Mewett v The University of Sydney

[2017] NSWCATAD 325

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mewett v The University of Sydney [2017] NSWCATAD 325
Hearing dates:	13 June 2017 and final submissions – 8 September 2017
Date of orders:	09 November 2017
Decision date:	09 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Leave is granted for Mr Hargreave to represent Mr Mewett. 2. Leave is refused for Mr Mewett’s complaints of age and disability discrimination to proceed.
Catchwords:	HUMAN RIGHTS – where complaint of age and disability discrimination in education declined by President of Anti-Discrimination Board as lacking in substance – where the Tribunal needs to grant leave before complaint can proceed – whether fair and just for complaint to proceed – whether it is apparent that complaint lacks substance -
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Category:	Procedural and other rulings
Parties:	Scott Mewett (Applicant) The University of Sydney (Respondent)
Representation:	S Hargreave (Agent for Applicant) Solicitors: Office of General Counsel, The University of Sydney (Respondent)
File Number(s):	2017/00135618
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. Mr Mewett is in his late fifties and has an acquired brain injury, depression and anxiety. He was enrolled in a Bachelor of Architecture degree at the University of Sydney. He complained to the President of the Anti-Discrimination Board that the University had discriminated against him on the ground of age and disability by:

1. dismissing an allegation of bullying by a friend of another student in a tutorial;

2. refusing to provide him with affordable self-contained accommodation close to the University; and

3. failing to grant an extension of time to complete a written assignment during the summer break in 2016 – 2017.

2. The period of the compliant is 21 March 2016 to 5 September 2016.

3. The President of the Anti-Discrimination Board declined the complaints as lacking in substance. Mr Mewett has asked the Tribunal for permission for the complaints to go ahead. In my view it is not fair or just for the complaints to go ahead because, using legal terminology, they are misconceived and lacking in substance. Even if the Tribunal were to find that everything Mr Mewett says happened, did happen, the University’s conduct would not be in breach of the Anti-Discrimination Act 1977 (NSW). I will explain why this is the case after setting out the legal principles for determining whether to give permission for a complaint to go ahead and the legislative framework.

Legal principles

4. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to go ahead in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

(4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

Legislative framework

5. The University is an educational authority and Mr Mewett is a student: Anti-Discrimination Act, s 4. Mr Mewett has a brain injury and suffers from anxiety and depression. If this matter were to go to a hearing, it is likely that the Tribunal would find that these conditions are disabilities as defined in s 4 and s 49A of the Anti-Discrimination Act. Under s 49L, it is unlawful for the University to discriminate against Mr Mewett by subjecting him to any detriment on the ground of disability. If the matter goes to a hearing, to establish age or disability discrimination, Mr Mewett would have to prove that the University has treated him less favourably than they treated or would have treated, a student who did not have a disability, or who was younger, and that that treatment was on the ground of his disability or age.

6. Mr Mewett relies on “indirect” disability and age discrimination as defined in s 49B(1)(b). I have also considered the merits of a complaint relying on “direct” disability and age discrimination as defined in s 49B(1)(a). The University does not rely on either of the exceptions in s 49L(4) or (5).

Summary of allegations and assessment of merit

Dismissing an allegation of bullying

7. On 21 March 2016 Mr Mewett was attending a tutorial which he describes as a University Group Tutorial Working Project. There were no staff of the University present at that gathering. He says that a visitor who was a friend of some of the members of the group, made repetitive intrusive sounds designed to silence him and limit his participation. When he complained to the University about that behaviour, he says his allegations were dismissed.

8. According to the University, the visitor was coughing because he had a cold and the behaviour was not intended to silence Mr Mewett. The issue is not whether the visitor discriminated against Mr Mewett. The issue is whether, by dismissing his complaint, the University discriminated against Mr Mewett on the ground of his disability or age.

