Rowley v Charles Sturt University - [2024] NSWCATAD 229

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rowley v Charles Sturt University [2024] NSWCATAD 229
Hearing dates: 1 May 2024, 4 July 2024
Date of orders: 13 August 2024
Decision date: 13 August 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
Leave is refused for the Applicant’s complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Catchwords:
HUMAN RIGHTS — discrimination — equal opportunity —
leave required for complaint to proceed —
principles applying to grant of leave – direct or indirect discrimination – disability discrimination in education – transgender discrimination – transgender vilification - victimisation

Legislation Cited:
Anti-Discrimination Act 1977
State Records Act 1998 (NSW)

Cases Cited:
Bassili v The Star Pty Ltd [2016] NSWCATAD 167
Bogie v The University of Western Sydney (1990) EOC 92-313
Burns v Sunol [2014] NSWCATAD 62
Caroll v Department of Family and Community Services [2015] NSWCATAD 82
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99
Jones v Ekermawi [2009] NSWCA 388
Langley v Niland [1981] 2 NSWLR 104
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363

Texts Cited:
None

Category: Procedural rulings
Parties: Rev Comrade Rowley (Applicant)
Charles Sturt University (Respondent)
Representation:
Applicant (Self-represented)
Solicitors:
Charles Sturt University Legal Services (Respondent)

File Number(s): 2024/00124433
Publication restriction: none

REASONS FOR DECISION

Procedural Background

Mr Rev Comrade Rowley (the Applicant) was a student at Charles Sturt University (the Respondent) and between 20 January 2014 and Semester 1 of 2023 he was enrolled in the Respondent’s Bachelor of Theology course, on a part-time basis. The Applicant identifies himself as a male transgender asexual student with a disability.
On 24 June 2023 the Applicant lodged a complaint with the President of Anti-Discrimination NSW (the President) against the Respondent, making a number of allegations regarding the conduct of the Respondent and its employees towards him. Additional information was provided by the Applicant on 24 August 2023 in relation to his complaint. The President’s delegate summarised the complaint as alleging disability discrimination in education, transgender discrimination in education, and victimisation, pursuant to ss 49A, 49B, 49C, 49L, 38A, 38B, 38K, 50 and 53 of the Anti-Discrimination Act 1977 (the Act).
On 26 February 2024, the President of Anti-Discrimination NSW (ADNSW) decided to decline the complaint under s 92(1)(a)(i) of the Act, on the ground that she was satisfied that it is lacking in substance. The reasons for that decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCATAD 229
Decision Date: 13 August 2024

CaseChat Overview and Summary

In Rowley v Charles Sturt University, the Applicant, a transgender student, sought to bring a complaint against the University for alleged discrimination under the Anti-Discrimination Act 1977 (NSW). The primary dispute centred on claims of direct and indirect discrimination, disability discrimination, and victimisation, all of which the Applicant alleged were based on her gender identity and transgender status. The matter was heard in the Anti-Discrimination Tribunal of New South Wales.

The central legal issues before the Tribunal were whether the Applicant's complaint met the threshold requirements for leave to proceed under section 96(1) of the Act and whether the alleged incidents constituted discrimination as defined by the legislation. The Tribunal had to consider the principles governing the grant of leave, including the seriousness of the complaint, its prospects of success, and whether it raised important points of principle or practice. Additionally, the Tribunal had to determine if the alleged actions constituted direct or indirect discrimination, disability discrimination, and victimisation as per the Act.

The Tribunal found that the Applicant's complaint did not meet the criteria for granting leave to proceed. The decision was based on the lack of substantial merit in the allegations and the absence of any significant points of principle or practice that would warrant the complaint proceeding. The Tribunal concluded that the evidence did not support the claims of discrimination, disability discrimination, or victimisation as alleged. Consequently, the Tribunal refused the Applicant leave to proceed with her complaint.

Orders

Orders of the court

Leave is refused for the Applicant’s complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rowley v Charles Sturt University [2024] NSWCATAD 229
Hearing dates:	1 May 2024, 4 July 2024
Date of orders:	13 August 2024
Decision date:	13 August 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	Leave is refused for the Applicant’s complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave – direct or indirect discrimination – disability discrimination in education – transgender discrimination – transgender vilification - victimisation
Legislation Cited:	Anti-Discrimination Act 1977 State Records Act 1998 (NSW)
Cases Cited:	Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Bogie v The University of Western Sydney (1990) EOC 92-313 Burns v Sunol [2014] NSWCATAD 62 Caroll v Department of Family and Community Services [2015] NSWCATAD 82 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363
Texts Cited:	None
Category:	Procedural rulings
Parties:	Rev Comrade Rowley (Applicant) Charles Sturt University (Respondent)
Representation:	Applicant (Self-represented) Solicitors: Charles Sturt University Legal Services (Respondent)
File Number(s):	2024/00124433
Publication restriction:	none