Vafa v University of Newcastle

[2021] NSWCATAD 348

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Vafa v University of Newcastle [2021] NSWCATAD 348

Hearing dates:

21 September 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member

Decision:

(1) The applicant is permitted to amend the complaint in relation to any conduct alleged to constitute victimisation and to have occurred after 24 October 2018.

(2) The matter is listed for further Directions on Tuesday 30 November 2021 at 3pm.

Catchwords:

DISCRIMINATION – victimisation.

Legislation Cited:

Anti-Discrimination Act, 1977 (NSW), ss50,53.

Cases Cited:

Chand v Rail Corporation of New South Wales NSWADTAP 54

Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Texts Cited:

Rees, Rice and Allen, Australian Anti-Discrimination Law, the Federation Press, 2014 second edition

Category:

Procedural rulings

Parties:

Elham Vafa (Applicant)
University of Newcastle (Respondent)

Representation:

Counsel:
Ms V Balut (Respondent)

Solicitors:
Applicant (Self-Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2021/00186263

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. This was an application for leave to amend a complaint.

2. The applicant lodged a complaint with Anti-Discrimination New South Wales on 7 December 2020. She alleged victimization, a breach of sections of 50 and 53 of the Anti-Discrimination Act 1977 (referred to here as ‘the Act’) due to her previous claims of sexual harassment and discrimination. Those claims were made against the University of Newcastle and another, in relation to conduct that alleged occurred during her candidacy as a PhD student.

3. The period accepted by Anti-Discrimination NSW as being the complaint period for this complaint is 6 January 2020 to 3 December 2020. The respondent indicated that the complaint was not capable of conciliation and both parties sought that it be referred to the Tribunal. Anti-Discrimination New South Wales therefore referred it to the Tribunal for hearing pursuant to section 93C of the Act.

4. On 28 July 2021, at a case conference, the applicant made an application to amend her complaint. The Tribunal ordered that the applicant prepare submissions in support of her amendments, and the respondent to prepare submissions in reply to those of the applicant. Submissions were filed by both parties and the matter was listed for an oral hearing, which took place by telephone and AVL link.

Other claims of the applicant

5. The applicant has also filed previous allegations of sexual harassment and discrimination against the University of Newcastle and others arising from her candidacy as a PhD student. That complaint was made on 5 April 2018 with Anti-Discrimination NSW and followed up with two further complaints lodged on 14 September 2018 and 24 October 2019. The periods of those complaints were 1 August 2015 to 5 April 2018, 6-14 September 2018 and 22 October 2018 to 24 October 2018.

6. Those complaints were, as summarised by Anti-Discrimination NSW, that the applicant was discriminated against on the basis of her sex whilst an international PhD student, sexually harassed by her then academic supervisor, Dr John Holdsworth and that when she complained about this she was victimised in various ways. Those allegations are denied by the respondents.

7. A hearing regarding those allegations has taken place and the decision of Principal Member Britton is reserved.

8. The applicant stated during the interlocutory hearing in the present matter that she sought to amend her earlier complaint during the hearing before Principal Member Britton, but that the application was refused because the respondent would not have had a proper opportunity to examine and respond to the proposed amendments. She has therefore sought to amend her present complaint to include matters that were not part of her previous complaint.

9. The applicant has also lodged a claim against the University of Newcastle for breach of her privacy under the Privacy and Personal Information Protection Act 1998.She says that that application deals with issues arising from her candidacy as a PhD student but that it is a different cause of action, so she should be permitted to amend her complaint to include matters of fact that are being dealt with in her claim under the Privacy and Personal Information Protection Act 1998.

Legislative framework

10. Section 103 of the Act provides as follows:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

11. The Tribunal has a discretion to permit a complainant to amend the complaint pursuit pursuant to section 103 of the Act at any stage in proceedings and to include additional complaints that were not included in the complaint as investigated by the President, Anti-Discrimination New South Wales. The amendment may be made subject to such conditions as the Tribunal sees fit.

12. In Chand v Rail Corporation of New South Wales NSWADTAP 54 at [37]-[38], the Appeal Panel of the then Administrative Decisions Tribunal set out considerations to which the Tribunal may have regarding considering whether or not a complaint may be amended as sought as follows:

“37. The ordinary grammatical meaning of s 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal’s decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38. There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal’s conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.”

Consideration

13. The Tribunal has considered the written and oral submissions of both parties.

14. The complaints sought to be added to the existing claims arise out of the candidature of the complainant at the University, so are connected with the subject matter of the present complaint.

15. Although Anti-Discrimination NSW has not investigated or conciliated the possible amendments to this claim, the Tribunal notes that the present complaint was referred as not being capable of conciliation.

