the evidence. I have endeavoured to identify the factual basis for the Applicant’s factual contentions, but the Applicant’s failure to cross-reference many factual contentions to the asserted evidence has made this a very difficult task given the volume of material before the Tribunal.
In short, I have addressed only those submissions which I consider to be arguably relevant to the issues in dispute and which are supported by some identifiable evidence.
The relevant facts
I set out below what I consider to be the relevant facts.
With respect to the transcript references in these Reasons, I note that there is an issue with the page numbering for Days 2 and 3 of the hearing. The transcript page numbering for Day 2 commences with a ‘3’ and the page numbering for Day 3 commences with a ‘1’ (as does the Day 1 transcript). To identify the relevant transcript for the first three days, I have included the date of those days in the transcript references (being 19 April 2023, 20 April 2023 and 21 April 2023 respectively).
Events leading up to the Applicant’s suspension
In January 2016, JCF, a student enrolled in the MBBS course, approached Dr O’Connor in relation to the Applicant. JCF said that the Applicant had confronted him about rumours about the Applicant being involved in ISIS. JCF said that he had heard that rumour and various other people had told him that there was this rumour going around about the Applicant being involved in ISIS.[40] JCF said that the Applicant had approached him and accused him and other unnamed students of saying that he (the Applicant) was a member of ISIS and was a terrorist.[41] JCF said that at the time he didn’t know the Applicant.[42] JCF did not want to progress the matter, he only wanted to discuss his options.[43] Dr O’Connor advised JCF to keep his own records.[44] Dr O’Connor advised that she would send him an email providing links to JCU resources, including the JCU Discrimination and Harassment Policy and Procedure.[45]
[40]See exhibit 46, lines 25-30. Exhibit 46 is a transcript of a digital recording (exhibit 47) of an interview between Ms Virginia Simmons of National Workplace Solutions and Dr O’Connor on 17 December 2018. To the extent of any inconsistency between this evidence and the content of Dr O’Connor’s affidavit, I prefer this evidence given that it is significantly closer in time to the events in question.
[41]O’Connor affidavit, [17].
[42]Exhibit 46, lines 31-33.
[43]O’Connor affidavit, [17].
[44]O’Connor affidavit, [17] and exhibit 46, lines 30-31.
[45]O’Connor affidavit, [17].
On 28 January 2016, the Applicant approached Dr O’Connor.[46] The Applicant told Dr O’Connor that he had been told by friends that a small group of Coptic Christian Egyptian students were spreading rumours that he wanted to go and ‘join ISIS’ and that he looked like a ‘terrorist’.[47] I will refer to these rumours collectively as the ‘ISIS rumour’ (as submitted on behalf of the Respondents).
[46]O’Connor affidavit, [22] and exhibit “TO-05”.
[47]Applicant’s statement, [47]; O’Connor affidavit, [22] and exhibit “TO-05”.
Following the meeting, also on 28 January 2016, Dr O’Connor sent the Applicant an email.[48] The email stated:
Thank you for coming to discuss the situation regarding gossip and rumour about you that you have become aware of within your cohort. You advised me that you have been the subject of rumours since last year and that this had an impact on your studies last year. You have spoken with the students who you were informed had been spreading the rumours including the person who you believe was the origin of the rumours. You believe that the matter is now dealt with.
I advised you that it is important to find a way through this so that it does not continue to impact you and your studies. One option is to not respond to the rumours - a lack of reinforcement will often lead those involved to lose interest in the matter.
One of the advantages of the Year 4 timetable is that students are no longer regularly in contact with each other on a day to day basis. You should also consider not having regular contact with the individuals on social media.
There are formal processes and University policies that may be pertinent to the situation you have discussed.
1. The University’s Student Conduct Policy jcu.edu.au/ policy/student-services/student-conduct-policy outlines the University’s expectation of student conduct.
2. The University has a Discrimination and Harassment Policy and Procedure which describes the way in which complaints of this nature can be dealt with discrimination-and-harassment-policy-and-procedure Section 6 outlines the steps in managing a complaint under this policy.
Please contact me if you have further questions or concern.
[48]O’Connor affidavit, [22] and exhibit “TO-05”.
In the email, Dr O’Connor said that ‘one option’ was not to respond to the rumours because a lack of reinforcement will often lead those involved to lose interest in the matter.
In paragraph [1] of his written submissions,[49] the Applicant submits that he ‘gave the names of [JCL] and [JCF]’ to Dr O’Connor at the 28 January meeting. The Respondents submit that there is no evidence to support this assertion.[50] At paragraph [54] of his statement, the Applicant stated that he requested that Dr O’Connor speak with the students ‘he named’. However, the Applicant did not identify the names of the students he allegedly gave to Dr O’Connor. Further, in cross-examination, the Applicant accepted that he did not give Dr O’Connor the names of any students at this meeting.[51] I find that the Applicant did not give Dr O’Connor the names of JCL or JCF.
[49]See, e.g., paragraph [6] of the submissions.
[50]Respondents’ submissions in reply, Annexure A, paragraph [1].
[51]19 April 2023, T1-106 line 28 – T1-107 line 10.
