Kalim v Universities Admissions Centre (NSW & Act) Pty Ltd

[2010] NSWADT 277

CITATION:	Kalim v Universities Admissions Centre (NSW & ACT) Pty Ltd [2010] NSWADT 277
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Neshat Kalim RESPONDENT Universities Admissions Centre (NSW & ACT) Pty Ltd
FILE NUMBER:	081108; 091052; 091033
HEARING DATES:	4 June 2010
SUBMISSIONS CLOSED:	15 June 2010
DATE OF DECISION:	22 November 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	COSTS – prolonging unreasonably the time taken to complete the proceedings – vexatiously conducting the proceedings
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Kalim v Universities Admission Centre (NSW Act) Pty Ltd [ 2008] NSWADT 135 Haas v Hosking (No 2) [2010] NSWADT 203 Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 Margan v University of Technology, Sydney [2003] NSWADTAP 65 Wilde v University of Sydney [2004] NSWADTAP 32 Miriani v Commissioner for Fair Trading [2005] NSWADT 99 Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254
REPRESENTATION:	APPLICANT In person RESPONDENT K Edwards, counsel
ORDERS:	The applicant is to pay the respondent’s costs as agreed, or if not agreed, as assessed under the Legal Profession Act 2004.

REASONS FOR DECISION

Introduction

1 The issue in these proceedings is whether, despite the general rule that each party should pay their own costs, it is fair for the applicant, Mr Kalim, to pay some or all of the respondent’s costs: Administrative Decisions Tribunal Act 1997 (ADT Act), s 88. The costs application has been determined ‘on the papers’, that is on the basis of the written affidavits, statements and submissions filed by the parties without having a hearing: ADT Act, s 76. As the issue of costs is an ‘ancillary function’ of the Tribunal it may be determined by myself, sitting alone: ADT Act, s 24A(2)(b).

2 Mr Kalim is originally from Afghanistan. He arrived in Australia in June 2005. Since 2006 he has made numerous applications to the Universities Admissions Centre (NSW & ACT) Pty Ltd (UAC) for admission to study at various universities. UAC rejected those applications because of questions about the authenticity of the transcripts. The Chancellor of Kabul University has since advised UAC that the qualifications on which Mr Kalim relied are ‘fake’. Mr Kalim says that this assertion is all ‘lies and fabrication’.

3 Mr Kalim has made several complaints of race discrimination and victimisation against UAC under the Anti-Discrimination Act 1977 (AD Act). These proceedings concern three of those complaints, two of race discrimination and one of victimisation. Mr Kalim lives in Perth and participated in all case conferences and hearings by phone. On 4 June 2010, the Tribunal dismissed all three complaints for ‘want of prosecution’: ADT Act, s 73(5)(g)(iv). UAC has applied for costs. Mr Kalim considers that UAC’s application amounts to ‘blackmail’.

History of the complaints

4 Two earlier applications by Mr Kalim in relation to intakes at the beginning and middle of 2007 were declined by the President of the Anti-Discrimination Board as lacking in substance. The Tribunal refused Mr Kalim leave for the complaints to go ahead: Kalim v Universities Admission Centre (NSW Act) Pty Ltd [ 2008] NSWADT 135.

5 The first complaint in the proceedings (081108) is a complaint of race discrimination in the provision of services and relates applications to UAC for admission to the Bachelor of Medicine/Bachelor of Surgery Degree at the University of New South Wales and the Bachelor of Medical and Radiation Physics at the University of Wollongong for the beginning of the 2008 academic year. The complaint was later amended to include a complaint about his applications to commence university study in semester 2 of 2008.

6 The second complaint (091033) is a complaint of victimisation and relates to the mid-year intake for 2008 to study a Bachelor of Engineering at the University of New South Wales.

7 The third complaint (091052) is a complaint of race discrimination and relates to an application at the beginning of the 2009 academic year to study a Bachelor of Medicine/Bachelor of Surgery or Bachelor of Arts/Bachelor of Medicine/Bachelor of Surgery degree at the University of NSW.

