Rana v Flinders University of SA
[2005] FMCA 1473
•24 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v FLINDERS UNIVERSITY OF SA | [2005] FMCA 1473 |
| HUMAN RIGHTS – Disability discrimination – question of whether the applicant is excluded from a University course based on a mental illness – absence of evidence of disability – application dismissed. |
| Disability Discrimination Act 1992 (Cth), ss.46PO, 42, 22, 15-21, 10, 6, 5, 4 Human Rights and Equal Opportunity Commission Act 1986 (Cth) |
| Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 |
| Applicant: | RANJIT RANA |
| Respondent: | FLINDERS UNIVERSITY OF SOUTH AUSTRALIA |
| File Number: | AZ22 of 2003 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 5, 6, 7, 8 April 2004 9 July 2004 |
| Delivered at: | Adelaide |
| Delivered on: | 24 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Evans |
| Solicitors for the Respondent: | Fisher Jeffries |
ORDERS
That the application filed on 23 January 2003, including any amendments to such application, whether oral or in writing, be and the same is hereby dismissed.
That the applicant do pay the respondent’s costs of and incidental to the proceedings fixed in the sum of TWENTY-ONE THOUSAND NINE HUNDRED AND SEVEN DOLLARS AND FIFTY CENTS ($21,907.50).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ22 of 2003
| RANJIT RANA |
Applicant
And
| THE FLINDERS UNIVERSITY OF SOUTH AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.46PO of the Human Rights & Equal Opportunity Commission Act 1986 for orders arising out of a complaint to the Human Rights & Equal Opportunities Commission that was terminated by that Commission on 17 January 2003.
The application relates to Mr Rana’s exclusion from the Master’s Degree in International Business Administration (the “Master’s Degree”) and the Graduate Certificate in International Management at Flinders University of South Australia (the “Graduate Certificate”).
Before the Commission he alleged that his exclusion was the result of discrimination on the ground of disability but also on the ground of race. Before the Court he pursued only the allegation of discrimination on the ground of disability.
Legislative scheme
Section 4 of the Disability Discrimination Act (Cth) defines “disability” as follows:
"disability", in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
Section 5 defines discrimination:
(1) For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Section 6 of the same Act provides:
Indirect disability discrimination
For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Section 10 should also be noted in this summary of the relevant legislative provisions:
Act done because of disability and for other reason
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);
then, for the purposes of this Act, the act is taken to be done for that reason.
Sections 15 to 21 of the Disability Discrimination Act make unlawful, discrimination on the ground of disability in employment, engagement or appointment of agents, of contract workers, in the formation of partnerships, in the granting of qualifications to tradespeople or professionals, and the membership of Trade Unions and employment agencies.
Section 22 deals with education and provides as follows:
Education
(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's disability or a disability of any of the other person's associates:
(a) by refusing or failing to accept the person's application for admission as a student; or
(b) in the terms or conditions on which it is prepared to admit the person as a student.
(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates:
(a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or
(b) by expelling the student; or
(c) by subjecting the student to any other detriment.
(2A) It is unlawful for an education provider to discriminate against a person on the ground of the person's disability or a disability of any of the person's associates:
(a) by developing curricula or training courses having a content that will either exclude the person from participation, or subject the person to any other detriment; or
(b) by accrediting curricula or training courses having such a content.
(3) This section does not render it unlawful to discriminate against a person on the ground of the person's disability in respect of admission to an educational institution established wholly or primarily for students who have a particular disability where the person does not have that particular disability.
(4) This section does not make it unlawful for an education provider to discriminate against a person or student as described in subsection (1),
(2) or (2A) on the ground of the disability of the person or student or a disability of any associate of the person or student if avoidance of that discrimination would impose an unjustifiable hardship on the education provider concerned.
Mr Rana alleges that he was discriminated against by the Flinders University on account of his mental illness.
Finally as the matter was raised by Mr Rana during the course of the hearing, I set out s.42 of the Disability Discrimination Act which creates the offence of victimisation.
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(d) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986 ; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
Procedural history
The applicant relied on the following affidavits:
·10 March 2003,
·10 June 2003,
·19 June 2003,
·30 April 2004, and
·9 September 2004.
The applicant also relied on his Summaries of Argument dated 13 May 2003 and 26 May 2003. He gave oral evidence and was cross-examined. He called oral evidence from Dr Mangos a Senior Lecturer, now at the University of Adelaide, who coordinated the Master of Business Administration course when Mr Rana’s application was rejected in 2001. The respondents relied upon the following affidavits:
·Barbara Ferguson 30 April 2003
·Anne Edwards 30 April 2003
·Bronwyn Simminson 30 April 2003
·John Browett 30 April 2003
·Carol Tilt 30 April 2003
·Colin Brown 30 April 2003
·Lionel Orchard 30 April 2003
·Paula Williams 30 April 2003
A number of those witnesses were required for cross-examination.
Mr Rana was self-represented. The respondent was represented by Mr Evans of Counsel.
During the course of the hearing which took place over a number of days in 2004 a number of oral Reasons for Decision were delivered in relation to various interlocutory applications including an application by Mr Rana on two occasions that I disqualify myself from further hearing of the matter and including various applications relating to the production of documents upon subpoena and the adjournment of the trial. I do not propose to revisit any of those issues in this judgment.
Summary of the evidence
It is appropriate to summarise the history of Mr Rana’s dealings with the Flinders University, even though his application focused on only two applications, being the application for admittance to the Master’s Degree and then the application for admission to the Graduate Diploma. It was the latter application which was the principle focus of the application, but evidence was led by both parties in relation to both of the applications and indeed earlier applications by Mr Rana so it is appropriate to deal with them all in the evidence.