The Applicant states in his statement:[52]
60. Sometime later in the semester, towards mid-2016, I was told by my friends that a student named [JCC] was now building on the rumours from the Coptic students and saying that the impact of those rumours on me was leading me to struggle with my fourth-year studies because ‘I had been bullied’.
61. Nothing of the sort was occurring.
62. As far as I was aware by then, the Coptic students were no longer spreading those rumours because of the steps I had taken, however [JCC], a rather vocal student in terms of matters of political correctness, was referring to those rumours and telling students they had impacted me negatively.
[52]Applicant’s statement, [60]-[62].
On 10 June 2016, the Applicant again met with Dr O’Connor. The purpose of this meeting was to discuss the Applicant’s exams.[53] The Applicant raised the issues relating to gossip during the meeting. The Applicant thought the gossip was ‘affecting’ his relationships with other students and that he was concerned it would affect his opportunities as a doctor.[54] Dr O’Connor reiterated her advice in the email of 28 January 2016, relating to moving forward from these issues, and the complaints procedure.[55] The Applicant submits (at paragraph [4] of his written submissions) that the main purpose of raising the rumours was to inform Dr O’Connor that ‘students were ignoring the Applicant’. There is no evidence that the Applicant advised Dr O’Connor in these terms. However, I accept that the Applicant said that he thought the gossip was affecting his relationships with other students.
[53]O’Connor affidavit, [24] and [26].
[54]O’Connor affidavit, [24] and [26].
[55]O’Connor affidavit, [26].
The Respondents submit that ‘Dr O’Connor made some enquiries with JCU students about this matter and was not able to find any evidence of the rumours’,[56] relying on an email sent by Dr O’Connor to Professor Murray on 8 August 2017 in which it was stated ‘Last year I spoke with several students about this matter (Coptic Christians) and it seemed to resolve’.[57] The Respondents led no evidence of the identity of the students spoken to (or even the number of students), nor the date or dates on which such students were spoken to, much less evidence as to the content of the discussions between Dr O’Connor and the respective students. As the Applicant submits,[58] there are no file notes of meetings or conversations with such students. During her interview with Ms Simmons in December 2018, Dr O’Connor did not mention talking to students other than JCF during 2016. The Applicant was unable to pursue this issue with Dr O’Connor because of her non-availability at the hearing. Having regard to the state of the evidence on this issue, I reject the Respondents’ submission that Dr O’Connor ‘was not able to find any evidence of the rumours’. The submission runs counter to the evidence that JCF had informed Dr O’Connor that he had heard rumours of that nature. I find that JCF’s statement to Dr O’Connor provided some evidence of the ISIS rumour.
[56]Respondents’ secondary submissions, [23].
[57]O’Connor affidavit and exhibit “TO-11”.
[58]Applicant’s written submissions, [5].
On 30 November 2016, Dr O’Connor contacted the Applicant to inform him that he failed Year 4 of the MBBS course and that he would need to provide a statement of reasons as to why he did not pass.[59] Dr O’Connor followed this up with the Applicant on 7 December 2016.[60]
[59]O’Connor affidavit, [29].
[60]O’Connor affidavit, [34].
The Applicant refers to an email sent by him on 16 December 2016.[61] Neither the Applicant nor the Respondents put that email into evidence. However, the Applicant points out that Professor Murray cited an extract from an email of that date in exhibits “RM-18”and “RM-22” of Professor Murray’s affidavit. The cited extract was that students ‘started false rumours about me such that ‘[the Applicant] has been bullied’ or ‘someone was racist to [the Applicant]’ which has made my life 10 times more stressful and none of these rumours are true’. When regard is had to paragraph [1b] of exhibit “RM-22”, it is plain that Professor Murray treated that statement as relating to the Victim of racism rumour (and not the ISIS rumour).
[61]Applicant’s written submissions, [21c].
Insofar as the Applicant complains that Dr O’Connor did not investigate the ISIS rumour, I find that:
(a)in relation to this rumour, the Applicant did not identify to Dr O’Connor the names of any students who were said to be involved in the spreading of the rumour;[62]
(b)I infer that the Applicant complained to Dr O’Connor about ‘Coptic Christian’ students being involved in the ISIS rumour in 2016;[63]
(c)Dr O’Connor was informed by the Applicant that the difficulties with the ‘Egyptian students’ had settled;
(d)at no time did the Applicant lodge a formal complaint with Dr O’Connor or JCU in relation to the rumour;
(e)by, at the latest, the middle of December 2016, Dr O’Connor did not have any basis to believe that the Applicant was still complaining about the ISIS rumour.
[62] 19 April 2023 T1-105 lines 29-32; see also T1-106 lines 21-26.
[63]O’Connor affidavit, [28] and exhibit “TO-11”.