8 Mr Kalim has maintained that he has been discriminated against on the ground of his race and victimised in the manner in which UAC has responded to his applications. The conduct about which he complains is that UAC did not accept the academic transcripts from Afghanistan without verification. He subsequently submitted that UAC did not take any concrete steps to verify his qualifications. He says that his claims in this regard are not unsubstantiated allegations as there is evidence of less favourable treatment and UAC’s record of assessing the qualifications of people from other races more favourably. He also considers that his complaints have a basis in fact and law because he has repeatedly asked UAC to provide evidence that shows that steps have been taken to verify his transcript. In making these submissions, Mr Kalim has represented that the transcripts of his qualifications are genuine.

9 UAC is a corporation owned by 13 universities in New South Wales and the Australian Capital Territory. It acts as the central office to receive and process applications for admission to most university courses of study. While it is the universities themselves who decide who will be offered positions, UAC co-ordinates the process. One of its roles is to assess local and overseas qualifications to determine whether they are genuine. In support of his applications to UAC, Mr Kalim provided copies of transcripts for certain courses that he says he undertook at Kabul University in Afghanistan.

10 UAC submitted that where there is any suspicion that a document is fraudulent, it requires the issuing institution to confirm the authenticity of the document. A large majority of suspect documents are found to be fraudulent and of these, about half concern foreign documents. Mr Andrew Stanton, the Managing Director of UAC, outlines the training UAC assessment staff receive and the process by which they assess applications in his affidavit of 22 February 2008 (AS 1). UAC’s case is that its responses to Mr Kalim’s applications were made on the basis of significant doubt about the authenticity of the transcripts he provided. Those doubts have also been strongly expressed by the Queensland equivalent to UAC (QTAC) and the Australian Federal Police. (See AS 1). Since Mr Stanton prepared that affidavit he has provided further evidence from the Chancellor of Kabul University expressing the opinion that the qualifications Mr Kalim purports to have from that university are not genuine.

11 Each of Mr Kalim’s applications to UAC under consideration in these proceedings relies on the same purported qualifications from Kabul University. The Tribunal directed that all three complaints be heard and determined together.

12 Two later applications relating to Mr Kalim’s applications for admission for the mid year intake of 2009 were declined by the President of the Anti-Discrimination Board as lacking in substance. Mr Kalim did not apply to the Tribunal for leave for those complaints to proceed.

Legislative framework

13 Under s 110 of the AD Act, the Tribunal may award costs pursuant to s 88 of the ADT Act in respect of proceedings before the Tribunal in relation to a complaint. The general rule under s 88 is that each party should pay their own costs. Costs can only be awarded if the Tribunal is satisfied, notwithstanding the general rule, that it is fair to do so having regard to the matters listed in s 88. Section 88 of the ADT Act provides that:

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(1A) 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 it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant .
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, 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.
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

14 UAC relies on each of the italicised provision in support of its application.

15 Section 88 was amended with effect from 1 January 2009. The test under the former s 88 was that there had to be ‘special circumstances warranting an award of costs’. The amended provision applies to applications and proceedings that were ‘made or commenced, but not finally determined’ before 1 January 2009: ADT Act, Sch 5, Cl 43(2)(i). Some of Mr Kalim’s complaints were made prior to 1 January 2009 but because they had not been ‘finally determined’ by that date the amended provision applies.

16 In Haas v Hosking (No 2) [2010] NSWADT 203 the Tribunal emphasised that in the Equal Opportunity Division “other relevant matters” under s 88(1A)(e) includes considerations such as “that it is a human rights jurisdiction, the public benefit that such a jurisdiction provides, and the potential ‘chilling effect’ of too readily making costs orders against an unsuccessful complainant.” The Tribunal added that those considerations must be weighed against the factors listed in section 88(1A). The aim of the weighing process is to determine whether the imposition of a costs order would be ‘fair’. Finally, the Tribunal noted at [38] that the previous practice of refraining from making costs orders except where there has been an abuse of process - in the sense that the complainant acted frivolously, vexatiously or without good faith or where special circumstances are demonstrated, has been displaced by the provisions of section 88 as they now stand.