Mr Rana enrolled in the Bachelor of International Business degree at Flinders University in 1996 and was awarded a Bachelor of International Business with major studies in International Management and minor studies in Economics in the year 2000.
On 27 April 2001 he applied for admission to the Honours Bachelor of International Business. His application for admission to the Honours course was not approved on the basis of his grades during his under-graduate degree and Mr Rana was advised of the rejection of his application for admission to the Honour’s course by way of letter dated 8 May 2001.
Mr Rana then applied for admission to the Master’s Degree. By way of letter dated 25 May 2001 his application was rejected by the University on the basis that he did not have the required work experience or equivalent experience.
Mr Rana provided further information to Dr Carol Tilt in relation to that application for admission to the Master’s Degree, but the University by way of letter dated 27 June 2001 confirmed its refusal of admission to that course.
That decision was the subject of an application to the State Ombudsman.
On 29 November 2001 the Ombudsman declined to inquire further into the application for reasons which were provided to Mr Rana and, in part, to the University at that time. The letter of 29 November 2001 in fact confirmed an earlier letter forwarded by the Ombudsman dated 5 July 2001 that there was not anything within the material provided by Mr Rana which warranted him conducting any further investigation.
The 2002 Flinders University Course information book sets forth the admission requirements for the Master’s Degree. All that is set out therein is consistent with the evidence Dr Mangos gave as to the need for two years continuous work experience.
He confirmed that Mr Rana was rejected because he did not have continuous two year relevant work experience. Mr Rana suggested to him that Dr Mangos ought, at the time of rejecting him for admission to the Master’s degree, have proposed his admission to the Graduate Certificate course which Mr Rana subsequently applied for entry to. Dr Mangos made it clear that he only dealt with the applications that persons had made. Entry to the Graduate Certificate course was not, to use his expression, a “fall back position” for persons who were unsuccessful in applying for entry to the Master’s Degree.
Dr Carol Tilt confirmed that when Mr Rana put further information before her as the Post Graduate Director of Studies for the School of Commerce, the application for admission to the Masters was refused for the same reason, that is lack of relevant work experience.
Other than the application to the Ombudsman aforesaid, nothing further was done by Mr Rana about the 2001 refusal of entry to the Master’s Degree until the following year,
By way of letter dated and delivered on 3 July 2002, Mr Rana applied to the Vice-Chancellor of the Flinders University for admittance to the Master’s Degree. His letter contained a number of annexures. The letter was written whilst he was undertaking an advanced Masters of Business Administration at Adelaide University. His letter which appears as annexure ‘ARE9’ to the affidavit of Ms Edwards, contains this paragraph:
“The other thing is that I have a proven psychiatric disability and in the past your University provided me with reasonable accommodation. However in Adelaide University the Graduate School of Management refused me exemption from group activities. This they have deviated from Adelaide University’s own existing policy guidelines on disability (sic). I tried unsuccessfully to meet the inherent criteria in most of the subjects and passed reasonably. I could have done better if I was not given too many Chinese and Koreans students with poor English. It took much of my time breaking the communication and cultural barrier. However the problem was that they needed in a rigid fashion consensus and this took more time. More group work and negotiations really aggravated my pre-existing stress level. So I had direct confrontation with the Dean and decided to pull out from this unreasonable place.”
The Vice-Chancellor delegated the response to this request to the Executive Director of Administration of the University, Ms Barbara Fergusson. She consulted with the Faculty of the School of Social Sciences. She wrote to Mr Rana on 5 July 2002 indicating that there was nothing in the papers provided by him which indicated that he had overcome the obstacle prevented by his not having the relevant work experience which had led to the refusal of his application in the previous year.
On 10 July 2002 the Vice-Chancellor received an email from Mr Rana in which he made complaint about her letter to him. In that letter Mr Rana referred to his application for admission to the Graduate Certificate course. A letter from Mr Rana received by the Vice-Chancellor on 11 July 2002 repeated that assertion and made various complaints about Ms Fergusson’s handling of his application. Mr Rana sent a further email to the Vice Chancellor on 11 July 2002 and in that letter asked her to consider his application for admission to the Graduate Certificate course.
By letter dated 11 July 2002 the Vice-Chancellor wrote to Mr Rana advising that the University had not received an application for the Graduate Certificate from him. Certainly, the application for admission to the Master’s Degree itself makes no reference to the application for ability to participate in a Graduate Certificate course despite there being the opportunity to “tick” the appropriate box in the application form itself.
By this time Mr Rana had been communicating with various University persons by email and I will discuss these hereafter. However the letter of the Vice-Chancellor to Mr Rana of 11 July 2002 elicited an application from him seeking admission to the Graduate Certificate course. The letter was dated 14 July 2002. In mid July 2002 the Vice-Chancellor asked the Registrar of the University, Ms Bronwyn Simondson, to advise her in relation to the powers to decline to offer admission to an applicant on non-academic grounds.
This request arose because during July 2002 Mr Rana’s application for admission to the Graduate Certificate course was put before the Higher Degrees Committee of the Faculty of Social Sciences for recommendation. Dr Nicholas Mangos responded on behalf of the Committee. His letter appears as annexure ‘BAS6’ to Ms Simondson’s affidavit.
I set out the letter in full:
“27 July 2002
Dear Ms Bronwyn Simoneson
I have just received an application from Mr Rana Ranjit SNR9604975, for entry into the Graduate Certificate of International Business. I have a major concern about Mr Rana Ranjit’s application after reading the correspondence, contained in the application kit, from Adelaide University specifying his inability to be involved in group work in their MBA. This problem was also identified and confirmed by Professor McMahon McMahon (Head, School of Commerce) and Associate Professor John Browett (Dean, Faculty of Social Sciences) following conversations with them regarding that correspondence.