On 27 January 2017, the Applicant provided a statement of reasons in relation to his failure to pass Year 4.[64] The Respondents rely upon the fact that the statement of reasons did not mention the two rumours (as a reason for failing to pass).[65] That is so. However, the Applicant submits that he was advised by Dr O’Connor to mention his father’s illness as a reason for him failing Year 4. The Applicant gave evidence of this both in his response to Dr O’Connor’s affidavit (exhibit 35) and under cross-examination.[66] In the absence of any contradictory evidence, I accept the Applicant’s evidence that Dr O’Connor told the Applicant to ‘focus’ on ‘his family issues’.
[64]Midson affidavit, [8] and exhibit “JM-01”.
[65]Respondents’ secondary submissions, [24].
[66] 19 April 2023 T1-109 lines 22-43.
The Applicant stated in his statement:[67]
Not long after returning to re-sit fourth year, I was pretty quickly informed by my friends that the new rumour doing the rounds was that ‘[JCC] was right’ and I had failed fourth year ‘as he said I would’, or words to that effect.
[67]Applicant’s statement, [86].
On 4 May 2017, Dr O’Connor met with the Applicant regarding his progress in the MBBS course. The Applicant said that he was ‘frustrated’ that staff believed he was being ‘discriminated against racially’. Dr O’Connor advised the Applicant to speak with the Year 4 MBBS Coordinator (who was Dr Poornima Roche) regarding this issue.[68] This evidence was not disputed by the Applicant in his response to Dr O’Connor’s affidavit. The Applicant did not request Dr O’Connor to investigate the matter.
[68]O’Connor affidavit, [37].
The Respondents submit that this appears to be the first time that the Applicant raised the issue of rumours circulating that he had been the victim of racism (which I shall refer to as the ‘Victim of racism rumour’).[69] For the reasons set out in paragraph [62] above, I find that the Applicant first raised this rumour on 16 December 2016.
[69]Respondents’ secondary submissions, [25].
The Applicant does not remember approaching Dr Roche but stated he ‘might have’.[70]
[70]19 April 2023 T1-111 lines 13-16.
Dr O’Connor spoke with Dr Roche.[71] The Respondents rely upon a statement in an email sent by Dr O’Connor to Professor Murray on 16 November 2017,[72] that Dr Roche ‘advised there were no rumours’. I do not accept this statement as truth that there were in fact no rumours. However, I accept it as evidence of the fact that Dr O’Connor was so informed and note that this formed part of the information that was provided to Professor Murray.
[71]O’Connor affidavit, [39] (first sentence).
[72]O’Connor affidavit, exhibit “TO-14”.
On 23 June 2017, Dr O’Connor received an email from JCA.[73] The email stated, relevantly:
[73]O’Connor affidavit, exhibit “TO-10”.
…
Last year around June I was approached by [the Applicant], currently a Year 4 Student (repeating) with the accusation that I was engaging in rumours about him behind his back. I assured him that this was not the case, as I really did not even know much of [the Applicant] prior to that interaction. The conversation ended, and I thought that was the end of this interaction.
A few weeks ago this term, I received word that he was mentioning my name as part of a group of people who had previously spread rumours about him - this was in the setting of the private hospital with his rotation group. This was disconcerting because I consider this as hypocritical in a sense and I do not appreciate people speaking poorly and falsely about me in the professional setting.
I ignored the latter events as I usually do not like to involve myself in drama, until a few days ago (last Thursday) when drama landed on my footstep so to speak.
My girlfriend back at home [Redacted] received a lengthy and concerning message regarding me that was completely false, defamatory and extremely concerning in the current climate. Although most of the details in the message are somewhat humorous as they are completely opposed to my nature and values and therefore quite obviously false, there are serious accusations as part of that message that I cannot simply disregard. The message is attached as screenshots below.
…
As per advice, I have spoken to [the Applicant] directly, and asked him whether this was his doing - he denied involvement and more so denied speaking about me in the public setting this term. I have warned him that any further gossip/rumours that I hear of, I will take action legally and he verbally responded to this.
I am therefore unsure who is behind this disconcerting message and defamatory accusation but I would like to flag to the college the names in this message, [the Applicant], and especially [JCE], who has been in many instances involved in this kind of behaviour and is somewhat diabolical in nature and who I am informed was involved in prior rumours of similar nature about [the Applicant].
I have sought to resolve this independently, I have seen the Student Welfare and Equity and yourself as well as A/Prof Louise Young to express my concerns but I do not wish to take further legal action unless this re-occurs.
…
(emphasis added)
The Applicant submits that the statement emphasised in paragraph [70] above was ‘clear proof that JCE was involved in spreading rumours in regards to the applicant joining ISIS’ (and that JCE turned the allegations against the Applicant).[74] I reject that submission. JCA is plainly referencing something he was told by a third party, without identifying that person (or those persons). That falls well short of ‘clear proof’. I also note that in referencing ‘prior’ rumours, there was no suggestion that any such rumours were ongoing.
[74]Applicant’s written submissions, [12].
Dr O’Connor advised JCA on numerous occasions that there was no evidence that the Applicant was the author of this Facebook message; that he (JCA) had made an assumption as to the author; and that no action could be taken on an assumption alone.[75]
[75]O’Connor affidavit, [42].