Evidence

17 UAC relies on the following evidence:

a) the affidavits of Mr Andrew Stanton, UAC’s Managing Director, dated:

(i) 22 February 2008 (AS first affidavit);

(ii) 13 March 2009 (AS second affidavit);

(iii) 25 May 2009 (AS third affidavit);

(iv) 15 June 2009 (AS fourth affidavit); and

(v) 21 April 2010 (AS fifth affidavit).

b) the affidavit of Ms Katherine Gibbons:

(i) dated 25 May 2009 (KG first affidavit); and

(ii) dated to June 2009 (KG second affidavit)

c) the affidavits of Leta Klopper

(i) dated 3 June 2010 (LK first affidavit); and

(ii) dated to 10 June 2010 (LK second affidavit).

18 I have not taken into account evidence purportedly filed by UAC under cover of a letter dated 28 September 2010 because the decision had been reserved as of 20 June 2010.

19 Mr Kalim did not refer to any specific evidence but I have taken into account all the material and correspondence he has provided to the Tribunal in the course of these proceedings as well as the Tribunal’s records of what occurred at various case conferences. Mr Kalim also provided written submission on 14 June 2010.

Procedural history

20 Case conference: 4 February 2009. The first complaint was the subject of a case conference at the Tribunal on 4 February 2009. At that conference Mr Kalim said that he was complaining about UAC’s refusal to take into account his qualifications from Kabul University for admission in semester two 2008. UAC then prepared an application for the complaint to be dismissed as lacking in substance. Mr Kalim advised by email of 17 March 2009 that in fact the conduct he was complaining about was in relation to the semester one 2008 intake. Further, Mr Kalim advised UAC that he had made a further complaint to the Anti-Discrimination Board about the semester two intake. That is, two days after advising the Tribunal that the complaint was about his semester two 2008 application, Mr Kalim made a further complaint to the Anti-Discrimination Board about his semester two 2008 application.

21 UAC then wrote to Mr Kalim offering to agree to consent orders amending the complaint to include the semester two 2008 intake. Mr Kalim advised that he would not agree to that course but later changed his mind when UAC said that they would seek costs against him. Mr Kalim denies changing his mind. He says that he did not understand what he was being asked when he agreed to amend the complaint. He alleges that the Tribunal member spoke to UAC’s representative privately at the case conference before contacting him by phone.

22 Findings. Mr Kalim did not misunderstand what was being asked in the first case conference. He identified his application for semester two of 2008 as being the subject of his complaint. Shortly after that he changed his mind, asserting that the subject matter of the complaint was semester one of 2008 and then made a new complaint to the ADB in relation to semester two. Mr Kalim then resisted his complaint being amended to add the semester two complaint. Based on his correspondence, detailed further below, that decision was made so that UAC would be required expend extra time and money responding to each complaint separately. Mr Kalim’s allegation that the Tribunal member has spoken to representatives of the respondent privately before telephoning him has not been proved. He provides no basis for that belief nor any evidence that it occurred.

In May 2009, Mr Kalim lodged another complaint with the ADB in relation to his application to study commencing in semester one 2009. That complaint arose from the same facts as the previous complaint. At a case conference on 25 May 2009 the following directions were made:

1. Complaints referred to Tribunal by Board are amended to include the applicant’s complaint relating to the first semester 2009 admission year.

2. Respondent’s application for interim orders is not granted.

3. It is noted that the Applicant wishes action to be taken for the respondent’s failure to file and serve within time. Applicant advised that he can apply for costs, but pointed out that any prejudice would appear to be cured by amendment to timetable.

24 On 5 June 2009, UAC received correspondence from Professor Hamidullah Amin, the Chancellor of the Kabul University advising that:

Kabul University examined the documents sent with your letter dated 13 May 2009. The result of our investigation is that none of the documents provided by Mr Neshat Kalim to you and attached to your letter are valid.

They are all fake documents never used in this University. Our records show that we have never had any student or graduate by that name. . . .