9. Whether or not this allegation is framed as “direct” or “indirect” disability or age discrimination it is misconceived or lacking in substance because:

1. the University made a finding that the behaviour of the visitor was not intended to silence Mr Mewett and dismissed the complaint. If Mr Mewett could prove that the decision amounts to ‘subjecting him to a detriment’ under s 49L(2)(c), he would also have to prove that the decison was on the ground of his age or disability;

2. Mr Mewett has not identified how the elements of indirect discrimination as defined in s 49B(1)(b), apply to the decision to dismiss his complaint. In particular, Mr Mewett has not identified a requirement or condition that the University applied to all students but with which he could not comply and which was unreasonable;

3. Mr Mewett has not identified how the elements of direct discrimination as defined in s 49B(1)(a) apply to the decision to dismiss his complaint. In particular, Mr Mewett has not provided any evidence or any reason for drawing an inference, that one of the reasons the University dismissed his allegation of bullying was his age or disability.

Refusing to provide self-contained accommodation

10. Mr Mewett says that, because of his age and disabilities, he requires affordable, self-contained accommodation close to the University. He says that he applied to be put on the priority waiting list for Selle House, the only affordable, self-contained student accommodation close to the University that was available. Mr Mewett says that the University’s preference for housing students with a disability in dormitory style accommodation, that is monitored 24 hours a day, ignores his individual needs. What was required was a “pragmatic solution that kept faith with the University’s commitment to people with a disability as described in their Disability Action Plan”.

11. The University acknowledges that Mr Mewett’s applied for accommodation in Selle House in semester 2 of 2016 and in semester 1 of 2017. His 2016 application was refused because there were no vacant rooms available. His 2017 application was refused because all the rooms had been offered to, and accepted by, other students. The University’s policy is to give preference firstly to current residents and secondly to postgraduate research students. As Mr Mewett did not fit into either of these categories, he was not offered a place.

12. Whether or not this allegation is framed as “direct” or “indirect” disability or age discrimination it is misconceived or lacking in substance because:

1. there is no requirement in the Anti-Discrimination Act for the University to comply with their Disability Action Plan;

2. in relation to the 2016 application, it cannot be said that the University subjected Mr Mewett to a detriment when there were no vacant rooms available at that time;

3. in relation to the 2017 application, it is likely that a Tribunal hearing this application would find, in relation to indirect discrimination, that a requirement that first preference be given to current residents and postgraduate students:

1. does not have a disproportionate impact on people with Mr Mewett’s age or disability; and

2. is reasonable in all the circumstances.

4. in regard to the 2017 application, because the cost of accommodation is the same for all students, it is likely that a Tribunal hearing this application would find, in relation to direct discrimination, that a student without Mr Mewett’s disability or who was younger than him would have been treated in exactly the same way and that neither Mr Mewett’s age or disability was a reason for that treatment.

Failing to grant an extension of time to complete an assignment

13. Mr Mewett requested an extension to complete a written assignment during the summer break in 2016 – 2017. The assignment related to a subject he was enrolled in in semester 1 of 2016 but he says he was unable to start the assignment because of the effect on him of the bullying in 21 March 2016. Mr Mewett submits that, whether the conduct of the “visitor” on 21 March 2016 was discriminatory in itself, it had a profound effect on him. The University should have taken that effect into account when considering his requests to complete the assignment during the summer break of 2016 – 2017. While some extensions were granted, Mr Mewett complains, in particular, that the University did not permit him to discuss his concerns verbally. Instead they required him to apply in writing for an extension.

14. According to the University, there were three reasons for not providing a further extension over the 2016 – 2017 break: extensions of approximately 4 months had already been given; Mr Mewett did not make an online special consideration application in accordance with the University’s procedures; and Mr Mewett did not provide any medical evidence to support his application for an extension.

15. Whether or not this allegation is framed as “direct” or “indirect” disability or age discrimination it is misconceived or lacking in substance because:

1. it is likely that a Tribunal hearing this application would find, in relation to indirect discrimination, that a requirement that Mr Mewett apply in writing and provide medical evidence is reasonable in all the circumstances given that it has provided Mr Mewett with a lap top, arranged for Dragon Naturally Speaking software to be downloaded onto the laptop and invited Mr Mewett to meet with the Disability Services Team to assist him in completing the online application; and

2. it is likely that a Tribunal hearing this application would find, in relation to direct discrimination, that neither Mr Mewett’s age, nor his disability, was a reason for refusing the extension.

Orders

1. Leave is granted for Mr Hargreave to represent Mr Mewett.

2. Leave is refused for Mr Mewett’s complaints of age and disability discrimination to proceed.

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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: 09 November 2017