RAE and CURTIN UNIVERSITY OF TECHNOLOGY - [2018] WASAT 70

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   RAE and CURTIN UNIVERSITY OF TECHNOLOGY [2018] WASAT 70
MEMBER:   SENIOR MEMBER M SPILLANE
HEARD:   26 AND 27 FEBRUARY 2018
DELIVERED          :   27 JULY 2018
FILE NO/S:   EOA 8 of 2017
BETWEEN:   DARRYL RAE
Applicant
AND
CURTIN UNIVERSITY OF TECHNOLOGY
First Respondent
DEBORAH TERRY
Second Respondent

Catchwords:

Equal opportunity - Discrimination - Victimisation complaint - Test to be applied - Detriment suffered by complainant - Whether causative link established

Legislation:

Equal Opportunity Act 1984 (WA), s 67, s 67(1)(a), s 90(1), s 90(2), s 107(3), s 127(a)

Result:

Application unsuccessful
Complaint dismissed

Summary of Tribunal's decision:

On 19 December 2016 the Equal Opportunity Commission received a complaint from Mr Darryl Rae alleging victimisation by Curtin University of Technology.
Following an investigation, the Commission dismissed Mr Rae's complaint as lacking in substance.
Pursuant to s 90(1) of the Equal Opportunity Act 1984 (WA), Mr Rae requested the Commission refer his complaint to this Tribunal which the Commission did by letter of 19 April 2017.
The matter came on for final hearing at the Tribunal over two days on 26 and 27 February 2018 with Mr Rae appearing by video from Queensland.
The issue before the Tribunal was Mr Rae's complaint that he was victimised by Curtin University and the Vice-Chancellor, Deborah Terry because of a previous complaint of discrimination he had lodged with the Equal Opportunity Commission against the University.
The specific instances of discrimination and victimisation Mr Rae complained of, related to an incorrect mark on his final Honours dissertation, redacting of information on various documents, the omission of his photograph and biography from the University's web page, being penalised for not uploading his research data on to the University's 'R' drive and finding that he did not carry out the interviews relating to his Honours thesis.
The detriment Mr Rae complained of was that he had not been allowed to graduate which had caused him a great deal of distress and anxiety.
Following two days of hearing and consideration of the evidence put forward, the Tribunal found that there was no basis for Mr Rae's contention that he had been victimised by either the University or the Vice-Chancellor and Mr Rae's complaint was dismissed.

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	Ms H Millar
Second Respondent	:	Ms H Millar

Solicitors:

Applicant	:	N/A
First Respondent	:	Ms A Ciffolilli
Second Respondent	:	Ms A Ciffolilli

Case(s) referred to in decision(s):

Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165

REASONS FOR DECISION OF THE TRIBUNAL:

