Mewett v The University of Sydney

[2019] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mewett v The University of Sydney [2019] NSWCATAD 199
Hearing dates:	3 September 2019
Date of orders:	25 September 2019
Decision date:	25 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill
Decision:	Leave to proceed is refused under section 96 Anti-Discrimination Act
Catchwords:	EQUAL OPPORTUNITY - disability discrimination in education - leave required for complaint to proceed - principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 King v University of Notre Dame Australia [2017] NSWCATAD 58
Category:	Procedural and other rulings
Parties:	Scott Mewett (Applicant) University of Sydney (Respondent)
Representation:	Solicitors: S Hargreave (As Agent)(Applicant) Office of General Counsel, University of Sydney (Respondent)
File Number(s):	2019/ 00097551
Publication restriction:	N/A

REASONS FOR DECISION

1. These proceedings concerned an application by Mr Mewett for leave to proceed with a complaint of disability discrimination in education against the University of Sydney. The complaint was declined by the President of the Anti-Discrimination Board (ADB) on the basis that it was lacking in substance. Mr Mewett requested that the President of the ADB refer the complaint to the Tribunal. Section 96 of the Anti-Discrimination Act (ADA) requires that when the President of the ADB declines a complaint the complainant must obtain the leave of the Tribunal to proceed.

Background

2. On 30 May 2018, Mr Mewett lodged a complaint with the President of the Anti-Discrimination Board (the President) alleging that he had been discriminated against by the University of Sydney in the area of education, on the grounds of disability. Mr Mewett was enrolled in a Bachelor of Architecture degree at the University of Sydney. Mr Mewett states that he has several cognitive disabilities caused by an acquired brain injury, anxiety and depression. These disabilities make it difficult for him to communicate in writing. Specifically, Mr Mewett complained that the University had not accepted his withdrawal from 3 subjects. These were recorded against his University academic transcript as fails. This meant that he was unable to enrol in another degree course he wished to undertake.

3. Mr Mewett stated in his complaint to the ADB that the discrimination had begun in the middle of 2015 and going into 2016. It was ongoing.

4. However, the complaint was accepted by the President of the ADB for the period 30 May 2017 to 20 May 2018 – that is for the 12 month period prior to Mr Mewett’s lodgement of his complaint.

The Respondent’s case

5. The Respondent stated in its submissions to the NSW Civil and Administrative Tribunal (NCAT) that it had received no requests from Mr Mewett during the complaint period of 30 May 2017 to 30 May 2018 to withdraw from any units of study. Mr Mewett was either not enrolled in any units of study or had suspended his studies during the complaint period.

6. The Respondent had no record of Mr Mewett requesting withdrawals during the complaint period 30 May 2017 to 30 May 2018, and if such a request had been received, it would have been refused because of the timing of his request.

7. The University's Coursework Policy 2014 provides that a student may withdraw from a unity of study before the Census Date. In 2016, the Census Dates were 31 March 2016 for units of study in semester 1 2016, and 31 August 2016 for units of study in semester 2, 2016.

8. The Coursework Policy 2014 also provides that a student may discontinue from a unit of study with a record on the student's transcript of 'Discontinued not to count as failure' after the Census Date but before the end of the seventh week of semester. That is, the period 1 April 2016 to 15 April 2016 for semester 1, 2016 and 1September 2016 to 9 September 2016 for semester 2, 2016.

9. In the event that Mr Mewett had requested to withdraw from the units of study in question during the complaint period (30 May 2017- 30 May 2018), the request would have been outside the required timeframes and as such Mr Mewett would have been ineligible to withdraw or discontinue the units of study in question.

10. In addition, Mr Mewett had not provided the University with any evidence of exceptional circumstances as to why he could not withdraw within the required timeframe.

11. If a student wishes to withdraw from a unit of study, they would usually do so via the University's Sydney Student portal. If a student is unable to comply with this practice, the Respondent considers the issue on a case-by-case basis.

12. Between February 2015 and August 2018, Mr Mewett used the Sydney Student portal to discontinue and withdraw from various units of study, to apply to suspend his studies and to submit an internal course transfer application. For example, between 21 February 2015 and 1 April 2015 Mr Mewett used the Sydney Student portal to withdraw from seven units of study.