19 Advice from Kabul University. On 11 June 2009, UAC wrote to Mr Kalim advising him that it had received confirmation from the Chancellor of Kabul University, Professor Hamidullah Amin, that the purported qualifications were not valid. UAC provided Mr Kalim with a copy of that letter and invited him to discontinue the proceedings. UAC also warned Mr Kalim that:

If you do not discontinue the proceedings in the Administrative Decisions Tribunal, our client will proceed with its application to have your complaints dismissed. If this application is successful, we are instructed to seek an order that you pay the UAC’s costs of defending the complaints.

. Mr Kalim responded on the same day saying that he had not attended Kabul University, he had actually attended Nagrahar University and that all Afghanistan University credentials are only issued in the name of Kabul University regardless of the university at which a person has studied. Mr Kalim went on to say:

I have withdrawn all the cases against you at the movement (sic) but you need obtain (sic) a true varification (sic), through a correct process. If a new evidence emerged (sic) then I will lodge complaint again, the issue is only finished for the time being. I will discuse (sic) this with Nagrahar University in that regards but as for (sic) as the medical transcript is concerned, I have undertaken in the Kabul Institute of Medicine which is separate institution but not the Kabul Uni. The letter from the Uni of Kabul is correct and as wel (sic) is incorrect.

. . .

I will start the process in Afghanistan again from Nangrahar faculty of science. Once I have concret (sic) evidence from there then if you refuse to assess my credentails (sic) then I will lodge a new complaint under the evidence.

26 In a second email to UAC written on the same day, Mr Kalim wrote:

I have written to the Tribunal of withdrawing my case but the issue is still remain unresolved. I am in proces (sic) of getting evidence and I have not undertaken study in Kabul but afilaited (sic) instituion (sic) Nangar faculty of science.

27 On 12 June 2009, Mr Kalim wrote to the Tribunal withdrawing his complaints against UAC. He confirmed to a Registry officer by phone that he was withdrawing all three complaints. The complaints were listed for dismissal on 24 June 2009.

28 Retraction of withdrawal. The following day, Saturday 13 June 2009, Mr Kalim emailed UAC under the heading, “None of these cases will be withdrawn if you blackmail me”. In that email he said that the proper procedure for verifying his qualifications was through the Ministry of Higher Education (MOHE) in Afghanistan. He said that within the next few days he would obtain information which would verify his qualifications.

29 Following Mr Kalim’s letter withdrawing his complaints, the matter had been listed for dismissal on 24 June 2009. Because Mr Kalim changed his mind about withdrawing the complaints a case conference was scheduled for that date. At that case conference the Tribunal listed UAC’s costs application for hearing on 29 October 2009. Mr Kalim said at that case conference that he has not actually withdrawn his complaints, rather he has been ‘forced’ to withdraw, otherwise charges would be laid against him. The 29 October 2009 date was vacated because it was agreed that the costs application should be determined on the papers: ADT Act, s 76.

30 On 26 June 2009 the Tribunal received a letter from Mr Kalim saying that he was not withdrawing his complaints because UAC has now said that they will apply for costs. Consequently, the complaints were not dismissed and UAC’s costs application was not determined.

. On 27 July 2009 UAC received an email purportedly from Professor Habibullah Habib, Chancellor of Balkh University, saying, in part, that:

I am directed by the Minister of Higher Education Muhammad Azam dadfar to notify you that we don,t (sic) recognize UAC due to its involvement in falsification of the credentails (sic) of Afghan applicants and racail (sic) discrimination. whenever, we have intreacted (sic) with the rest of the institutions in Australia, we have had no problem nor the students with them, but when it comes to uac, we are misled and provide falsified and irrelevant credentails (sic) in order to harm the Afghan applicants. This has been happening with us since 1996.

I have currently exctracted (sic) of Mr Neshat Kalim credentails (sic) from the uni of Kabul which was farwar (sic) in by uac for varification. (sic) i have avaulated (sic) the credentails,(sic) and the (sic) been made falsified. By providing, falsified credentails (sic) to the uni, uac was aiming to harm the applicant.

The email address from which this email was sent will be referred to in these reasons as ‘ABC’. Mr Stanton suspects that Mr Kalim is the real author of this email.

