Margan v University of Technology, Sydney

[2003] NSWADT 133

Set aside by Appeal: Set aside by Appeal on 4 December 2003

CITATION:	Margan -v- University of Technology, Sydney [2003] NSWADT 133
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Simon Margan RESPONDENT University of Technology, Sydney
FILE NUMBER:	021097
HEARING DATES:	03/04/2003
SUBMISSIONS CLOSED:	04/03/2003
DATE OF DECISION:	06/05/2003
BEFORE:	Needham J - Judicial Member; Antonios Z - Member; Nemeth de Bikal L - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Langley v. Niland & Anor [1981] 2 NSWLR 104 Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Hill v. University of New England (1990) EOC ¶92-291 Z (No 3) v. University of A [2001] NSWADT 182
REPRESENTATION:	APPLICANT In person RESPONDENT D O'Hara, solicitor
ORDERS:	The applicant’s complaints are dismissed pursuant to s 111(1) of the Anti-Discrimination Act 1977.

Application

1 The President of the Anti-Discrimination Board received complaints under the Anti-Discrimination Act 1977 (NSW) (“the Act”) from Mr Simon Margan, on 7 September 2000 (“the first complaint”) and 23 January 2002 (“the second complaint”). Mr Margan (who will be referred to as “the applicant”, despite the fact that this is the respondent’s application) alleged that he had been discriminated against and victimised on the ground of homosexuality in education - that is, under ss 49ZF, 49ZG and 49ZO, and ss 50 and 53, of the Act.

2 The complaints were investigated and Acting President Smyth declined them as lacking in substance pursuant to s 90(1) of the Act. The applicant requested, on 19 August 2002, that the matters be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal pursuant to s 91(2) of the Act.

3 The matter came before Judicial Member Jane Needham for case conference on 27 September 2002. In accordance with Division practice, the applicant was informed at that case conference that further material should be provided in support of the complaint as it had already been declined by the Anti-Discrimination Board. The matter was listed for a further case conference on 29 November 2002, at which case conference the named respondent, the University of Technology, Sydney (“the respondent”), indicated that it wished to make application pursuant to s 111 of the Act. That section provides, relevantly:-

“(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint”.
4 The s 111 application was listed for hearing on 30 January 2003 but was adjourned since the applicant wished to obtain legal advice and possibly representation. The matter was heard, with the applicant representing himself, on 3 April 2003.

Facts

5 The facts in this application are extensive and supported by comprehensive documentation, and what follows is a summary of the important facts as they appear to the Tribunal. The Tribunal has read the entirety of the material placed before it on this application and in support of the original complaints to the Anti-Discrimination Board, and the fact that a particular matter is not mentioned here does not mean that it has been overlooked or ignored. The file is voluminous and covers a great deal of ground, not all of which is relevant to this application.

6 The applicant is a student at the University of Technology. He identifies as homosexual, commencing the first complaint to the Anti-Discrimination Board with “I am a gay student ...”. He alleges that he has been discriminated against by reason of his homosexuality. He does not need to be homosexual in order to attract the jurisdiction of the Tribunal (see s 49ZF of the Act).

7 The complaints were summarised by the President of the Anti-Discrimination Board under cover of his letter to Dr FitzGerald, the Registrar of the respondent, dated 3 April 2002. At the first case conference, the applicant acknowledged that that summary was an accurate encapsulation of his complaints. The summary reads:-

1. On 16 February 2000, the registrar advised (the applicant) that his academic record would not be altered from a
Master’s to PhD to reflect the true nature of his enrolment. In this letter he was advised that he would not be given the possibility of enrolling in a PhD course. The reason given revolved around a computer incident in June 1999. He appears to be alleging that this is an example of victimisation arising from his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn.

2. On 16 June 2000, University of Technology (in its Council meeting) decided not to fund a special grant to the Organising Committee for a float in the 2001 Sydney Gay and Lesbian Mardi Gras. He alleges that the method used to arrive at this decision amounts to homosexual discrimination against himself in the area of education.

3. On 28 August 2000, proceedings were taken to exclude Mr Margan from study. He alleges this was a result of his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn.

4. On 16 August 2001, he was advised that he would not automatically be given the opportunity to appeal [from] a decision that effectively ended all possible avenues of his completing a PhD project at UTS. This effectively excluded him from study. He alleges this occurred because of his homosexuality and victimisation arising from his conflict with Dr Conn”.