Background

On 19 December 2016 the Equal Opportunity Commission (Commission) received a complaint from Mr Darryl Rae (applicant) alleging victimisation by Curtin University of Technology (first respondent).
Following an investigation by the Commission, the acting Commissioner wrote to the applicant by letter of 21 March 2017 stating:
…
After considering all the documentation provided I have decided that your complaint of discrimination on the grounds of victimisation because of making a complaint of discrimination, and victimisation because of making a Public Interest Disclosure, is lacking in substance, and in accordance with my powers under section 89 of the Equal Opportunity Act 1984 (the Act) I am dismissing your complaint.
The reasons for dismissing your complaint are as follows:
On 13 February 2017 wrote to you advising that before I can proceed with an investigation into your allegations of victimisation by Curtin University further information was required and I put to you a number of questions.
In an email of 19 February 2017 you advised the Commission that you wished to add the Vice-Chancellor, Professor Deborah Terry, as a separate Respondent to the "complaint that is on foot". On 21 February 2017 Senior Education & Conciliation Officer Elizabeth Davies sent you an email requesting that you address the questions raised in my letter of 13 February 2017 and also provide further information regarding your allegation of victimisation against Professor Terry.
As you had not provided the necessary information regarding your allegations of victimisation against both Curtin University of Technology and Professor Terry I wrote to you again on 1 March 2017 requesting that you provide the material by 13 March 2017. In my letter I did inform you that if I did not receive all the requested information by the above date I may dismiss your complaint in accordance with section 89(1) of the Act.
To date and despite numerous requests you have failed to provide the information necessary to substantiate your complaint. Instead you have forwarded to the Commission numerous copies of emails between yourself and Curtin University of Technology regarding your appeal against your assessment and other internal complaints.
If you are dissatisfied with my decision to dismiss your complaint you have the right to request me to refer your complaint to the State Administrative Tribunal (the Tribunal) for an inquiry pursuant to Section 90 of the Act. You have 21 days from receipt of this letter within which to advise me in writing whether or not you wish to exercise your right to have your complaint heard by the Tribunal[.]
Having received written notice from the applicant pursuant to s 90(1) of the Equal Opportunity Act 1984 (WA) (the EO Act), the acting Commissioner referred the matter to this Tribunal pursuant to s 90(2) of the EO Act by letter of 19 April 2017 stating:
On 19 December 2016 I received a complaint lodged under the Equal Opportunity Act 1984 (the Act) from Mr Darryl Rae of Toombul, Queensland.
Mr Rae's complaint is brought against Curtin University of Technology and alleges discrimination on the ground of victimisation for making a complaint of discrimination and for making a Public Interest Disclosure.
On 19 February 2017 Mr Rae advised me that he wished to add Professor Deborah Terry, Vice-Chancellor, Curtin University of Technology, as an individual respondent to his complaint of victimisation.
On 21 March 2017 I dismissed the complaint as lacking in substance pursuant to section 89 of the Act.
On the 21 March 2017 the complainant gave me a written notice pursuant to section 90(2) of the Act requiring me to refer his complaint to the State Administrative Tribunal. Accordingly, the complaint together with a report of my investigation is referred for determination.
Following unsuccessful mediation at the Tribunal and a number of directions hearings, the matter was programmed through to a final hearing heard over two days on 26 and 27 February 2018 with the applicant appearing by video conference from Queensland.

Chronology of events between the applicant and the first respondent

In 2015 while the applicant was a student at the first respondent, he lodged a claim of racial discrimination against the first respondent with the Equal Opportunity Commission. That claim was settled at mediation when it was agreed that the applicant would continue his studies as on online student.
In 2016 the applicant worked on his Honours project under the supervision of Ms Carol Dowling, an Associate Lecturer in the Centre for Aboriginal Studies (CAS) at the respondent.
The applicant's proposed Honours dissertation was titled 'Straight Flush, the impact of climate change on the Torres Strait Islands and its community' for which the applicant was to interview a number of Torres Strait Islanders.
On 15 November 2016 the applicant submitted his Honours thesis which was marked by both an external and an internal examiner.
The external examiner awarded the mark of 70% while the internal examiner awarded 46% with an overall mark of 54% being awarded.
On 15 December 2016 the applicant appealed the mark he had received (assessment appeal) and stated:
(a)the average of the external and internal marker's marks was 58% but he had only been awarded 54%; and
(b)the internal marker was biased against him.
On 16 December 2016 Ms Dowling, the applicant's Honours supervisor, filed an academic misconduct complaint against the applicant alleging:
(a)the applicant never interviewed Torres Strait Islanders as part of his research and had falsified the quotes used in his Honours thesis; and
(b)upon receiving his final mark for his thesis, the applicant had harassed Ms Dowling with aggressive phone and email messages.
As outlined above, the Equal Opportunity Commission received a complaint of victimisation from the applicant on 19 December 2016 which is the complaint the subject of these proceedings.
On 7 March 2017 the applicant was informed that his assessment appeal against his mark had been placed on hold while the academic misconduct complaint relating to his thesis was investigated.
On 16 March 2017 the first respondent wrote to the applicant in respect of the academic misconduct complaint requesting that he provide documentation evidencing that the interviews had in fact taken place and that he respond to the allegations that:
(a)the applicant had fabricated quotes from interviewees in his Honours thesis; and
(b)the applicant had not complied with the data storage requirements of his research ethics approval.
On 24 March 2017 the applicant responded to those allegations, denying that he had fabricated the quotes and saying that he had never been given access to the respondents' 'R' drive to store his data.
On 29 March 2017 Ms Tara Felton, Manager of Student Discipline and Compliance found that the applicant had engaged in academic misconduct and referred to the matter to the Student Discipline Panel.
On 4 April 2017 the Student Discipline Panel convened and determined that the appropriate penalty for the applicant's misconduct was that he received the mark 'Annulled' for his Honours thesis.
On 24 April 2017 the applicant appealed both the finding of misconduct and the penalty. He also provided documentation which he said proved he had conducted the interviews in question which included a number of statutory declarations.
On 22 May 2017 an appeal hearing was conducted by Professor Andris Stelbovics, Pro-Vice Chancellor of the Faculty of Science and Engineering together with Associate Professor Simon Forrest, Elder in Residence at the first respondent and Nicc Ryan, Director of Student Engagement. The applicant attended by teleconference.
Following that hearing, the applicant was given additional time to locate and provide research artefacts he said he had in his possession. On 18 June 2017 the applicant provided additional documentation including what he claimed to be transcriptions of some of his handwritten interview field notes.
On 5 July 2017 Professor Stelbovics wrote to the applicant informing him that after reviewing the material he had upheld both the finding of misconduct and the original penalty.