To be more specific after reading the letter attached to the application (enclosed) from Mr Anthony Long, Research Officer/Office Coordinator, Adelaide University Post Graduate Students’ Association addressed to Mr Tony Travaglione, Dean Graduate School of Management Adelaide University we take the view that Mr Rana Ranjit “feels that group projects are not an integral part of the MBA program” at Adelaide University. Furthermore. The Graduate School of Management University of Adelaide have granted Mr Rana Ranjit exemption from group component of one subject but have not allowed him any further exemptions from group work in other topics.
His request for continuous exemption from group work in topics taught in the MBA at Adelaide University is a major concern to us (as indicated in the abovementioned letter (sic)). This situation renders him an unsuitable candidate for an MBA degree particularly as the MBA (IB) at Flinders University does require considerable group work both in class and in assignment work.
We return this application to you on the basis of these concerns.
This letter is a communication to the University of a joint assessment of the applicant and I prefer that it be filed in an appropriate manner, not made public.
Yours sincerely
Dr Nicholas C Mangos
Director of MBA (IB).”
On 8 August 2002 Mr David Forsaith, Course Coordinator of the School of Commerce, ordered a memorandum to Dr Lionel Orchard, Chair of the Higher Degrees Committee of the Faculty of Social Sciences.
I also set that memorandum out in full.
“8 August 2002
Memorandum
To: Dr Lionel Orchard
Higher Degree Committee
Faculty of Social Sciences
From: Mr David Forsaith
Course Coordinator, School of Commerce
Faculty of Social Sciences
SUBJECT: Mr Ranjit Rana
Application for Admission – Graduate Certificate in International Business Administration
The School of Commerce has considered the application from Mr Rana for admission into the Graduate Certificate in International Business Administration.
Mr Rana meets the academic criteria for entry into the Graduate Certificate in International Business Administration. Notwithstanding this there are a number of reasons, briefly outlined below, for recommending that Mr Rana not be permitted admission into this course.
While Mr Rana was a student in the Bachelor of International Business, 1996 to 2000, he was frequently disruptive to classes and often confrontational in his approach to staff. This was not restricted to the experience of staff and students in the School of Commerce. We are aware that Mr Rana’s behaviour, at times, caused distress to students and anxiety to staff in other classes in the Faculty.
Most importantly, the School of Commerce has a duty of care to all students undertaking the Graduate Certificate in International Business Administration. We are extremely concerned for other students that their successful completion of this program, which articulates into the Graduate Diploma and the Masters Program, might be jeopardized by Mr Rana.
The program into which Mr Rana seeks admission requires considerable compulsory group work both in class and in assignment work. Bearing this in mind, the School was very concerned to see that Mr Rana has provided, as part of his application papers, a copy of correspondence relating to his present enrolment at the Adelaide University Graduate School of Management, which indicates that Mr Rana wishes to be exempted from ‘group work’ on the basis that the group element of such projects is not sufficiently beneficial to him.
The School of Commerce submits that it is not in the best interests of other students or staff of the University that Mr Rana can be admitted into this course.
Signed: D Forsaith.”
It will be noted that the Higher Degrees Committee acknowledged that Mr Rana met the academic criteria for entry into the graduate certificate course.
The Higher Degrees Committee of the Faculty of Social Sciences will determine applications only upon the basis of academic merit. It was for this reason that they decided to refer the matter to Associate Professor John Browett who was the Head of Faculty of the School of Social Sciences. He reviewed the material forwarded to him by Mr Forsaith. He had his own “direct experience” of Mr Rana which he mentioned in his letter to the Vice Chancellor of 9 August 2002. He indicated in that letter that his direct experience caused him to endorse the concerns expressed by Mr Forsaith and support their recommendation that Mr Rana not be admitted into the graduate certificate. He regarded the decision, however, was one that could only be made by the Vice-Chancellor and accordingly his letter to the Vice Chancellor of 9 August 2002 simply asks her to review the material relevant to the application and to do so as a matter of urgency.
Ms Simondson conducted various other inquiries and provided the results of those inquiries to the Vice-Chancellor. By way of letter dated 9 August 2002 the Vice-Chancellor advised Mr Rana not to permit his admission to the Graduate Certificate course. That letter appears as annexure ‘ARE22’ to Ms Edward’s affidavit. The letter if brief. It provided as follows:
“Dear Mr Rana
I refer to your application for admission to the Graduate Certificate International Business Administration. The University has considered your application and declines to offer you admission to this or any other course at the University.
Yours sincerely
Professor Anne R Edwards
Vice Chancellor.”
The letter confirmed the advice that Ms Simondson had provided the Vice-Chancellor.
Paragraph 30 of the affidavit of the Vice-Chancellor summarises the material provided to her as part of the decision making process. I set it out in full.
“30.As part of the decision making process:
30.1the University obtained legal advice that it was not obliged to offer a place to any applicant simply because they met the admission requirements and that the University could decline to offer admission on the basis of someone’s conduct or for other reasons;
30.2Ms Bronwyn Simondson reported to me in relation to meetings she held with various staff, including a report from her meeting with Associate Professor John Browett that he had expressed serious concerns about the admission of Mr Rana on behalf of the Faculty and that he anticipated substantial difficulties within the Faculty if Mr Rana was admitted.