. On 16 September 2009, UAC received an e-mail attaching a letter from Professor Habibullah Habib in Arabic from a different e-mail address. The letter said, in part:

I understand you were seeking some information about the educational documents of Mr Nashat Kalim. I can confirm that the documents are not from Balkh University. Balkh University is an independent organisation. His allegation is completely untrue.

For your information I would like to stress that all universities in Afghanistan are part of the Ministry of Higher Education. The universities exercise some independence.

The authority which is able to assess all educational documents is Ministry of Higher Education.

33 Mr Kalim sent emails to UAC on 16 and 18 September 2009 saying that he would lodge further complaints of victimisation and discrimination. In particular, Mr Kalim said, “I will continuously bringing (sic) UAC to the Australian judiciary (sic) system for possible justice. Until such time that UAC has assessed my credentails (sic) from Afghanistan.” A further email sent to UAC sent to UAC which appears at p 44 of the President’s Report, reflects Mr Kalim’s sentiments:

If the issue was not resolved satisfactory (sic) between me and UAC then what will happen next:

1) I will go once again to the New South Wales appeal tribunal without any doubt, and I am sure that I will win the case this time and I will also ask for financail (sic) compensation not only for admissions.

2) If UAC interfare (sic) with my application in the UNI or provide wrong information then I will lodge an (sic) vaictamization (sic) complaint to the Board. It will be considered unecessary (sic) interferance (sic) in my case and certainly breach of the act of victamization, (sic) which carries heavy penalty.

3) I was new to the court system previously (sic) as to how I could defend my case but this time I have got experience, and difinately (sic) know how to defend my case in court effectivly (sic).

4) similarly, the Human rights and equal opportunity commission (sic) will terminate my case and i (sic) will apply to the Fedral (sic) Migistrate (sic) court in perth (sic), so UAC need a lawyer for Fedral (sic) case and not only i (sic) will ask for admisions (sic) but compensation to not less than $200,000 in case if we are unable to resolve the matter. so somebody else to decide for us.

5) I will also also apply soon to the Fedral court (sic) civilain (sic) branch in perth (sic) and you have gto (sic) manage a second lawyer civilain (sic) case.

6) each time and after each admisions (sic) period i (sic) will apply to the above organsitaion (sic).

7) Kabul University does not reciognize (sic) any tertiary admisons (sic) round the world because they are not proper institions (sic) and also involved in admuisions (sic) irregularity

8) I am not forcing UAC to assess my credentails (sic) but will continue knocking the door of the judiciary even if it takes 20 years and i don,t (sic) mind at all.

34 On 28 September 2009 UAC wrote to Mr Kalim enclosing a copy of the 16 September 2009 letter from Professor Habibullah Habib and inviting Mr Kalim to withdraw his complaints that were with the Anti-Discrimination Board and reconsider making further complaints. Mr Kalim responded by email on 29 September 2009 saying, among other things, that, “. . . until such time that my credentails (sic) has (sic) been assessed we will be in litigation.”

35 UAC wrote to Professor Habibullah Habib asking him to comment on the purported e-mails from him sent from the ABC email address address. No response was included in Mr Stanton’s affidavit of 21 April 2010.

36 On 30 September UAC received a further purported email from Professor Habibullah Habib from the ABC email address. The email said, in part:

We have received information seeking direct varification (sic) of Neshat kalim Credentails(sic).the credetnails (sic) are bogus, fake and has never issued by this institution(sic).however, the credentails (sic) that have been sent by Stanton (sic) are not from Afghanistan and totally in Arabic language, appeared to be from United arab emirates (sic). It should be noted that this is not the credentails (sic) that Mr neshat has submitted to uac for submissions.

It should be further noted that Mr Stanton has used such tactic in the past of sending falsified credentails (sic) for varification, where that Afghan applicants has never submitted for admissions.he (sic) is involved in this administrative functions since 1996, as you are not aware of that.