Clarification of issue for determination

On 26 February 2018 the first day of hearing of this matter, the Tribunal had not received any submissions or evidence from the applicant in compliance with the Tribunal's programming orders.
As the Tribunal was tasked with holding an inquiry into the applicant's complaint pursuant to s 107(3) of the EO Act, the Tribunal sought to clarify with the applicant on the first morning of the hearing the precise complaint he was making and the evidence he wished to rely on to establish that complaint.

Issue for determination

To confirm the details of the actual complaint the Tribunal had a lengthy exchange with the applicant following which it was put to the applicant whether the complaint had been accurately described in the second sentence of the second paragraph of a letter to the applicant from the Equal Opportunity Commission dated 13 February 2017 (see ts 11, 26 February 2018) which stated:
It appears that you are making allegations that you were victimised in the latter part of 2016 by certain staff from Curtin University's Centre for Aboriginal Studies because of your previous complaint of discrimination lodged against Curtin University[.]
The applicant replied:
Yes. And also in addition to the other actions that happened since that date.
That therefore is the complaint the subject of the inquiry to be dealt with by the Tribunal in this case.

Evidence

As outlined above, on the first day of hearing the Tribunal had received no evidence or submissions from the applicant on which he wished to rely.
On the other hand the respondents had filed with the Tribunal and given to the applicant statements of evidence from four witnesses they intended to call together with a Hearing Bundle of some 446 pages which contained copies of the documents the respondents believed may be relevant.
In the circumstances, in an effort to identify the evidence the applicant wished to rely on to establish his complaint, the Tribunal spent over two hours on the first morning of the hearing going through the respondents Hearing Bundle with the applicant and allowing the applicant to identify and tender any documents he wished to rely on; see ts 12-62, 26 February 2018.
For the purposes of clarity, the Tribunal attaches as 'Annexure A' to these reasons the Exhibit List from the hearing which identifies Exhibits 1 to 21 as being documents or bundles of documents tendered by the applicant during those two hours.
It should be noted however, that during the course of identifying those documents with the applicant, it became apparent that the applicant had in fact attempted on or around 28 August 2017 to file documents with the Tribunal in compliance with the Tribunal's programming orders, namely a document headed 'Statement of Claim' together with 12 attachments identified in a schedule attached to that document.
Although the respondent had received those documents from the applicant on or about 28 August 2017, the Tribunal unfortunately had not, due to an error in the email address used by the applicant.
A copy of those documents was then supplied to the Tribunal during the hearing and they were taken in and marked as Exhibit 19.

Legal principles

The applicant's complaint of victimisation comes within s 67(1)(a) of the the EO Act which states:
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised
(a)has made, or proposes to make, a complaint under this Act[.]
As the applicant was not legally represented, the Tribunal sought to explain at the outset of the hearing the test to be applied in matters such as these; see ts 4-5, 26 February 2018.
In explaining the test, the Tribunal referenced the case of Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) where at [67], Pritchard DCJ (as her Honour then was) had outlined what must be established to demonstrate victimisation under s 67 of the EO Act, which is that:
1.the person victimised suffered, or was threatened with, a detriment;
2.the detriment alleged must be a disadvantage that is substantial and not trivial;
3.the victimiser subjected the person victimised with the detriment, or threatened to do so;
4.a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
•the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.

