Thiab v Western Sydney University - [2022] NSWSC 760

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Thiab v Western Sydney University [2022] NSWSC 760
Hearing dates: 16 May 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [168]-[174]

Catchwords:
HUMAN RIGHTS – political discrimination – university statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs – university nursing degree requires students to complete clinical placements approved by university – student expresses scepticism about safety of Covid-19 vaccination – university cancels student’s clinical placements – internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct – whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination – Nursing and Midwifery Board of Australia Code of Conduct – whether student’s views or beliefs about Covid-19 vaccination are “religious or political”

Legislation Cited:
Cambridge University Act 1856 (19 & 20 Vict c 88)
Equal Opportunity Act 1984 (Vic), s 21
Extradition Act 1870 (33 & 34 Vict c 52)
Macquarie University Act 1989, ss 24, 25
Oxford University Act 1854 (17 & 18 Vict c 81)
Supreme Court Act 1970, s 69
University and University Colleges Act 1900, s 18
University of New South Wales Act 1989, ss 23, 24
University of Sydney Act 1850, s 20
University of Sydney Act 1989, ss 31, 32
Universities Test Act 1871 (34 & 35 Vict c 26)
Western Sydney University Act 1997, ss 5, 6, 22, 35, 36, 40

Cases Cited:
Alajmi v Macquarie University [2019] NSWSC 1026
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500
Cheng v Governor of Pentonville Prison [1973] AC 931
Clark v University of Lincolnshire and Humberside [2001] 1 WLR 1988
Clubb v Edwards (2019) 267 CLR 171
Griffith University v Tang (2005) 221 CLR 99
Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805
Palko v Connecticut, 302 U.S. 319 (1937)
Ridd v James Cook University [2021] HCA 32
Toben v Jones (2003) 129 FCR 515

Texts Cited:
Dicey, A V, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, ed Richard VandeWetering (Liberty Fund, 2008)
Heydon, J D, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015)
Popper, K, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge, 2nd ed, 2002)
Priestland, D, The Red Flag: A History of Communism (Grove Press, 2009)

Category: Principal judgment
Parties: Nera Thiab (Plaintiff)
Western Sydney University (First Defendant)
Leanne Hunt (Second Defendant)
Representation:
Counsel:
M Mando (Plaintiff)
SJ Walsh (Defendants)
Solicitors:
Kanzi Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendants)

File Number(s): 2021/332456
Publication restriction: Nil

Judgment

Section 35 of the Western Sydney University Act 1997 (“WSUA”) prohibits Western Sydney University (the “University”) from discriminating against its students on the ground of religious or political…

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: [2022] NSWSC 760
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the case of Thiab v Western Sydney University, the plaintiff, Ms Thiab, a nursing student at the defendant university, challenged the university’s decision to cancel her clinical placements following her expression of scepticism about the safety of the Covid-19 vaccination. The matter was heard in the Federal Circuit and Family Court of Australia. Ms Thiab claimed that the university’s actions constituted discrimination because of her religious or political views in contravention of the university’s statutes, which prohibit discrimination on such grounds.

The court was required to determine whether Ms Thiab’s expression of scepticism about the Covid-19 vaccination could be considered a view or belief protected by the university statute. Additionally, the court had to assess whether the university’s actions were discriminatory because of her views or beliefs, and whether the university’s requirement for a written acknowledgement of unprofessional conduct was a lawful condition for the reinstatement of her clinical placements. The court also needed to consider the relevance of the Nursing and Midwifery Board of Australia Code of Conduct in this context.

The court found that Ms Thiab’s views about the Covid-19 vaccination were not protected by the university statute as they were not religious or political. The court determined that the university’s decision to cancel her clinical placements was not based on her views or beliefs but rather on the potential risk her scepticism posed to the safety and wellbeing of patients during the pandemic. The court held that the university’s requirement for a written acknowledgement of unprofessional conduct was a lawful condition for the reinstatement of her clinical placements. Consequently, the court dismissed Ms Thiab’s claim.

The court ordered that the case be dismissed with no orders as to costs.

Orders