I don,t (sic) belive (sic) that neshat has submited (sic) credentails (sic) in arabic language

37 Mr Stanton suspects that Mr Kalim is the author of this email.

38 With the help of the Afghan Embassy, UAC attempted to verify Mr Kalim’s qualifications with MOHE. UAC wrote to the Afghan Embassy thanking them for attempting to verify Mr Kalim’s qualifications through the Ministry of Higher Education in Afghanistan (MOHE). Mr Stanton also expressed concerns in that letter as to whether the emails purportedly from Balkh University using the ABC email address were genuine. There is no response to that letter in Mr Stanton’s 21 April 2010 affidavit.

. On 10 November 2009, Mr Stanton received two emails from a gmail address which was not Mr Kalim’s usual address. Both emails were signed ‘XYZ’. The first said, in part:

1) i (sic) am not seeking the wining (sic) of the case in the tribunal and always require you to wine (sic) the case.

2) If i (sic) have not provided such information which could lead to hearing. If i (sic) win the case then you will assess the credentials and I don,t (sic) like that cus (sic) I don,t (sic) study. From 2007 onward, I have decided not to study.

3) i (sic) submit my case to ombudsman but I am not seeking to wine (sic) the case, but just to embrile (sic) yopu (sic) in litigation

4) i (sic) am not helping you at all in varification (sic) cus (sic) you will assess my credentials and I don,t (sic) like that. otherwise it is very easy for me.

5) I just want to keep you busy because you have destroyed my life and you can,t (sic) easly (sic) escape of me. You will always be in litigation.

6) I don,t (sic) want to make you upset by wining (sic) the case, wining (sic) of all cases congratulate to you. I am not inrested (sic) but only litigation.

7) If you are in litigation, that is what i (sic) am wining (sic).

8) I don,t (sic) create any such environment, (sic) where I wine (sic) the case or you will be asked to assess the dredentails (sic).

9) I will give up in 2016, and I will not bring any litigation against you.

10) if wine (sic) the case the, I will cancel my application, and I don,t (sic) want to study, I don,t (sic) want offer to be made to me under your singn (sic) but I would not let it happen at all. Even if you wine (sic) the case, it does not stop me from bringing litigation against you. New admission and new litigation.

11) I don,t (sic) care lack of in substances (sic) all refer that I just want you to be busy. You are always be with lawyer prepare affidavit for year and year.

12) I am always getting happy when you provide stong (sic) evidence.

13) you will see, I provide nothing to the ombudsman but just show them what you are doing.

I will never attempt to (wine) the case cuz (sic) I am not going to study.

14) I effectively isolated you through Afghan embassy, i have been successful in doing so. Apart from that in Afghanistan, no one will no longer help you, I have done prety (sic) much work there.. You are completly (sic) isolated.

15) the credentails (sic) of all Afghani are bogus, don,t (sic) assess it at all. This is good thing. i like litigation.

Yours sincerely

XYZ

40 The second email, also from XYZ, expressed similar sentiments. Mr Stanton suspects that Mr Kalim is the author of these emails.

41 At a case conference on 24 March 2010, the Tribunal made the following directions:

By 7/4/10, Applicant to file and serve statement summarising his case in matters 081108, 091033 and 091052. Applicant advised that he is unable to come to Sydney for a hearing because he works full time. The Tribunal Member decided not to set the matter down for hearing until Applicant had complied with the direction and provided evidence that he intended to travel to Sydney for the hearing.

42 Purported email from Mr Stanton to himself

. On 25 March 2010 Mr Stanton received an email purportedly from himself. The email, which was signed “Andrew Stanton”, was sent from an email address that contains Mr Stanton’s name but which is not Mr Stanton’s email address. Mr Stanton denies sending an email to himself and says that he has never created the email account from which the address was sent. The email closed with the following words, “You have wone (sic) previously (sic) case and this wining (sic) has has (sic) no affect (sic) on the litigation and I keep lodging a complaint. the same thing will happen again.” The solicitors for UAC wrote to Mr Kalim saying that because the e-mail is written in the first person about the Tribunal's orders made on 24 March 2010 it looks like the e-mail has emanated from him. The letter goes on to state that UAC and Mr Stanton object to any person representing to third parties that he or she is Mr Andrew Stanton.