Applicant's contentions

Both in the applicant's document headed 'Statement of Claim' dated 28 August 2017 (Exhibit 19) and in his oral submissions before the Tribunal, there were a number of issues which the applicant contended demonstrated that he had been victimised by the respondents. Those issues were:

Incorrect mark

The applicant's final two subjects, INDS 4004 and INDS 4005 were completed in the second semester of 2016. The final score for INDS 4005 as referred to earlier being 54%.
The applicant contended that there was a mathematical error in the calculation of that overall percentage of 54% and that the correct percentage should have been 58%.
The applicant had emailed Ms Dowling on 15 December 2016 with a request to correct the error and contended that that issue had also been reported to other members of staff including Associate Professor Yorke and ViceChancellor Terry. The applicant stated that no action had been taken to rectify the error and this was an attempt by the respondent to discriminate against the applicant.
An official request for a review of the applicant's marks was lodged by the applicant with Associate Professor Yorke on 16 December 2016.

Redacting information

The applicant submitted that Rule 3.13 of the University's Complaints Procedure stated:
A complaint will be actioned in the form in which it is received. It cannot have any personal information modified or removed to protect the identity of the complainant.
The applicant contended that despite that rule, the University had heavily redacted a large number of documents including the complaint from Ms Dowling dated 16 December 2016 which he contented was also a form of discrimination against him.

Photograph missing

The applicant contended that he had further been discriminated against because his photograph and profile had been omitted from CAS's website when all other 'research students' in his cohort had been included.
The applicant stated that this had been brought to the attention of the University on a number of occasions, however there was no evidence of the University undertaking any appropriate action.

The 'R' drive

The applicant confirmed that he had not stored his research data on the University's 'R' drive, however he submitted that he had never been given access to the University's 'R' drive.
During the hearing the applicant tendered what he said was a copy of an excerpt from a Facebook conversation with another Honours student (Exhibit 17). The applicant contended that showed other students had also not uploaded their research data to the 'R' drive. The applicant further submitted that Ms Dowling had stated that she would upload the information onto the University's 'R' drive.
The applicant submitted that the University's actions in penalising him for not uploading information onto the 'R' drive should therefore be seen as discriminatory.

Not carrying out the interviews relating to his Honours thesis

In respect of this issue, the applicant believed that the statutory declarations he had furnished to the respondent proved that he had carried out the interviews.

Detriment

In relation to the issue of what detriment the applicant had suffered as a result of the respondents actions, the applicant submitted that the respondents' actions in respect of all of the issues outlined above had not allowed him to graduate which had caused him, amongst other things, a great deal of distress and anxiety which was the detriment he complained of.

Consideration by the Tribunal

As outlined by her Honour in Laurent, there are four elements of the test which must be established by the applicant to succeed in establishing victimisation. The applicant must show:
1.that he suffered or was threatened with a detriment;
2.the detriment alleged must be a disadvantage that is substantial and not trivial;
3.the respondents must have subjected the applicant to the detriment or threatened to do so; and
4.a dominant or substantial reason for the respondents conduct must have been that the applicant had made or proposed to make a complaint under the EO Act or had brought or proposed to bring proceedings against the respondents under the EO Act.