8 The applicant provided a large volume of material to the Anti-Discrimination Board, including a summary of the applicant’s relationship with Dr Conn (which could be described as stormy, at the very least). The applicant approached the Local Court for an AVO in relation to his supervisor. The “computer incident” referred to in paragraph 1 of the President’s summary refers to the destruction of Dr Conn’s computer by the applicant in retribution, he alleges, for Dr Conn “roughing him up”, shaking him by the lapels. In material submitted in relation to his first complaint, the applicant says that his complaint is:-
“not of the assault. My complaint concerns the inadequate way in which the university investigated my complaint.”
9 The University replied to the two complaints by letter of 8 May 2002. In relation to each complaint, in summary, the reply was:-
1. The applicant was admitted into the Master’s programme, and informed that he could be transferred to a doctoral programme subject to satisfactory research performance during his Master’s candidature. He applied for transfer to a PhD in 1999 and that application was successful. The academic record is a transcript of his time at the University and there is no reason, or ability, to have it changed to reflect matters which did not take place.

2. The respondent’s Functions and Objects are regulated by statute, and the Council decision not to fund a float in the Gay and Lesbian Mardi Gras was based on the promotion of the statutory objects of the respondent, and not upon the sexuality or sexual preference of the applicant.

3. The exclusion proceedings were based upon the applicant’s conduct, inter alia, his destruction of university equipment, and not for any other reason.

4. The applicant was not precluded from appealing from the decision of the Student Conduct Committee or the decision of the Vice Chancellor, and failed to do so.”

Again, the Tribunal has read the information provided and the fact that the above is a summary, not a detailed dissection of all the material, does not indicate a lack of attention to detail by the Tribunal.

10 On 25 July 2002, the Acting President of the Anti-Discrimination Board wrote to Mr Margan. That letter said:-

“I have decided your complaints are “lacking in substance” under s 90(1) of [the Act]. ... The reasons for my decision are as follows:-
You have not provided any information to show that there was an error in the record of your enrolment at the University of Technology, Sydney (UTS), that it was necessary for it to be altered or that UTS had the ability to do so.

You have not provided sufficient information to show that the failure to alter the record amounts to unfair treatment, or is in any way related to your homosexuality and/or victimisation arising from the incidents of June 1999.

UTS has provided sufficient information to demonstrate that the action of excluded you was a result of the findings of the disciplinary hearing in relation to the destruction of the computer equipment, and other matters, including complaints against you from students and staff.

You have not demonstrated that you were prevented from appealing [from] the findings of the conduct committee.

You have not provided any information to demonstrate that the decision of UTS not to fund an entry in the Sydney Gay and Lesbian Mardi Gras caused a detriment to you in your capacity as a student of UTS, nor that the decision was in any way connected to your homosexuality”.

11 As noted above, Mr Margan was invited to provide further evidence in support of his complaints in the light of the finding by the Acting President that his complaint was “lacking in substance”. He filed a significant amount of material under cover of a document headed “Reply to Lack of Substance Complaint” (“Reply”) which was received by the Tribunal on 22 November 2002. The Reply deals with each of the Acting President’s findings in turn.

Consideration of the s 111 Application

12 What test should be applied under s 111? The words “misconceived” or “lacking in substance” apply where there exists no factual basis for the allegations, or that the allegations lack merit - see Langley v. Niland & Anor [1981] 2 NSWLR 104 at 107D-G; Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) at 6. The words “frivolous” and “vexatious” reflect the summary dismissal provisions of Part 13 r 5 of the Supreme Court Rules. In effect, the respondent needs to show that the case is hopeless; a submission that the applicant’s complaint is lacking in substance is analogous with a “no case to answer” submission in civil proceedings. See Hill v. University of New England (1990) EOC ¶92-291 at 77,940. The applicant’s case must, in effect, be taken at its highest and the question asked - if the facts alleged by the applicant are proved at a hearing, will the applicant still fail? Of course, some applicants require proof of issues through cross-examination of the respondent’s witnesses, and that factor should be taken into account when assessing likelihood of success or failure on a s 111 application.