On 8 August 2017, Dr O’Connor met with the Applicant.[76] The Applicant states that he said to Dr O’Connor:[77]
I thought to myself that I just dealt with one rumour which completely marginalised and isolated me from the society. I do not want to deal with another rumour that could make it difficult for me to work with people. I want to focus on my studies as well and prevent people from bringing up my name.
I thought if a Jewish student is bringing this issue up, Jewish staff members might also be talking about this as well. They might have passed on this information to the CPC tutor therefore I brought up this issue … and because my friends said that I should take this issue seriously and talk to the Dean. Because it could become like the other rumour/talk.
(footnote omitted)
[76]O’Connor affidavit, [44]; Applicant’s statement, [94]-[96].
[77]Applicant’s statement, [95].
Dr O’Connor recalls that the Applicant alleged that JCU staff were saying that he was a victim of racism.[78] He spoke of the Jewish cohort within JCU trying to use his case as a way of fighting injustice but the Applicant did not specifically name any student that was spreading these rumours.[79]
[78]O’Connor affidavit, [44].
[79]O’Connor affidavit, [44].
Also on 8 August 2017, Dr O’Connor sent an email to Professor Murray.[80] In that email, Dr O’Connor reported her meeting with the Applicant as follows:
(a)the Applicant said people from minorities were keen to push the anti-racism agenda to ensure that everyone becomes correct in their behaviour;[81]
(b)he had difficulties with Egyptian students but that those matters have settled;[82]
(c)Jewish and Middle Eastern students are concerned about him and that someone has contacted his parents about these matters;[83]
(d)Dr Monika Zimanyi (a staff member employed by JCU) has concerns for him;[84]
(e)he was not himself a victim of racism but that he had concerns that people think he is;[85]
(f)the Applicant believes that JCU ensured he never went with a ‘white’ student on clinical placements;[86]
(g)he wanted to meet with Professor Murray;[87]
(h)she (Dr O’Connor) should check with both Ms Simone Ross and Professor Peter Johnson (staff employed by JCU) about the ‘gossip’ about him being bullied.[88]
[80]Applicant’s statement, annexure ‘RO-2’; O’Connor affidavit, exhibit “TO-11”.
[81]O’Connor affidavit, [46] and exhibit “TO-11”.
[82]O’Connor affidavit, [46](a) and exhibit “TO-11”.
[83]O’Connor affidavit, [46](b) and (c)] and exhibit “TO-11”.
[84]O’Connor affidavit, [46](d) and exhibit “TO-11”.
[85]O’Connor affidavit, [46](e) and exhibit “TO-11”.
[86]O’Connor affidavit, [46](g) and exhibit “TO-11”.
[87]O’Connor affidavit, [46](h) and exhibit “TO-11”.
[88]O’Connor affidavit, exhibit “TO-12”.
In the Applicant’s response to Dr O’Connor’s affidavit (exhibit 35), the Applicant contested only two aspects of this evidence. First, with respect to subparagraph [75](c) above, the Applicant stated that he did not refer to Middle Eastern students, only ‘Jewish students’. Second, with respect to subparagraph [75](a) above, the Applicant stated that he did not say ‘people from minorities’, but said ‘Jews’. Although there is some corroboration of Dr O’Connor’s evidence in the form of the email (albeit that there is no supporting file note), in circumstances where Dr O’Connor was not available for cross-examination and where the Applicant was not directly challenged on the above evidence, I accept the evidence of the Applicant in this regard.
On 9 August 2017, Dr O’Connor sent an email to Professor Murray.[89] The email stated, relevantly:
At the meeting yesterday [the Applicant] asked me to check with both Simone Ross and Pete Johnson about the ‘gossip’ about him being bullied. I’ve checked with both. Simone doesn’t know who he is and Pete has heard nothing about bullying or any other issue. He remembered that [the Applicant] had difficulty last year (he failed Med 4).
So that’s now 3 staff members whom he said knew about his situation who have no knowledge (2 don’t know him).
I have not confronted [the Applicant] about any delusional thoughts in my meetings with me but have tried to probe him about evidence and sources. Yesterday he was the clearest he has ever been in his statement that he believes it is some political agenda driving all this - before this I couldn’t really understand what he was trying to tell me.
I’ll leave the direction of the discussion up to you but will be happy to let [the Applicant] know that I’ve spoken with the 3 staff members he asked me to and they deny any knowledge of the situation. However I realise that might just drive the delusion further as it’s more evidence of some conspiracy.
[89]Applicant’s statement, annexure ‘RO-3’; O’Connor affidavit, exhibit “TO-12”.
In paragraph [54] of her affidavit, Dr O’Connor stated that the Applicant’s ‘constant discussions’ that the Jewish community was ‘running’ JCU raised concerns for her. In his response, the Applicant denied that he said the Jewish community was ‘running’ JCU but said that they had ‘a lot of influence over JCU’. I accept the Applicant’s evidence in this regard because, first, Dr O’Connor did not use the term ‘running’ in either of the two emails sent to Professor Murray on 8 and 9 August 2017 and, second, the Applicant was not directly challenged in cross-examination on the statement in his response.