30.3I was privy to Mr Rana’s emails to myself and in relation to Ms Barbara Fergusson
30.4I was also made aware by the Registrar, Ms Bronwyn Simondson, of various complaints regarding Mr Rana’s previous conduct at University including:
30.4.1 Complaints regarding Mr Rana’s endless talking and shouting during tutorials and upsetting students (12/7/96).
30.4.2 Problems in tutorials with Mr Kevin O’Reilly including:
(a) problems experienced by other students (30/1/98);
(b) interjections during tutorials (12/3/97);
(c) complaints (6/5/97); and
(d)a complaint that Mr Rana “constantly taunted a student during a presentation with shrugs, facial and guttural expressions … she was reduced to tears” (26/5/97).
30.4.3Mr Rana admitted that he attacked girls in Mr Kevin O’Reilly’s tutorials who were “pally pally” with Mr O’Reilly (9/3/98).
30.4.4Complaints were made to the SA Police against Mr Rana by Mr Kevin O’Reilly and fellow student Mr Deepak Bista in relation to life threatening and harassing emails and restraining orders were sought against Mr Rana by various Nepalese students and members of the Adelaide University Post Graduate Association (4/11/98,15/1/99).
30.5I was made aware by the Registrar, Ms Bronwyn Simondson, of numerous unsubstantiated complaints by Mr Rana against staff and students including complaints of breach of duty of care, misconduct, maladministration and fraud.”
Paragraph 23 of the affidavit of Ms Simondson sets out the steps she took during the process of her provision of advice to the Vice- Chancellor.
“23. In order to advise the Vice-Chancellor:
23.1I obtained legal advice, which was to the effect that the University was not obliged to offer a place to any applicant simply because they met the admission requirements and that the University could decline to offer admission on the basis of someone’s conduct or for other reasons.
23.2I reported to the Vice-Chancellor on discussions which I held with staff of the Faculty including the Head of the Faculty of Social Sciences, Associate Professor John Browett. Associate Professor John Browett expressed serious concerns to me about Mr Rana on behalf of the Faculty and anticipated substantial difficulties within the Faculty if Mr Rana was admitted.
23.3I considered Mr Rana’s emails to various University officers and staff which are annexed hereto.
23.4I also reviewed the University’s files in relation to various complaints regarding Mr Rana’s previous conduct at University including:
23.4.1Complaints regarding Mr Rana’s endless talking and shouting during tutorials and upsetting students (12/7/96) which is evident from a file note in relation to the investigation of a complaint by Mr Rana. Annexed and marked “BAS8”(pages 48 – 53) is a copy of that complaint and investigation file note.
23.4.2Problems in tutorials with Kevin O’Reilly including:
(a) problems experienced by other students (30/1/98);
(b) interjections during tutorials (12/3/97);
(c) complaints (6/5/97); and
(d) a complaint that Mr Rana constantly taunted a student during a presentation with shrugs, facial and guttural expressions.. she was reduced to tears (26/5/97).
Annexed and marked “BAS9” (pages 54 – 57) is a copy of documents which evidence the above matters.
23.4.3Mr Rana admitted in page 5 of a letter to Colin Brown that he attacked girls in Kevin O’Reilly tutorials who were “pally apply with Mr O’Reilly (9/3/98). Annexed and marked “BAS10” (pages 58 – 64) is a copy of that letter.
23.4.4Complaints were made to SA Police against Mr Rana by Kevin O’Reilly and another student Deepak Bista in relation to threatening and harassing emails and restraining orders were sought against Mr Rana by various Nepalese students and members of the Adelaide University Post Graduate Association (4/11/98, 15/1/99). Annexed and marked “BAS11” (pages 65 – 69) is a copy of letters from Mr Rana to the then Vice-Chancellor addressing these issues.
23.5I noted numerous unsubstantiated complaints by Mr Rana against staff and students including complaints of breach of duty of care, misconduct, maladministration and fraud and other matters which were contained in the University’s files. Annexed and marked “BAS12” (pages 70 – 129) is a copy of some of those documents.”
Both of those affidavits refer to Mr Rana’s email communications with various University officers and staff. In his closing submissions Mr Evans relied on four emails in particular.
The first is referred to in para 13 of Ms Fergusson’s affidavit. It was an email forwarded on 5 July 2002 by Mr Rana to a Mr Kieron Andrews. That email appears as annexure ‘BF7’ to Ms Fergusson’s affidavit. I do not propose to set out in any detail passages from this email but I summarise its principle points:
a)it referred to Ms Fergusson as “the old cow of the Flinders Opera”;
it included this passage:
b)“has she got anything to hide about our secret liaisons in the foggy bottom?”;
c)it suggested that information had been provided to Mr Rana indicating that Ms Fergusson did not want him to attend the University because of her assisting a former employee by the name of Roger David of the University in respect of a claim for compensation relating to his having broken his leg in a University car park;
d)it suggested that a member of Ms Fergusson’s family was Mongoloid;
e)it contained a summary of the documents he had provided with his application for admission to the graduate certificate course and said in relation to those documents:
“In those documents are about the biography of my Royal Family ancestry, what executive positions I had in the Royal family international business and the history of my mental illness from over 10 psycho hospitals and reports of over 45 psychiatrists. Some say I suffer from this and some say that. There is no consensus based on their DSM bible. May be after all I am not mad when they do not even know what I am suffering from? Maybe all of them are mad! Ha haa).”
The second email is referred to in para 15 of Ms Fergusson’s affidavit and was addressed to the Vice-Chancellor but received by her on or about 10 July 2002. In this letter which followed his receipt of his second application for admittance to the Master’s Degree, it will be recalled, he says that Ms Fergusson has:
“denied me natural justice, she has racially discriminated against me, she has further discriminated me on the grounds of my disability and having an association with another disabled student Mr Roger David.”