13. The Respondent had made extensive efforts to accommodate Mr Mewett's disabilities, including the installation of Dragon Naturally Speaking dictation software on to his laptop computer.

14. The Respondent had not unlawfully discriminated against Mr Mewett. Mr Mewett had not provided any factual or evidentiary basis to support a finding that, on the ground of disability, he had been treated less favourably than a comparator, or that the Respondent had imposed any unreasonable requirement or condition that Mr Mewett was unable to comply with.

15. The Tribunal understands that the President declined Mr Mewett’s complaint (the Complaint) on the ground that the complaint was lacking in substance. See 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) (the Act). As a consequence, the Complaint may not be the subject of proceedings before the Tribunal without leave of the Tribunal: s 96(1) of the Act.

16. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

Statutory framework and principles governing the grant of leave

17. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

18. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii).

19. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

20. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).

Principles for granting leave under section 96 of the ADA

21. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Statutory framework: unlawful discrimination

22. The Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability:

49L Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

...

23. “Disability” is defined to include the malfunction, malformation or disfigurement of a part of a person’s body, and a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour: s 4 of the Act. Disability includes past, future and presumed disability: s 49 A of the Act.

24. It was not contested, and the Tribunal accepts for the purposes of these proceedings that Mr Mewett has a disability within the meaning of the ADA.

25. The University has argued that during the complaint period Mr Mewett was not a student of the University. However, for the purposes of considering this leave application the Tribunal will hypothetically accept that Mr Mewett was in the relationship of student with the University of Sydney as an educational authority under section 49L. It is not certain however, that a Tribunal would conclude this at any substantive hearing.

Discrimination on the ground of disability

26. The Act explains what constitutes discrimination on the ground of disability:

49B What constitutes discrimination on the ground of disability

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability ..., treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability ..., or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, ..., comply or are able to comply, being a requirement, which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

...

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

27. Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Mr Mewett’s complaint to the ADB dated 30 May 2018

28. Mr Mewett’s complaint to the ADB dated 30 May 2018 was dictated to an officer of the ADB. To make greater sense of the complaint set out below the Tribunal has made some suggested amendments to the written complaint as shown in brackets.

29. Mr Mewett stated that the complaint began in the middle of 2015 and is going into 2016 and was on going.

30. The complaint stated that in 2016 second semester, (or there about), I applied for special consideration to make and all multiple complaints and of nature and I applied through the appropriate departments and requests. I requested to give my complaints verbally.

31. They were of highly complex nature involving misconduct by staff at the University of Sydney. The University refused on multiple occasions to allow me to verbally, insisting that it had to be done by documentation. I continued requesting this throughout 2016 semester and 2017 semester. At one point through that process the head of disability services reviewed a letter from my psychiatrist relating to the matter and declined firmly to not give this verbally. This equals my expressions of complaints and something else. University of Sydney does not have a policy of disallowing complaints verbally in person or telephone. Therefore, I understand the University has discriminated me against my disability. Current email from the University declaring such things to declare verbally. As a result of the discrimination I was not afforded the opportunity to withdraw from the units of study that I was enrolled in. As a result, not being able to withdraw after census date. I have received three failed units on my academic record.… As a consequence, failed three units which I failed not in attendance for those units and did not complete course work. I am not eligible (now) to transfer to another undergraduate degree that I have requested Bachelor of Design and Computing.

32. I am continuing to have the University (accept my) complaint and withdrawal of these units that I have been given in order to have a suitable academic record to transfer to the Bachelor of Design and Computing.

Tribunal’s understanding of the intent of the complaint

33. It appears from this complaint that Mr Mewett had not attempted to withdraw from the units in writing at any time as this complaint focused on not being permitted to withdraw verbally. Further Mr Mewett stated that he was not able to withdraw after the census date. It is not clear from this whether Mr Mewett attempted to withdraw verbally prior to the census date.

34. It is clear from the complaint however, that Mr Mewett’s concern is that the three fails on his record were impacting upon his capacity to transfer to the Bachelor of Design and Computing. He considered that his disability meant that he was unable to put things in writing as required and that this requirement was unreasonable for him.