On or about 10 August 2017, Dr O’Connor and Professor Murray met with the Applicant.[90] Dr O’Connor’s evidence of that meeting is that the Applicant:
(a)advised that there were rumours being spread within his cohort;[91]
(b)advised that there had been trouble with some Egyptian students, but this had all been cleared up;[92]
(c)advised that JCU staff were talking about him and it was probably Jewish staff members;[93]
(d)did not provide the names of any JCU students or staff said to be involved.[94]
[90]O’Connor affidavit, [55]; Murray affidavit, [12].
[91]O’Connor affidavit, [55](a).
[92]O’Connor affidavit, [55](b).
[93]O’Connor affidavit, [55](c).
[94]O’Connor affidavit, [56].
The Applicant did not dispute this evidence in his response, and I accept Dr O’Connor’s evidence in this regard.[95]
[95]Murray affidavit, [12].
Professor Murray’s evidence as to the discussion at the meeting is as follows:[96]
During that meeting, the Applicant gave an account of his concerns, namely that he believed that other students and members of staff were talking about him as being a victim of racism or bullying. He explained that this belief was based upon what friends had told him they had heard and that he wanted people to stop talking about him. The Applicant confirmed that he had confronted students whom he believed were talking about him. He agreed, at my request, during this meeting that he would provide a written detailed account of his concerns once he had completed his current clinical rotation. I requested that the Applicant provide the names of the students who had advised him of these rumours. I did not request that the Applicant confront the students he believed to be spreading the rumours.
[96]Murray affidavit, [12].
In the Applicant’s statement (exhibit 5), he said the following (in relation to this meeting):[97]
103. Professor Murray told me in this meeting to go and ask people or friends I knew who could confirm that these rumours were occurring.
104. Professor Murray says that he also asked me in this meeting to provide a written account of what I had experienced but I do not agree that he did request that from me then.
[97]At [103]-[104].
In cross-examination, the Applicant gave the following evidence:[98]
[98]20 April 2023 T3-8 lines 11-47.
All right. Well, do you recall having a meeting with Dr O’Connor and Professor Murray on the 10th of August 2017?
I don’t remember the dates.
Well, I know I suggested a moment ago it was by telephone, but is it possible that the meeting was in person?
Is it - it’s possible. Yes.
Yes. So what - putting aside the date. I just want you to focus on the first meeting you recall with Professor Murray and Dr O’Connor and yourself in 2017?
The - the very first meeting. Yes.
Okay. Can I suggest that at the start of that meeting, you advised Dr O’Connor and Professor Murray that there were rumours being spread amongst - about you amongst your cohort?
That’s correct.
And can I suggest that you told them that there had been some trouble with some Egyptian students, but that had been cleared up?
I told them that I - yes. There was trouble with Egyptian students, and I’d approached them. Yes.
And that it had been cleared up?
The rumour, I don’t know. But my issue with the Egyptians were the - no longer an issue at that time with those two Egyptians - with one Egyptian that - that I approached.
And can I suggest that you told them that the rumour you were presently concerned about was that you had been the victim of bullying and racism?
That’s correct.
And you told them that you knew of the existence of this rumour because you had been told of it by your friends?
That’s correct.
You advised them that JCU staff were talking about you?
Yes. That was the issue with the doctor that - one of them that I mentioned.
And can I suggest that you said that it was probably the Jewish staff who were talking about you?
Yes. I was concerned that somebody from JCU had passed on that information to [indistinct]
But specifically, you had suggested that it was probably the Jewish staff who were talking about you?
Yes. That was one of the suggestions. Yes.
The Applicant accepted in cross-examination that Professor Murray asked the Applicant to identify the names of the students who had spoken to the Applicant and told him of the existence of the rumours.[99] I also find that, in cross-examination, the Applicant ultimately did not dispute that Professor Murray asked him for evidence of the source of the Applicant’s knowledge of the rumours rather than evidence of the source of the rumours.[100]
[99]20 April 2023 T3-9 lines 16-26, T3-9 line 42 – T3-10 line 3. Professor Murray’s evidence is corroborated by his email sent to Dr O’Connor on 16 November 2017, being part of exhibit “RM-04”.
[100]20 April 2023 T3-10 lines 9-14.
With respect to the issue of whether Professor Murray asked the Applicant to provide a written account of his concerns, I prefer the evidence of Professor Murray to that of the Applicant having regard to the following evidence of the Applicant in cross-examination (which reveals a lack of certainty on the part of the Applicant):[101]
[101]20 April 2023 T3-9 lines 1-6.
And can I suggest to you that during the meeting, Professor Murray asked you to provide a written account of your concerns?
I don’t remember that.
It’s possible he did that, though, isn’t it?
I’m not sure. I don’t think he - I don’t think he asked for a written account. I - I remember he asked that I should contact my friends and get my friends to give evidence to him.
On 11 October 2017, Dr O’Connor received a further email from JCA complaining that the Applicant had approached him again.[102] The email stated:
I would like to inform you that following my conversation with Ann to swap me out of the same living arrangements as [the Applicant], I have been contacted by him.
In this conversation he asked me what I told Ann in order to get swapped, to which I said I just don’t want to be with that student.