The email goes on to say:
“From now on I am going to Professor Alan Fels for misleading information being put in the Website and taking action for breaches of the Trade Practices Act, going to all the forums, TV stations, newspaper of the world, politicians of every parties, going to courts, tribunals and everything possible under the sun I will do.
Otherwise, I give you Vice Chancellor one week to use the proper framework to solve my problems through negotiations. If this is not met then I will do what is possible.”
The other emails to which Mr Evans referred were those described in para 17 of Ms Fergusson’s affidavit and are copies of his complaints to the Human Rights & Equal Opportunities Commission and to the State Ombudsman. They are set out as annexures ‘BF9’ and ‘BF10’ respectively to Ms Fergusson’s affidavit. Annexure ‘BF10’ also includes some offensive personal references to Ms Fergusson but contains this passage:
“Okay, to get back to Flinders University I took a special covert operation to surprise my favourite Lecturer Dr Nicholas Mangos. I went to join Adelaide University and having a time base. I used my disability politics to gain a qualification in order to get back to Flinders. Dr Nicholas Mangos was very surprised how I got to his beloved Alma Mater. That is my secret. I am sorry to have been pain in the arse to the really wonderful people at Adelaide Graduate School of Management.”
The reference to “disability politics” relating to his participation in the course at Adelaide University related to the reasons why he had raised with them his concerns in relation to group work. Mr Rana made it quite clear in his evidence to me that the question of his inability to participate in group work at Adelaide University had been agitated by him at that University not on account of any concerns he had at doing group work but to provide him with a vehicle for making applications under the Disability Discrimination Act involving the University. He was quite candid in answer to my questions that his refusal to do group work was something that was simply raised to enable him to “take the University on” in the sense of make it the subject of litigation in which allegations of his being discriminated against on account of his alleged mental illness disabilities would be agitated.
The Vice-Chancellor summarised her decision to exclude Mr Rana from the Graduate Certificate course in para 33 of her affidavit:
“Whilst this is the first time that I am aware that the University has taken action to exclude a student on non-academic grounds, on the basis of the emails I had seen or been sent by Mr Rana, my own investigations, the report of the meeting between the Registrar and Associate Professor John Browett in relation to the Faculty’s concerns, and being advised by the Registrar as to the results of her other investigations, and after considering my duties and responsibilities as outlined about at paragraphs 9 to 12 and on being informed by the Registrar as to my powers and responsibilities including the advice from the University’s lawyers, and on balancing the competing interests of Mr Rana and the staff and students of the University, I was satisfied that the decision not to offer admission to Mr Rana was warranted in the circumstances.”
The reference to paras 9 to 12 of her affidavit were to the following matters:
“9. I was appointed to the position of Vice-Chancellor of the University by the University Council pursuant to section 16 of The Flinders University of South Australia Act 1966 (SA) (“the Act”) on and from 2001.
10.As Vice-Chancellor I am, pursuant to the University Statute 2.3 Clause 1, the chief executive officer of the University and I exercise a general superintendence over the affairs of the University. I report to and advise the University Council.
11.its staff and students, and those who use its facilities and property, and to provide a safe, secure and suitable environment for the conduct of educational, scholarly and community activities (Statute 6.4 Clause 6). As Vice-Chancellor of the University I hold ultimate responsibility for ensuring that this obligation is complied with.
12.In addition, the University is also obliged pursuant to the Occupational, Health, Safety and Welfare Act 1986 (SA) to provide (as far as reasonably practicable) a safe working environment and safe systems of work (Section 19) and a safe workplace (Section 23).”
So, in summary, the University claims that its decision to exclude Mr Rana from the Master’s degree was on account of a lack of work experience which was a pre-requisite to admission and the decision to exclude him from the Post-Graduate Certificate was in relation to his conduct both during the course of his obtaining his ordinary degree and subsequently in relation to his method of promoting and agitating for his admission to the Master’s degree and the Post-Graduate Certificate itself.
Causation and the Disability Discrimination Act
Mr Rana claims that his exclusion from these two courses was on account of his mental illness. Before turning to consider that mental illness it is important to note what the High Court have to say about the question of causation. Mr Rana will have established unlawful discrimination pursuant to s.5 of the Disability Discrimination Act if he has established that his exclusion from these courses was because of his mental illness. The inquiry will not be into the motive or purpose of the University’s decision. It will be upon the ascertainment of the real reason or the true basis of the decision to exclude. It is not a matter of asking whether but for his mental illness Mr Rana would not have been excluded from either of the courses. As Gleeson CJ expressed the test in relation to causation in the seminal case of Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 at [13].
“The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. It is the school authority that is the alleged discriminator, and it is the reason or reasons for action of the responsible officers of the school authority that is or are in question. It is their conduct that is to be measured against the requirement of the Act. If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However ss.5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority and with the true basis of the decision of the principal to suspend and later expel the pupil.”
Or as McHugh and Kirby JJ put it at para [166] of the same judgment
“The weight and course of authority no longer accepts that the ‘but for’ test is the accepted test of causation in the context of anti-discrimination legislation. That is because the test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.”
Disability and manifestation of disability
Purvis (supra) also establishes beyond doubt for the purposes of the Disability Discrimination Act that no distinction is to be drawn between the disability and its manifestations for the purposes of establishing whether discrimination has occurred. The Full Court of the Federal Court in Purvis distinguished the disability with which s.4 of the Act was concerned from its manifestations in terms of conduct. As Gleeson CJ put it in para [11], though in the context of his discussion of the comparator:
“It may be accepted, as following from pars (f) and (g) of the definition of disability, that the term ‘disability’ includes functional disorders, such as an incapacity, or a diminished capacity to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability.”