16. There is merit in all of the complaints that may constitute a breach of the Act being determined in the one hearing. That will not be the case here. There has already been a hearing in relation to some complaints by the applicant against the respondents and she has lodged a second complaint that she now seeks to amend. She also says that if she is not permitted to amend her present complaint, she will lodge a further complaint with Anti-Discrimination NSW.

17. If the applicant were to lodge a further complaint, Anti-Discrimination NSW must make a determination pursuant to s89B(2)(b) as to whether to accept for investigation, or decline a complaint in relation to conduct that, in part or in whole, occurred more than 12 months prior to the date of the complaint. Section 89B(4) provides that a decision a decision made under s89B is not reviewable by the Tribunal.

18. Permitting the applicant to amend her present complaint would obviate further delay in having matters concerning the university and its employees dealt with. This is a factor that should be given significant weight in this case.

19. On the other hand, the fact that the applicant has already lodged an application that dealt with matters that occurred in 2018 and that those matters are presently before the Tribunal, is a matter that ought also to be considered in the exercise of the Tribunal’s discretion as to whether and, if so, on what terms, the applicant may be permitted to amend her claim.

20. To permit the applicant to amend her complaint regarding conduct that occurred within the period 1 August 2015 through to 24 October 2018 risks duplication with issues that are presently before the Tribunal and in relation to which a hearing has taken place.

21. The respondent objects to the complaint being amended at all, on various grounds, including the argument that some of the annexures to the submissions of the applicant in support of her application to amend the complaint do not, in themselves, “prove” the allegation that she makes. The Tribunal notes, however, that it is appropriate to consider that the applicant may also provide her own oral evidence as to what occurred and may yet provide further evidence in support of the allegations she makes.

22. The Tribunal accepts the argument of the respondent that the documents provided by the complainant that are said to support her proposed amendments do not necessarily, in themselves, provide sufficient evidence of her claim to be satisfied that she will be successful. They may, however, constitute material that could be taken into account by the Tribunal in determining whether or not the allegations are made out.

23. In a claim on victimization the applicant needs to prove, on the balance of probabilities, that she was victimized because of the complaints she had made under the Act, as set out in s50 of the Act, as set out below.

50 Victimisation

(1) It is unlawful for a person

"the discriminator" to subject another person

"the person victimised" to any detriment in any circumstances on the ground that the person victimised has--

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

24. The term “on the ground that” is not defined in the Act but case law has established that other expressions such as “due to” or “because of” approximate the meaning of “on the ground of” and, in my view, “on the ground that”.

25. Unless the applicant can satisfy the Tribunal on the basis of the evidence and on the civil standard of proof that the behaviour said to constitute victimisation occurred “on the ground that” the previous complaints of discrimination and harassment were made, the claim will not found to have been established.

26. In terms of the law of inference, the Tribunal will be unlikely to draw an inference in relation to causation if a more innocent and probable explanation is accepted, as set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. The other considerations to which the Tribunal may have regard are also set out in Dutt at [70].

27. The application to amend is an interlocutory application and it is not the role of the Tribunal at this stage to determine whether or not the claims made in the proposed amendments are made out.

28. There are no issues of joinder.

29. The claim made under the Privacy and Personal Information Protection Act 1998 will be separately determined. s88B of the Act states that the Tribunal must have regard to the outcome of any such proceedings in determining the complaint, a measure that can prevent “double dipping” in terms of compensation or other remedies. The learned authors Rees, Rice and Allen state in Australian Anti-Discrimination Law, the Federation Press, 2014 second edition at 12.12.5 that s88B “is also designed to permit people who experience discrimination in the workplace to invoke the remedies provided by employment laws as well as those available under anti-discrimination law” in relation to the same conduct. That reasoning is also applicable in relation to privacy matters.

30. Of itself, the fact that the claim under the Privacy and Personal Information Protection Act 1998 has been brought does not prevent the Tribunal permitting amendment of this complaint. In any event little evidence was led by either party as to precisely how the claim pursuant to that Privacy and Personal Information Protection Act 1998 may overlap with this one, if at all.

Determination

31. The Tribunal has determined that it is appropriate to permit the applicant to amend her complaint in relation to any conduct which is alleged to constitute victimisation and which is alleged to have occurred after 24 October 2018 (the last date in the period accepted by Anti-Discrimination NSW as the period of the earlier complaint). This will avoid the need for the applicant to lodge a fresh complaint with the President in relation to such alleged conduct since 24 October 2018, with the attendant delay that would cause.

32. Permitting amendment only from that date should also ensure that there is no duplication in this complaint with matters dealt with in the previous complaint under this Act, in relation to which a decision is presently reserved.

Orders

1. The applicant is permitted to amend the complaint in relation to any conduct alleged to constitute victimisation and to have occurred after 24 October 2018.

2. The matter is listed for further Directions on Tuesday 30 November 2021 at 3pm.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 November 2021