13 It is appropriate here, before dealing with the applicant’s Reply in detail, to set out the Tribunal’s view on the original complaints. Although a s 111 application is not an appeal from the finding of the Anti-Discrimination Board in declining the complaint, in this case the Tribunal agrees with the Board that the original complaint “lacked substance” for the reasons given by the Acting President. In particular, there is no evidence at all in the original complaints that the University acted as it did (in refusing to amend its enrolment record to show the applicant as always having been enrolled in a PhD, rather than reflecting his commencement of a Master’s degree; in refusing to fund the Mardi Gras Float; in excluding him from study and in the conduct of the appeal) on the basis of an unlawful discrimination on the grounds of the applicant’s homosexuality. There is no link, legal or factual, between the applicant’s homosexuality and the matters complained of. Indeed, there is very little reference to homosexuality in the original trigger for these complaints, the alleged harassment by Dr Conn. There is, on the other hand, in relation to the enrolment, exclusion and appeal complaints, documentary evidence that the University followed its own policies and procedures in taking the various actions. In relation to the Mardi Gras funding, the Council decision was not related to the applicant at all, as reflected in the Council minutes.

14 Accordingly, therefore, unless the Reply provides more evidence which takes the complaint out of the “bound to fail” category in which both this Tribunal and the Anti-Discrimination Board place it on the basis of the material in the first and second complaints, the respondent’s s 111 application will succeed. On that basis, it is necessary to consider the further information contained in the Reply as it relates to the findings of the Anti-Discrimination Board.

15 Error in the Record of Enrolment and link to homosexuality:- The applicant contends that the University handbook requires the University to accept students with upper level Honours degrees into the PhD programme. The handbook states (document A to the Reply):-

“Applications for the PhD programme will be accepted at any time and a decision will be advised following consideration by the relevant research degrees committees. Candidates may be admitted to the program with a Bachelor’s Degree with First or Second Class Honours Division 1 from UTS, or an appropriate Master’s Degree from UTS, or an equivalent qualification”.

The applicant attained the degree of Bachelor of Applied Science (Honours) in Chemistry with Second Class Honours, Division 1. He was later accepted into the PhD programme as envisioned by the letter dated 2 April 1996 from the Academic Registrar “subject to satisfactory research performance”.

16 The applicant makes two new submissions in his Reply in that “Elements within the University have prevented me from obtaining a PhD qualification”. He contends that:-
“no other student at UTS or any other university who has received a 1st Class or upper second has been put into a Master program instead of a PhD .. It was made clear to me by Assoc Prof. Baker and Dr Costa Conn after they had used their influence to change my records that they had done this because of my sexuality. This was conveyed to me during the numerous times they had verbally relayed the reasons for opposing my entry to the PhD program (Document “N”).”
17 There is no evidence of the first of these two allegations (that his treatment is unique). It would have been simple to issue a Summons for production of student records to prove such a statement. Even if it were true, it does not prove that the applicant is treated uniquely because he is homosexual.

18 As to the second allegation, Document “N” is an unsworn Statutory Declaration dated 22 November 2000 which says, in part:-

“On a number of occasions that reason for my inability to gain entrance to the PhD program was specifically linked to my homosexuality. On one of the many occasions the reasoning used by the Head of Department, Dr Baker, was that being someone who was gay would not meet up to the calibre of the type of person that was sort after for the PhD program.

“The PhD program has a certain set of standards. You being like you are, gay, do not meet up with the standards of the type of person we admit into this course”.

When I was asked to approach Costa Con by one of the councillors he specifically told me that:-

“Dr Baker and I have made sure that you are not admitted into the PhD course. You are gay!””

19 Document “N” was not included in the first and second complaints. The substance of Document “N” was not alluded to in the first and second complaints. When asked about this during the hearing of the s 111 application, Mr Margan said that he had dealt with the substance of the document. However, when asked to show where he had made the allegations now set out in Document N in the first and second complaints, he was unable to point to those allegations.

20 The respondent dealt with the contents of Document “N” by submitting that as it was not a sworn statement, they were under no obligation, at a s 111 application, to bring witnesses to rebut the evidence, but that each of the people to whom the statements are ascribed deny making those statements.

21 The applicant submits that where there is an evidential issue, that issue should be resolved at a hearing and not at a dismissal application. He cites Z (No 3) v. University of A [2001] NSWADT 182 in support of this contention. The contention is clearly, as a matter of principle, correct. He submits that the Tribunal must accept that the remarks were made and that “the unfair treatment I had received including the alteration of my enrolment, the harassment I had received for several years and the assault were all based on my sexuality”.

22 That may be so. But the Tribunal has not been asked to consider that specific complaint of harassment, nor of the assault. The questions before the Tribunal are set out in paragraphs 7 and 8 of this decision and they specifically relate “not to the assault, but the way that the University dealt with my complaint” - that is, the matters set out in the Anti-Discrimination Board’s summary.