Or as Kirby and McHugh JJ noted at par [80]:
“To construe ‘disability’ as including functional difficulties gives effect to the purposes of the Act. Such a construction accords with the Act’s beneficial and remedial nature. In this case, the damage to Mr Hoggan’s brain is a ‘hidden’ impairment – it is not externally apparent unless and until it results in a disability. It is his inability to control his behaviour rather than the underlying disorder that inhibits his ability to function in the same way as a non-disabled person I areas covered by the Act, and gives rise to the potential for adverse treatment. To interpret the definition of ‘disability’ is referring only to the underlying disorder undermines the utility of the discrimination prohibition in the case of hidden impairment.”
This is a vitally important matter to bear in mind when determining Mr Rana’s application. If I were satisfied that Mr Rana were discriminated against on account of his behaviour which behaviour was a manifestation or expression of his mental illness then that would amount to discrimination for the purposes of ss.4 and 5 of the Act.
It will be noted, however, that in Purvis extensive evidence had been made available to the Tribunal from neurologists and psychologists as to the nature of the organic provenance of the child’s disability in that case and the way in which it manifested itself in his offensive aggressive and at times violent behaviour.
Bearing these matters in mind I turn now to a consideration of the evidence presented in relation to the question of Mr Rana’s disability.
Evidence as to disability
It should be noted that Mr Rana did not call any medical practitioner whether with psychiatric qualifications or otherwise. Mr Rana did not file any affidavit of a medical practitioner. The absence of medical evidence when the case turned upon his allegation of discrimination on account of his mental illness was a matter taken up by me with Mr Rana at the outset of the hearing. Some time was taken up in my discussion with Mr Rana of his changing positions as to whether or not he would be calling Dr De Pasquale, a medical practitioner who had provided him with treatment over a considerable period of time. Ultimately and on 6 April 2004 this issue came to a head. I gave Mr Rana the opportunity to ascertain the availability of Dr De Pasquale for the next day’s sitting. I expressed concerns about Mr Rana’s changing state of intention with respect to the calling of medical evidence. However, Mr Rana made it clear that his final decision was that he would not require Dr De Pasquale to give evidence and ultimately, as I indicated above, no medical witness was called by him. (I should say that notwithstanding these matters Mr Rana subsequently made and then abandoned an application to re-open his case for leave to call medical evidence. As indicated above I do not propose to repeat the reasons given on rulings on various interlocutory matters during the course of the trial).
One set of documents that was produced upon subpoena filed by Mr Rana was the file conducted by the Student Health Service at the University. It was tendered in evidence and is exhibit ‘5’. In the course of his closing submissions Mr Evans took me to particular parts of that file and there were scattered throughout the file references to various mental or psychological difficulties Mr Rana had been experiencing. For example, there are documents provided by the Disability Liaison Officer at Flinders University in 1996 expressing a view (the author, a Ms Madson, is not a medical practitioner) that Mr Rana has a history of depression which can affect his ability to concentrate. By way of further example there is a letter from a Dr Ken Connell who was apparently a casualty doctor at the Flinders Medical Centre. On 19 June 1998 Dr McConnell assessed Mr Ranjit Rana and considered him to possibly be unfit to sit his examinations. Dr McConnell reported that Mr Rana has low mood and anxiety, affecting his concentration and study capacity. He also highlighted that Mr Rana’s medication to treat his medical illness can also reduce and impair memory.
This medical practitioner is reporting a history provided by Mr Rana and is clearly including his own opinion arising from his examination in the casualty section where Mr Rana had presented. He is not a medical practitioner who has provided any ongoing treatment to Mr Rana. Further, however, there is a medical report from a Dr Alan Cotton who is a psychiatrist dated 16 August 1996. Dr Cotton expresses the opinion that there is no underlying organic disorder but makes reference to Mr Rana needing general emotional support over the preceding two years and expresses the possibility of the existence of the condition of post-traumatic stress disorder.
These examples simply serve to illustrate the disparate nature of the evidence available to me on the question of Mr Rana’s medical condition. A decision of the Administrative Appeals Tribunal in a matter determined in 1988 relating to Mr Rana (some 14 years before the events the subject of this application) was also introduced into the evidence.
In relation to the exclusion from the Graduate Certificate course the position is that the University refers to a whole range of behaviours exhibited by Mr Rana up to the point of the agitation for entry into the course. They are behaviours which could be the manifestation of some underlying psychiatric condition or disorder or they could be the expression of some form of personality disorder or they could be examples of Mr Rana’s inability to exercise appropriate impulse control at times. On the other hand they could be manifestations of a tactical decision made by Mr Rana to promote his entry into the course in a particular way. I am not saying that one or other of these explanations is the explanation for any particular behavioural matter upon which the University relied in excluding him. It remains possible that it is a combination of one or more of these factors.
Fundamental to the exercise and an application of this nature, however, is the presentation of evidence from an appropriately qualified medical practitioner as to firstly the existence of any disorder, malfunction, illness or disease on Mr Rana’s part which can be described as a disability as defined in s.4 of the Act, always bearing in mind the “overlapping operation” of the various parts of the definition as described by the High Court in Purvis (ibid) at [210].
Mr Rana appears to have proceeded upon the basis that it is enough for him to point to the issue of his mental health having been a topic of correspondence or discussion between him and various officers of the University over the period of time of his dealing with the University and that the Court should infer from that that he has some underlying mental health issue or series of issues which accounts for the University’s treatment of him.