In closing, counsel for the respondents acknowledged (correctly in the Tribunal's opinion) that in the present case everything is dependent upon the applicant proving the fourth element of the test just outlined.
The reason for the respondent taking that position was that in the respondents' view, the first three elements were, in the circumstances of the present case, selfevident in that:
1.there was no argument but that the applicant had suffered a detriment namely not graduating;
2.that detriment namely not being awarded his Honours degree could be seen as substantial; and
3.it was acknowledged that it was the first respondent, being the University, who subjected the applicant to that detriment.
That leaves only the fourth element outlined above to be established.
In Laurent her Honour explained at [67] that to prove that fourth element of the test it must be established that:
•the complaint or intended complaint must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered.
and in the absence of facts capable of proving intention to cause the detriment or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.
The respondents submitted that in respect of that fourth element of the test the applicants' case fails entirely. They contended that there was never any contemplation or consideration by the respondents of any equal opportunity complaint or proceedings by the applicant whether previously taken or proposed, when the first respondent or its employees had dealt with the applicant's matters.
Counsel for the respondent submitted that not only was it not a dominant or substantial reason for the respondents' conduct, it was not a reason at all.
In applying the fourth element of the test, the Tribunal will first examine the specific issues raised by the applicant outlined earlier, namely:
1.incorrect mark;
2.redacting information;
3.photograph missing;
4.the 'R' drive; and
5.not carrying out the interviews relating to his Honours thesis.
In arguing his case before the Tribunal the applicant, in addition to the Exhibits tendered, the contentions in his statement of claim of 28 August 2017 and his own oral evidence, had cross-examined all four of the respondents' witnesses in respect of each of those issues in what could only be described as a robust manner.
It should be noted that in his cross-examination of the respondents' witnesses, the Tribunal allowed the applicant some degree of latitude. In doing so, the Tribunal particularly had in mind the comments of her Honour in Laurent when she stated at [20]:
… In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged[.]
Dealing then in turn with each of the issues raised by the applicant.

Incorrect mark

As outlined earlier, the applicant contended that the lack of action by the respondent to rectify the error in the applicant's mark was an attempt by the respondent to discriminate against the applicant.
However in cross-examination, Ms Dowling the person responsible for making that calculation clearly admitted that there had in fact been an error in the calculation of the applicant's mark and that the same error had also appeared in the marks of a number of other students in the applicant's cohort; ts 103-104, 26 February 2018.
Mr Jonathan Yorke, the Academic Registrar of the first respondent and the person ultimately responsible for making a decision in respect of a review of a student's marks, explained in some detail at paragraphs 24 and 28 to 30 of his statement of evidence the position with respect to that error and the attempts made by the first respondent to rectify it.
Furthermore, in answer to questions in crossexamination, Mr Yorke dealt with the miscalculation and confirmed that once the miscalculation by Ms Dowling had been identified, other students' marks had been rectified. However, in respect of the error in the applicant's mark, Mr Yorke was waiting to make any necessary correction until after the academic misconduct complaint, which was the more serious issue, had been finalised. He went on to explain that as it turned out when that was finalised and the applicant's mark annulled, there was then no further utility in dealing with the correction of the applicant's mark.
Although the applicant stated on a number of occasions that Ms Dowling had a complete lack of integrity, the Tribunal did not find that to be the case and was satisfied with the reasons given by both Ms Dowling and Mr Yorke in respect of the incorrect calculation of the marks.
The Tribunal is not therefore satisfied that there was any discrimination against the applicant in respect of that matter nor was there any basis for inferring such discrimination in the circumstances.

Redacting information

In respect of this issue, the applicant argued that a number of documents that had been supplied had information redacted. Particularly he had been concerned that the name of the internal examiner was redacted and he questioned Ms Dowling, Ms Felton and Mr Yorke in some detail in respect of that issue.
In cross-examination, Ms Felton in particular dealt with the reasons for redacting certain information and the respondents' authority to do so, much of which arose out of matters of privacy. Detailed explanations of this can be found at pages 136-139 of the transcript.
When Mr Yorke was cross-examined about the matter, he immediately identified and named the internal examiner whose name had been redacted and explained that he did not see the redaction of that persons name or of other items such as other students' scores as problematic, being that it was those students' private information.
Again, in respect of this issue the Tribunal was entirely satisfied with the explanations given by the respondents' witnesses and was not satisfied in any way that the redaction of the information was done to discriminate against or victimise the applicant but rather for legitimate purposes such as privacy.