23 The statements made in Document “N” do not bear on the alleged “error” in the enrolment, as the documents provided by the University show that the enrolment was not “changed”, except to enrol the applicant in a PhD programme when he applied to do so in 1999. Nor, it is clear, was the original record of the applicant as a Master’s student in error. The Tribunal accepts that the academic transcript should reflect the actual enrolment of the applicant, not of what he felt he was entitled to by reason of his undergraduate degree. The late production of the Document “N”, and the signal failure of the applicant even to mention the effect of those statements in his first and second complaints, impacts heavily on its weight.

24 The only aspect of the case which could bolster the allegations, therefore, is Document “N”, which will be dealt with below.

25 Exclusion of the Applicant - Again, Mr Margan raises Document “N” as “further evidence” that his exclusion from study was a result of his lecturer’s discriminatory conduct towards him. There does not, apart from Document “N”, appear to be anything new in his Reply. The University’s documentation of the exclusion relates only to matters which would clearly justify the exclusion; destruction of property and other issues of misconduct.

26 Again, the only new evidence is Document “N”.

27 Prevention of Appeal - The applicant contends in his Reply that the University “has closed its dealings with me on this matter”. He admits that he did not take part in the appeal against his exclusion. There is nothing new in the Reply which would add to the material considered by the Board and by the Tribunal on the first and second complaints.

28 Funding of the Gay & Lesbian Mardi Gras Float - Mr Margan seeks to characterise the resolution in the Council minutes as homosexual vilification and unlawful under s 11 of the Act. This is not part of the complaint before the Board or the Tribunal. Further, he points to his election as Sexuality Officer of the OUTS Action Collective for 2002, seemingly as evidence of the link between his homosexuality and the funding decision. The Council meeting at which the funding decision was made was held in 2000.

Consideration of Document “N”.

29 As noted above, Document “N” is an unsworn statutory declaration alleging comments by Dr Conn and Dr Baker that the applicant was excluded, by them, from the PhD course because of his sexuality. It must be assumed, for the purposes of this application, that the applicant would swear the statutory declaration if need be. The allegation is very serious. It is, as noted above, denied by the University solicitor on her instructions.

30 The two complaints in which Document “N” is called in aid are that the University refused to amend the applicant’s academic transcript, and that he was excluded from study. Document “N”, on its face, does not go directly to either of those complaints. The facts alleged in it go to the harassment alleged by the applicant at the hands of his lecturer, and to the original decision of the University not to admit him to the PhD course, but into a Master’s degree. The complaints, as formulated by the Anti-Discrimination Board and as accepted by the applicant, would not be decided differently in the Tribunal’s opinion even if the conversations alleged in Document “N” were established to the requisite degree of proof.

31 The Tribunal has had difficulty reaching a decision on the impact to be afforded Document “N”. On the one hand, the allegations do not appear to be directly relevant to the complaints to which they are called in aid and, as a document which makes its appearance very late in the play, its weight is questionable. On the other hand, it is possible that, if the allegations made in it are, at a hearing and after cross-examination, accepted by a Tribunal, the required link between the university’s conduct and unlawful discrimination may be made.

32 The decisive factor is, in the Tribunal’s view, whether the allegations are directly relevant to the complaints. As the complaints are formulated by the Anti-Discrimination Board (and were accepted by the applicant as accurate summaries), the allegations in Document “N” cannot make any difference, even if found to be true. The first complaint for which Document “N” is offered as evidence relates to the failure by the University to alter the academic record. As noted above, there is no evidence provided by the applicant to show that this should have been done, nor that the failure to do so related in any way to his homosexuality. Document “N” does not change this. The second complaint relates to the exclusion of the applicant from study. Again, he says that this is a result of victimisation; again, there is nothing, even in Document “N”, which links the exclusion to the applicant’s homosexuality.

33 Accordingly, those two complaints should be dismissed pursuant to s 111(1) of the Anti-Discrimination Act 1977 as lacking in substance.

34 The other two complaints - that the applicant was prevented from pursuing his appeal, and the matter of the funding of the Gay and Lesbian Mardi Gras float - are, for the reasons given in paragraph 13 above, misconceived and lacking in substance, and will be dismissed pursuant to s 111(1) of the Anti-Discrimination Act.

Orders of the Tribunal

35 The Tribunal orders:-

1. The applicant’s complaints are dismissed pursuant to s 111(1) of the Anti-Discrimination Act 1977.