That is very far from being a sufficient discharge of Mr Rana’s responsibility to adduce evidence in relation to the existence of his disability. What is required is medical opinion from suitably qualified persons as to their diagnosis accompanied by descriptions of the treatment provided to him and, crucially, the expression of opinion as to how the diagnosed condition or conditions manifests itself in the behaviours which the University has purportedly relied upon in excluding him from the certificate course. Mr Rana’s position is that the reasons advanced by the University were merely ostensible or proxy reasons and that the real reason was that he was being treated differently from other persons who did not have the disability.
If such medical evidence had been adduced by Mr Rana the next step would have been to determine whether Mr Rana was treated any differently than students applying for entry into the course who did not suffer from his disabilities so described. The appropriate comparator would have been in relation to students who displayed the same behaviours but who were without the disability. But the evidence has not taken us to that stage in this case because I am unable to determine what, if any, disabilities Mr Rana was suffering from at the time of his application for entry into each of these courses. It is entirely inappropriate for me to speculate about the matter or to proceed upon the basis of some assumption that there must be some underlying disability or disabilities which account for Mr Rana’s behaviour. As indicated above, there are a number of alternative explanations and I have been given no basis for preferring one over the other.
The concerns I expressed at the outset of the case in relation to the absence of material in relation to the topic of disability have been borne out by the conduct of the case. I think it significant to set out the relevant parts of the transcript of 6 April 2004. Firstly, on 5 April 2004 at page 36 of the transcript:
“HIS HONOUR: All right. I will decide the case on the evidence that's presented, Mr Rana. If you've chosen not to call a psychiatrist, or not to call a treating psychiatrist, or any other person who has provided you with assistance, that's a decision you make, like any other decision, as part of the course of your trial.
MR RANA: I can present to you the recently adduced evidence before the Administrative Appeals Tribunal. That transcript is before your magistrate court registry. I will ask the registrar, probably, to portion that part of the doctor's evidence if you ‑ ‑ ‑
HIS HONOUR: No. If you were going to adduce evidence on that topic you would need to call a witness and that witness would need to be cross‑examined. This is something you had better give some thought right at the outset, Mr Rana. As I say, it's a matter for you. I'm not suggesting your case will necessarily be prejudiced by you not calling psychiatric evidence. I suppose, though, in a case where you're relying on the Disability Discrimination Act and you're relying specifically upon psychiatric or mental disability and you don't call such evidence, I suppose to some extent that might be described as unusual. They're matters for you. It certainly wouldn't be remedied by handing up a transcript of some evidence in another place.
MR RANA: Pardon?
HIS HONOUR: If there is a problem associated with you not calling a psychiatrist ‑ ‑ ‑
MR RANA: I cannot afford it, you know.
HIS HONOUR: - - - it's not going to be remedied by trying to hand up a transcript of what someone else has said in another tribunal because, of course, you can't cross‑examine a transcript. The witnesses the respondent calls you're going to get the chance to ask them questions about everything they have said in their affidavits. Of course, it's only fair that they have the same opportunity to ask questions of the witnesses you're relying upon. If you have made a decision that you can't call a psychiatrist because you can't afford it, or for whatever other reason, that's just part of the variety of decisions you make about conducting your case. The case will stand or fall on the evidence you do call.
MR RANA: Thank you, your Honour.
Mr Evans put to me, at page 34 of the transcript, that there was no evidence as to disability. Then, on the following date, at page 107, the following exchange occurs. Mr Rana had provided various medical reports to Mr Evans and had asked for a subpoena to be made returnable for the following week (that is, after the five days allocated to hear the matter) to call a Dr. Fellner:
“HIS HONOUR: You see, Mr Rana, what this is all about is, isn't it, that - yesterday it seems to me, if I may say so, for the first time it seems to be the case that your attention has been drawn - and it was drawn by me out of a sense of wanting to ensure the matter proceeds in a fair way, but for the first time yesterday your attention was drawn to your absence of reliance upon any admissible medical evidence and this is a claim under the Disability Discrimination Act.
All these matters you're doing, handing up judgments yesterday and now documents that you're wanting to hand up today, without the authors of the documents being called to be cross‑examined, they are all attempts you're making at the last minute to get around that problem. That's what's happening, isn't it?
MR RANA: No, not at all, your Honour, because I clearly told you of my limitation. I cannot pay doctors to come every time I have a problem. They did pro bono for me for my compensation claim. He spent two days of his time and lost a lot of money. I cannot tell him to come, because he said he cannot do it for me.
HIS HONOUR: Well, the long and the short of it though, Mr Rana, is that those documents can't be admitted with the consent of the other side and, accordingly, I can't receive them unless you're going to find some other basis for putting them before me. It seems to me whatever mode you try to get those documents before me, we're going to run up against the same problem and that is that I can't receive them unless the authors of them are available to be cross‑examined.
MR RANA: Then why can't you issue a summons for next week, because the doctor is not there.
HIS HONOUR: Because this matter is listed for this week and has been for many months. Are there any other matters you wanted to raise at this stage, Mr Rana?
MR RANA: Can you issue a summons for Dr Carmine De Pasquale to come for Thursday?
HIS HONOUR: Well, is he available on Thursday? There's no point in me doing that if he's not available. I suppose I can stand it down while you make some inquiries as to whether he's available. Assuming he is though, Mr Evans, what is your attitude to this course of action?