Mr Mewett’s submissions on why leave should be granted

35. In his submissions to the Tribunal Mr Mewett described the current proceedings before the Tribunal as an application to withdraw from three academic units without financial or academic penalty after the University’s relevant census date. Mr Mewett stated that if leave is not given to proceed to hearing and allow the opportunity for an outcome in Mr Mewett’s favour, there would be consequences that could severely impact upon Mr Mewett’s future. If the University were not to acquiesce, either voluntarily or at the direction of the Tribunal to Mr Mewett’s withdrawal from these units without penalty, the financial impact on Mr Mewett’s HECS debt would prove a significant burden for a person who has extremely limited access to funds. Apart from purely financial considerations, the knowledge of the escalation of the debt would have a negative influence on the state of Mr Mewett’s already tenuous mental health and follow through to the state of his physical health. On a different level, but equally as problematic, is the possibility that an academic penalty may curtail his ability to enrol in future chosen units of study. Mr Mewett referred to accommodations of his needs provided by Curtin University Western Australia and University of Technology Sydney in this regard.

The Respondent’s Submissions

36. The Respondent relied on its written response to the complaint, dated 28 August 2018 and further information provided on 22 January 2019, in support of its submission that the complaint is lacking in substance and that the Tribunal should refuse leave

37. The Respondent submitted that Mr Mewett's submissions did not engage with the legal principles to be considered by the Tribunal in determining whether to grant leave for Mr Mewett's complaint to proceed.

38. Mr Mewett's submissions attached a number of medical certificates, one of which was dated during the complaint period. However, Mr Mewett's submissions did not indicate when during the complaint period Mr Mewett submitted or attempted to submit a request to withdraw from the relevant units of study. The Respondent submitted that the Tribunal could not be satisfied that a disability discrimination claim could be substantiated. Mr Mewett did not advance evidence of an instance in which he was treated less favourably by the Respondent than a person who is not disabled in the same circumstances, nor that disability was a basis for any such treatment.

39. The Respondent submitted that Mr Mewett had not discharged the onus of demonstrating that leave should be granted. The Respondent submitted that Mr Mewett's complaint was lacking in substance because:

1. there was no evidentiary or factual basis to support specific allegations made by Mr Mewett; and

2. even if some specific allegations were made out, there was no evidentiary or factual basis that could result in a finding that the Respondent unlawfully discriminated against Mr Mewett and contravened the Anti-Discrimination Act 1977 (NSW).

40. For these reasons, the Respondent submitted that it would not be fair and just for leave to be granted and leave should be refused.

Tribunal’s consideration

41. In answering the question of whether leave for the Complaint to proceed should be granted, the Tribunal must examine the Complaint and decide whether in the circumstances of this case it is “fair and just” to grant or refuse leave. In undertaking that task the Tribunal must consider among other things, whether, if the facts asserted by Mr Mewett are accepted, cast as a complaint of direct and/or indirect discrimination, the impugned conduct might disclose a contravention of the Act.

42. For the purpose of this exercise the Tribunal assumes but does not decide that Mr Mewett would be entitled to rely on s 49L(2) of the ADA.

Complaint of direct disability discrimination

43. To establish a complaint of direct disability discrimination under section 49B(1)(a) Mr Mewett would need to establish:

1. That the University treated him less favourably, in the same or similar circumstances, than it treated, or would have treated a person who was not presumed to have the conditions of acquired brain injury, depression and anxiety (less favourable treatment); and

2. That one of the reasons for that less favourable treatment was because of his disability, a characteristic that generally appertains to, or is generally imputed to persons with his particular disability (causation).

44. The first element requires a comparison to be drawn between the treatment afforded Mr Mewett and the treatment that was afforded, or would have been afforded, to a person/student not thought to have Mr Mewett’s disabilities (or substantially the same condition), in the same or similar circumstances to Mr Mewett. Critical to that exercise, is the identification of the circumstances surrounding the alleged less favourable treatment.