In that conversation, [the Applicant] also further accused me of further spreading gossip about him to my friends regarding the defamatory message sent about me, accusing me of telling my friends he sent it.
Interestingly, I have not told any of my friends about that message. He does not believe anything that I say when I say that this is not true.
At this stage, I have exams to focus on and I am not tolerating any drama. I will just ignore him, and not let it bother me as I know not much can be done. However, I thought you should know as he made the effort to contact me directly re this. I really hope this doesn't follow me to [Redacted] as nothing I say to him seems to take effect.
I have asked Ann to not approach him regarding the matter as this only will exacerbate things.
[102]O’Connor affidavit, [57] and exhibit “TO-13”.
The Applicant makes a number of submissions in response to this evidence at paragraph [16] of his written submissions. Without reproducing those submissions, I find that they do not assist the Applicant. The thrust of the submissions appears to amount to an asserted justification for the Applicant’s approach to JCA, namely that he was ‘forced to go and talk to [JCA] to make sure he does not cause further accusations and make any false accusations about the applicant to the accommodation manager in MacKay [sic] or start a false rumour in MacKay [sic]’. In my view, the Applicant’s rationale for approaching JCA is irrelevant to the issues raised in this case. It is an example of the Applicant’s tendency to treat the complaint as a merits review application. In support of his submission, the Applicant also asserted that JCA ‘spread false rumours within the cohort that the applicant had contacted his girlfriend’ and that the Applicant had heard these rumours from other students such as Justin Smith. Not only is this irrelevant to the proceeding, there is no evidence to support the assertion. The Applicant further submitted that JCA on ‘at least 2 occasions admitted that he had heard rumours from JCF and JCE regarding the applicant’. The Applicant has provided no reference to the evidence asserted to support such a submission. The Respondents submit that there is no evidence to support this submission. I have been unable to identify any supporting evidence. I also observe that the substance of the submission is unclear. It raises the question of the person to whom JCA allegedly made the admission (e.g. the Applicant?) and what was the content of such rumours. I do not accept the Applicant’s submission in this regard.
On or about 15 November 2017, JCB, another student in the MBBS course, sent an email to Dr O’Connor complaining that the Applicant had confronted him.[103] JCB stated in the email:
I am writing to inform you of a very peculiar and alarming encounter I had after I had completed my OSCE this morning:
I was sitting down with friends when I was approached by someone in my year group who I have never come in contact with before. He asked whether I could talk with him in private on the other side of the room. We sat down and he said that he had been meaning to talk to me for a while but he felt like this was an opportune time. He said that he had heard that I had been talking about him behind his back and been saying that he was repeating the year because he had been bullied the previous year for being a muslim and refugee. He said he had heard that I, as well as many other Jews in Townsville, had been talking about him behind his back. I proceeded to look at his lanyard since I didn’t even know his name, which is [the Applicant], and told him that I had no clue what he was talking about. I told him that I didn’t even know his name. He said he had been told that I was talking about him and other Jews had as well including [JCI], [JCJ], [JCK] and [JCC] (who are all in Cairns). I told him that I wouldn’t know as I have never had any contact with him and am distanced from those people as we live in different places. There are only a few Jewish students as it is. He said that he understands there can be animosity because he is a Muslim and has said things against Jews and Israel but he is not an anti-semite. He said that if he heard this again he would be taking this further verbally and PHYSICALLY. I said to him that I had no clue about it, had nothing to really offer as a response and am sorry that this has happened to him. He wouldn’t reveal who had told him this but was adamant this was the truth and I could not say anything otherwise.
I hope this can be documented and you may proceed as necessary if you feel appropriately.
[103]O’Connor affidavit, [59] and exhibit “TO-14”.
JCB subsequently spoke with JCU staff members Dr Paula Heggarty and Dr Roche about his complaint.[104] Dr O’Connor was on leave at this time and asked Professor Murray to deal with the matter.[105]
[104]O’Connor affidavit, exhibit “TO-14”.
[105]O’Connor affidavit, exhibit “TO-14”.
The Applicant denies that he ever, as he put it, ‘threatened [JCB] with violence’. The Applicant made this denial in a response that he subsequently made to the Review Panel.[106]
[106]Sen Gupta affidavit, exhibit “TSG-18”.
In my view, it is not relevant to a determination of the issues in this case to resolve the issue of whether or not the Applicant said that he would take action against JCB ‘physically’.[107] Rather, the fact is that a complaint was made to Dr O‘Connor in the terms of JCB’s email and the Applicant denied having threatened JCB ‘with violence’ (and none of JCU, Professor Murray or Dr O’Connor sought to obtain further evidence in relation to that factual contest). In my view, these are the circumstances in which the Respondents’ alleged treatment of the Applicant is to be considered.
[107]Cf Respondents’ supplementary submissions, [33]; Applicant’s written submissions, [17]-[18].