MR EVANS: I would want a reasonable opportunity to at least look at the doctor's notes. From what Mr Rana has indicated to the court, I would imagine that they would be voluminous, if in fact he's been seeing Dr De Pasquale every - I think he said about eight weeks or something for a period of time. The other matter is I would be reluctant to interpose our witnesses before we had completed the applicant's case. That's something I can give some further consideration to.
HIS HONOUR: Perhaps we will take it a step at a time. If I just stand the matter down for a few minutes.
MR EVANS: There is one matter, your Honour. Mr Rana has subpoenaed Dr Mangos.
HIS HONOUR: Yes.
MR EVANS: He is, I think, present in court in answer to that subpoena.
HIS HONOUR: Yes.
MR EVANS: He certainly yesterday indicated to my instructing solicitor that he had some time constraints today.
HIS HONOUR: I understand that.
MR EVANS: I am not sure whether Mr Rana does still intend to call on the subpoena or not, but, if he does, we could perhaps stand the matter down until say 11.00 and then ‑ ‑ ‑
HIS HONOUR: Certainly. In fact I was thinking before that. Mr Rana, do you have the means - do you have a telephone to ring Dr De Pasquale?
MR RANA: No, your Honour. I think I like to cross-examine Dr Nick Mangos and then ‑ ‑ ‑
HIS HONOUR: No, Mr Rana, I am concerned about you giving proper consideration to ‑ ‑ ‑
MR RANA: Look, I don't want to bother with anything. I think I've got sufficient material and the disability student liaison officer's file. I don't need anybody. I'm quite confident to go through and I don't want to interpose on any of my doctors, because they have been more than helpful to me in my other case and this case is, in my list of priorities, the lowest one. I think I'm quite confident what I'm doing and I don't need any more ‑ ‑ ‑
HIS HONOUR: Mr Rana, can I indicate - because you've said to me not more than two minutes ago you wanted to ask me to issue a subpoena requiring the attendance of Dr De Pasquale on Thursday, I'm happy to stand the matter down for you to ascertain whether he's available on Thursday and we can take that further. I'm concerned about you making decisions one minute and then resiling from them the next, Mr Rana.
MR RANA: Well, because that's how you propose to agitate me. I made some decisions ‑ ‑ ‑
HIS HONOUR: No, I don't accept that at all, Mr Rana; that I'm agitating you. I've done my best to assist you in the proper presentation of your case.
MR RANA: Well, I made a decision I don't want to rely on any doctors. I want to proceed as it is.
HIS HONOUR: Well, you're not going to be given the opportunity to change your mind about this.
MR RANA: No.
HIS HONOUR: As long as you understand that?
MR RANA: I do, with respect.
HIS HONOUR: Ultimately if you make these decisions you've got to accept responsibility for them.
MR RANA: Yes, I will.
HIS HONOUR: All right. So you don't want the opportunity to ascertain Dr De Pasquale's availability on Thursday?
MR RANA: Yes, because I know that in the ‑ ‑ ‑
HIS HONOUR: Is that the case?
MR RANA: That is the case.
HIS HONOUR: I'm happy to give you that opportunity.
MR RANA: That is the case, your Honour.
HIS HONOUR: You don't want it? And do I understand you to be saying that you won't be calling any medical evidence?
MR RANA: No.
HIS HONOUR: Thank you. And that's your final decision? You don't want the opportunity for it to be stood down whilst you consider that?
MR RANA: That is my final decision.
It is stating the obvious to say that where a mental health disability manifests itself in behavioural disturbances the Court should be especially vigilant to ensure there is evidence available to it, not only as to the nature of the disability but as to the way in which the disability manifests itself in terms of those behaviours. No such evidence was made available to me in this case.
Conclusions
I have treated the application as relating to both the Master’s degree and the Graduate Certificate course, even though at some stages of the application it is far from clear that Mr Rana was necessarily intending to include the Master’s degree in his application. In any event, there was no serious challenge by Mr Rana to the University’s decisions in 2001 and 2002 to exclude him from that course on account of the absence of work experience. The requirement for work experience is an integral part of the prerequisite for admission to the course and Mr Rana put nothing to the University and nothing to the Court to indicate that he had satisfied that criteria. I bear in mind that the discrimination on account of disability need not be the only reason for exclusion (see s.10 of the Act) but I was not provided with any evidence upon which I could rely to make a finding of the existence of the relevant disability or the way in which it expressed itself in any relevant behaviours, even if Mr Rana had attempted to suggest, in relation to the decision to exclude him from the Master’s degree, that even though no reliance was placed on his behavioural history, that was the real reason for his exclusion. But that was never put to me by Mr Rana.
The Graduate Certificate exclusion was the principal complaint before me and, as I have indicated above, I am unable to find, on account of no evidence having been adduced of disability and its manifestations, that the exclusion was because of his alleged disability.
These remarks relate equally to any claim for indirect discrimination in relation to either application. In any event, the only possible argument pertaining to indirect discrimination (had evidence as to disability been adduced) would arise from the requirement of group work and Mr Rana made it clear in his oral evidence that he had no real difficulty in group work and that it was raised by him, in the context of proceedings relating to Adelaide University, opportunistically and to provide a vehicle for the carriage of litigation.
As to the claim for victimisation, this was only faintly argued by Mr Rana. I am unable to identify in the evidence before me any acts or threats capable of constituting victimisation of Mr Rana in connection with his (or any other person’s) claim for relief under the Human Rights and Equal Opportunity Commission Act 1986, as that conduct is defined in s.42 of the Disability Discrimination Act. Mr Roger David, whom Mr Rana assisted, had a WorkCover claim. Mr Rana has not pointed to any treatment of himself capable of consisting victimisation.
This application will be dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date:
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