Photograph missing

In respect of this issue, Ms Dowling in cross-examination acknowledged that the applicant's details had not been included with the photographs and short bios of the applicant's cohort of students which the applicant contended was done to victimise and discriminate against him.
However, in re-examination of Ms Dowling by counsel for the respondent, Ms Dowling gave a perfectly reasonable explanation as to how that had transpired and stated:
We have a what they know as a FLET Team that's situated within The Centre For Aboriginal Studies and that team does things for the website and I was approached by the one of the FLET Team who said, "Why don't we put a photograph of the honour students up," and I said, "Great, because they're here on block. Let's photograph them while we've got them." She took the camera out, took photos of them. Now, this was not done for the previous year and it's not been done for the subsequent years. It was literally a one-off and I we grabbed the students while they were there because we have students that come from all over Australia. They come for two week blocks. We photographed them because they were there.
And where was Mr Rae? - - - Rae was an external student at this point.
…
So that was that was literally it. It was, you know, a pure oversight.
(ts 119, 26 February 2018)
The Tribunal accepts Ms Dowling's explanation and although unfortunate, it is a rational and reasonable explanation in the circumstances and the Tribunal is not satisfied that the oversight was either conscious or malicious or done to discriminate against or victimise the applicant.

The 'R' drive

As outlined earlier, the applicant contended that other students had also not uploaded their research data to the 'R' drive, that he himself had not been given access to it and in any event Ms Dowling had said she would upload the information.
The applicant submitted that the respondents' actions in penalising him for failing to upload his research data onto the 'R' drive (being one of the reasons for the finding of academic misconduct) should therefore be seen as discriminatory when, in his view, other students hadn't uploaded their information onto the 'R' drive either.
In support of that contention, the applicant referred on a number occasions to a one page print-out of what was described as a Facebook conversation (Exhibit 17) between the applicant and another individual he described as a former Curtin Honours student ,which appeared on the face of it, to support some of the applicant's contentions.
However, the difficulty for the Tribunal in respect of this issue, is that apart from the applicant, only Ms Dowling gave direct evidence in respect of the contentions relating to her and categorically denied, what was alleged by the applicant, was in fact the case.
Furthermore, all of the respondents' witnesses gave clear evidence that it was each students' individual responsibility to upload the information to the 'R' drive as had been stipulated and agreed in each student's research ethics application and approval.
Unfortunately, Mr Vale who the applicant identified as the other party in the Facebook conversation, was not called to give evidence, nor was a statement of evidence obtained from him and he was not available for crossexamination by the respondent. In the circumstances, the Tribunal is only prepared to afford limited weight to what is purported to be a copy of a Facebook conversation without having the matter properly corroborated or the respondents given an opportunity to properly test it.
Apart from his own evidence and the copy of the Facebook conversation referred to, the applicant led no other evidence to support his claims in respect of the 'R' drive.
Further, even if the contents of the Facebook conversation (Exhibit 17) were proved to be correct, that would only go to whether the finding of academic misconduct against the applicant should or should not have been upheld rather than the question before this Tribunal, being whether a dominant or substantial reason for the respondents' actions was the complaint the applicant had previously made about the respondent to the Equal Opportunity Commission.
That particular piece of evidence if corroborated would not, in the Tribunal's view, on its own, prove the matters the applicant must establish to demonstrate victimisation in respect of this matter.

Not carrying out the interviews relating to his Honours thesis

In respect of this issue, the applicant contended that the respondent was discriminatory and victimised the applicant because the statutory declarations he had furnished to the respondent, in his view, proved that he had carried out the relevant interviews.
However, as with the previous issue, even if the applicant established that the respondent should have accepted that he had carried out the relevant interviews that fact would only go to whether his appeal against the finding of academic misconduct should or should not have been successful.
The Tribunal can find no evidence on what is before it, that even if the respondents' decision was incorrect in respect of the interviews, about which the Tribunal makes no finding, that such decision can be shown to have been discriminatory or infers discriminatory conduct or victimisation of the applicant by the respondent.
Furthermore, Professor Stelbovics, the person who had heard the applicant's appeal against the finding of academic misconduct gave clear and cogent evidence as to why he made the findings he did. Whether those findings were right or wrong, the Tribunal is not satisfied that a dominant or substantial reason or indeed any reason at all for Professor Stelbovics' conduct showed or inferred an intention to discriminate against or victimise the applicant.