45. It is not clear from Mr Mewett’s complaint to the ADB or his submissions that during the period of complaint accepted by the President of the ADB 30 May 2017 to 30 May 2018, Mr Mewett requested the University to allow him to withdraw from the 3 units undertaken in semester 2 of 2016 - either orally or in writing. The Tribunal understands that Mr Mewett’s case is that he should have been permitted to withdraw orally from the 3 units undertaken in semester 2 of 2016. Even if the Tribunal were to accept as a matter of fact that Mr Mewett did make such a request to be permitted to withdraw from the units of study, he has not provided either a real or hypothetical comparator student without his disabilities who was or would have been permitted to withdraw from the units taken in semester 2 of 2016 during the complaint period.

44. The University has stated that its policy in relation to all students concerning withdrawals means that no student would have been permitted to withdraw from the units enrolled in for 2016 during the complaint period 2017-2018. Such a request would have been out of time.

45. If the matter were to proceed to hearing, I think the likelihood of Mr Mewett being able to establish that he had been subjected to less favourable treatment, than a comparator student, would be remote.

Indirect discrimination

48. To succeed as a complaint of indirect discrimination under s 49B(1)(b) of the Act, Mr Mewett must establish that:

• The University imposed a requirement or condition; and

• He was unable to comply with that requirement or condition; and

• A substantially higher proportion of student/persons comply or are able to comply with that requirement or condition; and

• The requirement or condition was not reasonable having regard to the circumstances of the case.

The requirement or condition

49. In general terms the Tribunal understands that the requirement/condition at the base of Mr Mewett’s complaint is that Mr Mewett was required to withdraw from the relevant units of study in writing. Mr Mewett has provided medical reports supporting the contention that he was unable to undertake complex transactions in writing. However, the Tribunal notes that the Respondent has also provided evidence that Mr Mewett did in fact access the student portal during the complaint period and undertake transactions in writing.

50. No evidence was provided to the Tribunal that a substantially higher proportion of student/persons comply or are able to comply with that requirement or condition.

51. The Tribunal understands that Mr Mewett referred to examples of his interactions at Curtin University and UTS as demonstrating that it was not “reasonable in the circumstances” for the University of Sydney to require him to withdraw in writing.

52. For the purposes of this application, putting Mr Mewett’s case at its highest, the Tribunal will hypothetically accept that Mr Mewett’s complaint meets the requirements set out in section 49B (1)(b) to establish indirect discrimination.

53. The Tribunal notes that Mr Mewett’s complaint to the ADB commences:

“that in 2016 second semester, (or there about), I applied for special consideration to make and all multiple complaints and of nature and I applied through the appropriate departments and requests. I requested to give my complaints verbally. They were of highly complex nature involving misconduct by staff at the University of Sydney. The University refused on multiple occasions to allow me to verbally, insisting that it had to be done by documentation. I continued requesting this throughout 2016 semester and 2017 semester. “

54. It is not clear from this complaint to the ADB that Mr Mewett made any specific request to withdraw from the 3 units of study to anyone at any specific time. The complaint refers to special consideration and misconduct by staff. It does not refer to withdrawal from units of study. In the absence of this evidence this Tribunal concludes that the possibility of Mr Mewett establishing the factual underpinning of his complaint is remote.

55. The problem remains that the period of the complaint accepted by the President of the ADB was from 30 May 2017 to 30 May 2018. There is no specific evidence that Mr Mewett did request during this period either orally in writing to anyone to withdraw retrospectively from the relevant 3 units of study.

56. It follows that, cast as a complaint of indirect discrimination, the Complaint must fail.

Should the Tribunal in all the circumstances grant leave ?

57. The President declined Mr Mewett’s complaint on the basis it was lacking in substance. The Tribunal is satisfied that a Tribunal hearing the matter is likely to find that Mr Mewett has a disability. It is unlikely however that a Tribunal would find that Mr Mewett was treated less favourably by the University of Sydney under section 49 L during the complaint period because of the lack of evidence of Mr Mewett having made a request during the complaint period. The Tribunal must exercise the discretion to grant leave, having regard to the purpose of the legislative scheme established by the ADA and be guided by the consideration that the refusal of leave will finally determine Mr Mewett’s rights under that scheme. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case.

Decision

58. For the reasons set out above the Tribunal concludes that the prospects of the referred Complaint succeeding are poor, and it is fair and equitable, having regard to the interests of both parties to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.

Order

1. Leave to proceed with the complaint under section 96 of the ADA is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 September 2019