43 14 April 2010 case conference. On April 2010 the matter was listed for hearing for 4 days - 26, 27, 28, 29 July 2010. Mr Kalim agreed to the matter being listed in Sydney and understood that he was required to attend in person. There were two important reasons that Mr Kalim needed to attend in person. Firstly, UAC had raised an issue about his identity. In Mr Stanton’s affidavit of 22 February 2008, he stated that on 11 January 2008 UAC received an email from Mr Paul Fallon, a member of the Western Australian Police attached to the Identity Strike Force Team, Economic and Special Operations of the Australian Federal Police (AFP). The email stated that it was the view of the AFP that Mr Kalim had used at least five other identities for the purpose of applying to study at universities throughout Australia. Secondly, UAC had made serious allegations that Mr Kalim had falsified his qualifications and falsified emails and, in fairness to him, it was important that he be available in person to respond to those allegations.

44 On 27 April 2010, three days after the matter had been listed for hearing, Mr Kalim wrote to the Tribunal under the heading, “I can't attend hearing this situation is clear.” He wrote that he would not be able to take advantage of the decision in his favour because the students who were admitted to the courses have now completed their degrees or are in their final year. He added, “This was the main reason it was agreed that the respondent to dismiss the case, as I could not get the benefit of it.”

45 On 17 May 2010 Mr Kalim wrote Tribunal again saying:

I have catograrically (sic) say that I can't attend the hearing either by phone or in person.. .

Each time the Tribunal has changed decision on the behest of the respondent as there is a problem with system (sic).

. . .

Finally, I would travel in July to Afghanistan and I would not be here at all. This is up to you as to what you are doing with this case. The Tribunal represents Andrew Stanton not the act.

46 On 28 May 2010, Mr Kalim emailed the solicitors for UAC saying that he could not attend the hearing in Sydney. He said that ‘it is hard for me to come to Sydney’ and he would be ‘abroad’ in July.

47 The matter was listed on 4 June 2010 to determine the future conduct of the proceedings. At that hearing Mr Kalim said words to the following effect:

I will not attend the hearing because I am sick. I am going to Afghanistan for treatment.

There is no email or post in Afghanistan because of the war. You can't contact me because I am going to have treatment. E-mail does not work in my country. I can give you an address in Afghanistan but the post does not work.

48 Mr Kalim said that he wanted a new hearing date but he would not be available until he came back from Afghanistan in 2011. When I asked Mr Kalim whether he would be available for a hearing next year, Mr Kalim said, ‘Maybe’ but in the meantime he said he would lodge further complaints with the Federal Court and other agencies. His application for adjournment was refused on the basis that there was no documentary evidence of his illness or his travel plans and the matter had been on foot since October 2008. As Mr Kalim refused to withdraw his applications, the complaints were dismissed for ‘want of prosecution’: ADT Act, s 73(5)(g)(iv).

49 Mr Kalim offered several reasons for his decision not to attend the July hearing. Firstly, he said he was working full time. Secondly he said there was no point continuing with his complaints and attending a hearing in Sydney because even if the complaints were substantiated, the courses for which he was applying have now commenced. In his words:

Upon wining (sic) he (sic) decision I would have chucked the decision in the rubbish bin cus (sic) I would not be able to utilise it for admissions but I exercised my patience.

50 Despite that sentiment, Mr Kalim did not withdraw his complaints. His third reason for not attending the hearing in Sydney was that he had a “life threatening illness” and as a result is unable to “defend himself effectively.” He said he would be risking his life if he came to Sydney and postponed treatment for his illness. Fourthly, Mr Kalim said that he would be travelling to Afghanistan in July and would not be available. At one stage he said he was travelling there to receive treatment for his illness.

Discussion and conclusion

51 Despite the general rule that each party should pay their own costs, and despite the fact that these proceedings are in the Equal Opportunity Division, I am satisfied that it is fair for Mr Kalim to pay UAC’s costs having regard to the fact that he has:

a) prolonging unreasonably the time taken to complete the proceedings; and

b) vexatiously conducted the proceedings.