Conclusion

Keeping in mind each of the findings just made together with all of the other evidence tendered, although the applicant contended that the previous complaint of discrimination he had made against the first respondent was the dominant or substantial reason for what he contended were acts of victimisation by the respondents and, although those contentions were put directly and forcefully to each of the respondents witnesses in cross-examination, each witness directly and clearly denied those assertions.
The Tribunal accepts the respondents' witnesses' evidence in that regard and can find no evidence put forward by the applicant on which it can rely to make the finding sought by the applicant.
As stated by her Honour in Laurent, in the absence of facts capable of proving an intention to cause a detriment or facts capable of supporting such an inference, there will be no basis for a contention of victimisation. The lack of facts to support the applicant's contentions in the present matter is therefore a fundamental flaw in the applicant's case.
Throughout the two days of hearing the applicant continually contended that matters were proved when in fact they had not been proved or that particular witnesses for the respondent lacked credibility when the Tribunal did not make such a finding.
Further, as stated earlier, the Tribunal allowed the applicant particular latitude in his crossexamination of the respondent's witnesses recognising the comments of her Honour in Laurent, that in cases of this type 'it is not uncommonly the case that the evidence led by a respondent and cross-examination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged'.
However, even with the latitude allowed to the applicant and no lack of effort on his part, that was not the case in the present matter.
The Tribunal found the respondents' witnesses to be clear, cogent and honest and is not satisfied based on the evidence before it for the reasons set out above, to make any findings of discrimination or victimisation under s 67 of the EO Act.
The Tribunal therefore finds that there is no basis for a contention of victimisation by the applicant and pursuant to s 127(a) of the EO Act, the applicant's complaint will be dismissed.

Additional matters

Before concluding, there were three issues, two raised by the applicant and one by the respondent which the Tribunal should address.

Bias

The first is the issue of bias by the Tribunal itself. On several occasions throughout the hearing the applicant accused the Tribunal of bias, as a result of which the Tribunal requested the applicant to address those contentions in his closing submissions.
Just prior to concluding his case, the applicant stated:
Finally, I would like to address the matter of bias. So, yes, it is true that I did make a number of allegations of bias throughout the hearing. I had I believed that I had not been given the opportunity to express myself, nor was I being listened to. I am not a legal professional. I am a former Australian Federal Police Officer and a Naval Police Officer of many years. I was in the navy for 21 years; four years of the Australian Federal Police and now people know where I work.
I believe that I have conducted myself as best as I can here. And if I have alluded to any bias I do withdraw that, but as I said I believe that I was not being heard properly at that time[.]
(ts 267, 27 February 2018)
In light of the applicant's withdrawal of that allegation, the Tribunal will only comment to say that throughout the two days of hearing the Tribunal endeavoured to give the parties, and in particular the applicant who was self-represented, every procedural fairness and in particular allowed the applicant a latitude in cross-examination of the respondents' witnesses that would not normally be forthcoming.

Metadata

During the course of the hearing, particularly during the evidence of Professor Stelbovics, a reference was made to the metadata of a document and the applicant contended that by accessing such metadata the respondent may have committed an offence.
The Tribunal is entirely satisfied that the metadata referred to by Professor Stelbovics was nothing more than the normal properties of any Word document such as the date of creation and/or editing and was not some other form of data, the collection of which may or may not be restricted under other legislation.

Second respondent

As explained by the Commission in its decision dismissing the applicant's application as lacking in substance, the second respondent had only been added to the matter during the course of the complaint before the Commission and in the Tribunal the second respondent, although represented, had not appeared or given any evidence.
Apart from a number of comments by the applicant, no evidence whatsoever was put before the Tribunal connecting the second respondent personally in any way to the issues before the Tribunal and as a result, at the conclusion of the matter, counsel for the second respondent invited the Tribunal to strike out the application against the second respondent.
However, as for the reasons just outlined, the complaint against both the first and second respondents will be dismissed, there is, in the Tribunal's view, no utility in considering that issue further.