On 16 November 2017, Professor Murray telephoned the Applicant.[108] Professor Murray’s evidence in relation to that discussion is recorded in an email from Professor Murray to Dr O’Connor sent on 16 November 2017.[109] The email stated, relevantly (including a part upon which the Applicant relies to argue the issue of the alleged presumed mental illness):[110]
…
I rang and spoke with [the Applicant]. He is in Brisbane visiting family and will not be back until December 10 (exams on 11th and 12th he says). I said that I had been wanting to finish our conversation and that he had undertaken to come back to us with information about the friends who had (allegedly) been relaying to him on information on talk that they’d heard.
I mentioned that you had had a report from a concerned student with whom [the Applicant] had apparently challenged that he had been talking about him. [the Applicant] said that he was OK and not worried and that he was also happy to meet. I emphasised that we were wanting to understand any continuing concerns that might still have and to consider how we might help.
I’ve suggested that we meet when he is in Townsville after his exams …
He seems composed and unconcerned, sounding similar to our last meeting. His reported thoughts and behaviour do raise a continuing question as to whether his paranoid thoughts are severe enough to be considered delusional and perhaps a manifestation of early schizophrenia or delusional disorder. He appears to be insightful in other ways and his speech and affect seem pretty normal.
So, with him away from JCU and with family and on the basis that we have what appear to be reasonably long-standing paranoid thinking in an otherwise high-functioning person, I don’t think we need to take any urgent action. Let’s make an assessment after the exams and our discussion. I would think that a medical assessment would be next and I would like to try to negotiate that with him.
…
[108]Murray affidavit, [23].
[109]Murray affidavit, part of exhibit “RM-04”.
[110]Applicant’s written submissions, [19].
It appears that the Applicant is again referencing victimisation in the ordinary sense of that word.
The allegation of victimisation appears to be directed at the conduct of Professor Murray. The thrust of the Applicant’s allegation against Professor Murray in this context appears to be that Professor Murray falsely adopted a position that the Applicant was ‘mentally ill’. If that is the contention made by the Applicant, I reject it. As noted above, I have concluded that Professor Murray held a suspicion that, until receipt of Dr Lazzari’s report, the Applicant was suffering from a mental illness. I have concluded that Professor Murray did not presume that the Applicant was in fact suffering a mental illness. Further, insofar as Professor Murray held the suspicion, I consider that it was a suspicion genuinely held by Professor Murray.
Given the nature of conduct that would contravene s 129 of the ADA, coupled with the onerous penalties provided for by s 129, I consider that an alleged contravention of that provision is a serious allegation.
Whilst acknowledging that the Applicant was self-represented, given the nature of the allegation of victimisation (and noting the potential penalties provided for by s 129 of the ADA), I consider that Professor Murray should have been given the opportunity to respond to any specific allegation upon which the Applicant would seek to rely in endeavouring to make out his case in relation to victimisation.
The Applicant has not provided or articulated the details of the specific conduct of the Respondents alleged to be a contravention of s 129 of the ADA nor has he identified how one or more of the provisions of s 130 of the ADA is engaged. I consider that it is not the Tribunal’s role to endeavour to construct an argument that one or more of the Respondents may have contravened s 129 and address such an argument.
In any event, even if the Applicant had established that one (or more) of subsections 130(1)(a)(i), (a)(ii), (a)(iii), and (1)(b) of the ADA was engaged, I could not have been satisfied that the particular ‘act’ done (being an aspect of the treatment complained of by the Applicant in respect of the discrimination aspect of the claim) was done by JCU or one or more of the individual Respondents ‘because’ the Applicant refused to do some relevant act or he alleged or intended to allege (in good faith) a contravention of the ADA, or that the Applicant, relevantly, intended to be involved in a proceeding under the ADA, or because of a belief of JCU, by an individual staff member, as contemplated by s 130(1)(b).
In short, I find that the Applicant has failed to discharge the burden of proof, placed on him by s 204 of the ADA, of establishing a contravention of s 129 of the ADA.
The claim against each of Professor Murray, Dr Rasalam and Professor Bull
There is no contest that Professor Murray, Dr Rasalam and Professor Bull were respectively acting within the scope of their employment with JCU.
Neither the Applicant’s statement of contentions nor his written submissions address the basis upon which it is alleged that each of those persons is personally liable under the ADA.
The Respondents address this issue at paragraphs [182]-[188] of the Respondents’ secondary submissions.
I accept the Respondents’ submission that the only provisions of the ADA that could have any application are s 114 and s 123.
Section 114 of the ADA provides:
If discrimination by a person or body is unlawful under this chapter, discrimination by a worker or agent of such a person or body is also unlawful.
Section 123 of the ADA provides:
If—
(a) a person requests or encourages another person to contravene the Act; and
(b) the other person acts, or attempts to act, on the request or encouragement;
both are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
For the reasons set out above, I consider that none of the Respondents engaged in discrimination as proscribed by the ADA nor did any of them contravene s 129 of the ADA. For this reason, I consider that neither s 114 nor s 123 of the ADA is engaged. For completeness, I note that the Applicant did not articulate a case against any of Professor Murray, Dr Rasalam or Professor Bull in relation to the operation of s 123, save in the broadest sense in relation to Professor Murray given the allegations that he ‘influenced’ other staff members in relation to the existence of a mental illness of the Applicant.