52 UAC has presented evidence that Mr Kalim knowingly presenting false transcripts to UAC, however I make no finding in relation to that evidence in these proceedings. The allegation is very serious. Given the fact that the complaints were dismissed for want of prosecution, Mr Kalim has not had to respond at a hearing to those allegations. It would not be procedurally fair to make findings about such serious matters in the absence of an oral hearing. The same considerations apply to the allegations about the authenticity of the various emails discussed in these reasons. Consequently, the order for costs is not based on a finding that Mr Kalim attempted to deceive UAC or the Tribunal or on a finding that his claims are weak.

. These proceedings were first referred to the Tribunal on 24 October 2008. For a period of 18 months, from the first case conference until the matters were dismissed, attempts were made to prepare the complaints for hearing. During that time, Mr Kalim gave various inconsistent responses to questions about his complaints, changed the factual basis of his complaints and changed his mind about many of the procedural aspects of the complaints. For example, Mr Kalim:

a) advised the Tribunal and UAC at the first case conference on 4 February 2009, that his claim was limited to his semester two application. That clarification led to directions being made for evidence to be prepared for a strike out application. Mr Kalim subsequently changed his mind to say the complaint was about the application for the beginning of 2008 intake and then made a further complaint about the beginning of 2009 intake;

b) refused to agree to amend the complaint thus putting UAC to the time and expense of seeking such an amendment which was granted by the Tribunal on 25 May 2009;

c) agreed to withdraw his complaints in June 2009 then changed his mind at the case conference on 24 June 2009 and again on 24 March 2010;

d) asserted that his qualifications were from Nagrahar University when confronted with evidence that they were not from Kabul University;

e) agreed in April 2010 to attend a hearing in July 2010 and then advised in May 2010 that he would be unable to attend without any evidence supporting the myriad reasons for his non-attendance.

54 Mr Kalim has said on several occasions that a hearing would have no utility because he has missed the opportunity to study at university in 2008 or 2009. If that were Mr Kalim’s true sentiment he would have withdrawn his applications at an early stage. Instead, he continued to make, or threaten to make, further complaints, not only to the ADB but to the Australian Human Rights Commission, the Ombudsman and the Federal Court. The second reason Mr Kalim gives for not attending a hearing is that he suffering from a life threatening illness. Mr Kalim has never identified the nature of that illness or provided any evidence of it from a medical practitioner. I am not satisfied that he is suffering from a life threatening illness which prevented him from travelling to Sydney for the hearing. Finally, if Mr Kalim was planning to be in Afghanistan in July he made those plans knowing that a hearing had been set down for 4 days in July. This is not a case where Mr Kalim withdrew the complaints close to the hearing dates: Cf Rae v Commissioner of Police, New South Wales Police Force (No 3) [2010] NSWADT 254 (26 October 2010). Instead he agreed to the matter being set down for hearing in Sydney but later refused to attend the hearing for reasons which I do not accept as legitimate.

55 Vexatiously conducting the proceedings. Mr Kalim told UAC repeatedly that he would continue applying for admission in years to come and complain if his qualifications were not accepted. From the time the first complaint was referred to the Tribunal on 24 October 2008 until all three complaints were dismissed on 4 June 2010, Mr Kalim has sent numerous emails to UAC saying that he intends to continue making complaints to the Anti-Discrimination Board and the Australian Human Rights Commission. He also said that he would complain to the Federal Court.

56 Proceedings may be vexatious if they are instituted with the intention of annoying, harassing or embarrassing a respondent, if they are brought for a collateral purpose, are devoid of any practical effect, or are manifestly untenable: Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 at 491; Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 21 AAR 467 at [30] and [31]; Margan v University of Technology, Sydney [2003] NSWADTAP 65 at [9]- [11]; Wilde v University of Sydney [2004] NSWADTAP 32 at [10]; Miriani v Commissioner for Fair Trading [2005] NSWADT 99 at [28]). The email and other communications from Mr Kalim to UAC satisfy me that Mr Kalim has vexatiously conducted the proceedings. His intention is to continue making complaints and commencing legal proceedings in every available agency, tribunal and court for “20 years” if necessary. He has commenced these proceedings for the purpose of annoying and harassing UAC.

The Applicant is to pay the respondent’s costs as agreed, or if not agreed, as assessed under the Legal Profession Act 2004.