Orders

1.Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA), the complaint of the applicant is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M SPILLANE, SENIOR MEMBER
27 JULY 2018

Annexure A

STATE ADMINISTRATIVE TRIBUNAL
EXHIBIT LIST

MATTER HEARD IN: HR Hearing	HEARING DATE: 26 February 2018
FILE NO: EOA/8/2017	LOCATION: Perth

NUMBER	TYPE	DESCRIPTION	TENDERER
1	Exhibit	Email from Darryl Rae to John York (Pages 15-24 of the Hearing bundle)	Darryl Rae
2	Exhibit	Email from Carol Dowling to Tara Felton (Pages 45 - 46 of the Hearing Bundle)	Darryl Rae
3	Exhibit	Declaration by Darryl Rae (Page 144 of the Hearing bundle)	Darryl Rae
4	Exhibit	Honors Disertation Exam Cover Sheet (Darryl Rae) (Page 191 of the Hearing bundle)	Darryl Rae
5	Exhibit	Honors Disertation Exam Cover Sheet (Sharpen Cox) (Page 200 of the Hearing bundle)	Darryl Rae
6	Exhibit	Email from Darryl Rae to John York (Policy) (Page 203 of the Hearing bundle)	Darryl Rae
7	Exhibit	Email from John York to Darryl Rae (Page 204 of the Hearing bundle)	Darryl Rae
8	Exhibit	Email from Darryl Rae to Deborah Terry and others (Pages 205 - 209 of the Hearing bundle)	Darryl Rae
9	Exhibit	Academic Record, dated 14 December 2016 (Page 210 of the Hearing bundle)	Darryl Rae
10	Exhibit	Email from John York to Darryl Rae, dated 20 March 2017 (Page 211 of the Hearing bundle)	Darryl Rae
11	Exhibit	Email from Darryl Rae to John York (Page 212 of the Hearing bundle)	Darryl Rae
12	Exhibit	Email from John York to Carol Dowling, dated 23 March 2016 (Page 213 of the Hearing bundle)	Darryl Rae
13	Exhibit	Email from Carol Dowling to John York, dated 23 March 2016 (Page 214 of the Hearing bundle)	Darryl Rae
14	Exhibit	Various Documents (Pages 215 - 242 of the Hearing bundle)	Darryl Rae
15	Exhibit	Academic Record, dated 14 December 2016 with hand written notes (Page 252 (a) of the Hearing bundle page added at hearing)	Darryl Rae
16	Exhibit	Academic Record, dated 3 February 2017 (Page 253 of the Hearing bundle)	Darryl Rae
17	Exhibit	Copy of Facebook Conversation with a former Curtin student (Page 261 of the Hearing bundle)	Darryl Rae
18	Exhibit	Photos of University Honour Students (Pages 13 - 14 of the Hearing bundle)	Darryl Rae
19	Exhibit	Bundle of documents dated 28 August 2017 including applicant's statement of claim together with 12 attachments (Received at the Tribunal by email on 26 February 2018 from respondent's counsel)	Darryl Rae
20	Exhibit	Email Darryl Rae to Mick Ryan, dated 18 June 2017 with attached documents (Pages 262 - 308 of the Hearing book)	Darryl Rae
21	Exhibit	Document headed Official File Notes (Pages 309 - 310 of the Hearing bundle)	Darryl Rae
22	Exhibit	Curtin University Complaints Procedure (Received at the Tribunal by email on 27 February 2018 from the applicant)	Darryl Rae
23	Exhibit	Research Data and Primary Materials Policy (Received at the Tribunal by email on 27 February 2018 from the applicant)	Darryl Rae
24	Exhibit	Witness Statement by Carol Dowling together with pages of the Hearing bundle referred to in the witness statement	Heather Millar
25	Exhibit	Witness Statement - Tara Felton together with pages of the Hearing bundle referred to in the witness statement	Heather Millar
26	Exhibit	Password Reset received by the Tribunal on 27 February 2018	Darryl Rae
27	Exhibit	Witness Statement by John York together with pages of the Hearing bundle referred to in the witness statement	Heather Millar
28	Exhibit	Witness Statement by Andris Stelbovic together with pages of the Hearing bundle referred to in the witness statement	Heather Millar

I CERTIFY that the above mentioned exhibits were put in evidence or marked for identification in the above proceedings.

Associate to Senior Member Maurice Spillane

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Citations

RAE and CURTIN UNIVERSITY OF TECHNOLOGY [2018] WASAT 70

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Cases Cited

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Statutory Material Cited

1

Laurent v Commissioner of Police [2009] WASAT 254