Relief
In light of my findings in relation to liability, it is unnecessary to address the question of relief. However, I will make some brief observations in this context in respect of the claim of direct discrimination. The Applicant sought the following relief in the Statement of Contentions:[340]
[340]At [112]-[122].
Reinstatement
112. In the first instance, [the Applicant] seeks a declaration that he be reinstated as a student of the MBBS to complete the final year of the degree at JCU.
113. To facilitate that reinstatement, [the Applicant] seeks an order that he complete the MBBS at the Cairns campus to reduce friction for all parties.
114. In the alternative, [the Applicant] seeks an order that Professor Murray write a letter of recommendation facilitating his transfer into the equivalent 5th year level of an MBBS at another university.
Compensation
115. A declaration that the Respondents contravened section 9 of the Anti-Discrimination Act 1991 by way of direct discrimination against [the Applicant];
116. By virtue of the Declaration set out above, [the Applicant] seeks the following relief:
a.JCU’s payment of the tuition and residential costs for him to complete the MBBS through JCU, estimated to be in the order of $80,000.00;
b.In the alternative, JCU’s payment of his tuition and residential to transfer to another university to complete his MBBS, estimated to be in the order of $150,000.00; and
c.Overall, the payment of two years’ loss of income equivalent to a first-year graduate from the MBBS on account of the delay in his graduation, estimated to be in the order of $77,000.00 per annum.
117. A declaration that the Respondents contravened section 9 of the Anti-Discrimination Act 1991 by way of indirect discrimination against [the Applicant].
118. By virtue of the Declaration set out above, [the Applicant] seeks the following relief:
a.Damages in relation to non-financial loss in the form of psychological injury, hurt, distress, humiliation, damage to reputation and loss of enjoyment of profession.
119. A declaration that the Respondents contravened section 130 of the Anti-Discrimination Act 1991 by way of victimising [the Applicant].
120. By virtue of the declaration set out above, [the Applicant] seeks the following relief:
a.170 penalty units against the First Respondent, equivalent to $22,686.50;
b.45 penalty units against each of the Second, Third and Fourth Respondents, equivalent to $18,015.75 in total.
121. Interest; and
122. Such other orders as the Court considers appropriate.
By exhibit 7, the Applicant set out how much he was claiming by way of compensation as follows:
…
I am seeking my fees to study in another university.
My fees to study Bachelor of Medicine in another university is $860,000. The breakdown of the costs has been provided to the respondents through emails in past 12 months.
I calculated the amount by contacting various private universities locally and overseas. For example bond University and Macquarie University.
The Applicant did not address the question of relief in his final written submissions.
The Respondents submit:[341]
189. If contrary to the above submissions, the Tribunal finds that there was unlawful discrimination, the Respondents submit that there is no evidence as to loss and damage. Absent such evidence, no order for compensation can be made.
190. In any event, it is important to note that any compensable loss or damage suffered by the Complainant depends on which form of discrimination is made out. However, the claim for loss or damage does not descend to identify the causal connection between the alleged discriminatory acts and the loss claimed. For example, there is no connection between the failure to investigate the Complainant’s complaints and the amount of compensation sought. Similarly, there is no connection between the suspension/Student Agreement and any loss claim.
[341]Respondents’ secondary final submissions, [189]-[190].
It is unclear whether the Applicant intended exhibit 7 to constitute the only relief ultimately sought by him. Regardless, in the circumstances of the case (particularly the interactions between the Applicant and the various staff members) I consider that it would not be appropriate to grant relief in the form of reinstatement or to require Professor Murray to write a letter of recommendation for the Applicant.
With respect to the question of compensation, I find that the claim for compensation in the form of the alleged alternative fees to undertake an MBBS course at a private university would fail. As submitted by the Respondents, there is a lack of an established causal connection between the alleged treatment and the amount claimed. In any event, I could not be satisfied that the global amount claimed properly reflects the costs of an alternative degree, particularly where there was no evidence about whether the Applicant would receive credit for the years that he passed.
However, if the Applicant had established that his suspension was on the basis of direct discrimination, I would have been minded to order a global award of $8,000.00 as compensation for distress and humiliation suffered by the Applicant, pursuant to s 209(1)(b) of the ADA.[342]
[342]Cf Hehir & Anor v Smith [2002] QSC 092, [41]-[44].
Orders
For the reasons set out above, the complaint lodged by the Applicant on 23 July 2019 against each of the Respondents is dismissed.
With respect to the question of costs, I order that:
(a)any party seeking an order for costs must file with the Tribunal, and give to the other party a copy of, written submissions as to costs, no longer than eight (8) pages, within 28 days of the date of the Decision;
(b)if written submissions as to costs are filed, the other party must file with the Tribunal, and give to the other party a copy of, written submissions in reply, no longer than eight (8) pages, within 28 days of receipt of the written submissions;
(c)if no written submissions as to costs are filed, there shall be no order as to costs of the proceeding;
(d)if written submissions as to costs are filed, the application for costs will be heard and determined on the papers without an oral hearing.
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