Z v University of A & Ors (No 7)

[2004] NSWADT 81

CITATION:	Z v University of A & Ors (No 7) [2004] NSWADT 81
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Z FIRST RESPONDENT University of A SECOND RESPONDENT Dr D THIRD RESPONDENT Ms B
FILE NUMBER:	001001
HEARING DATES:	26/08/2002-30/08/2002, 20/03/2003-21/03/2003, 24/03/2003-26/03/2003, 5/06/2003-6/06/2003
SUBMISSIONS CLOSED:	12/05/2003
DATE OF DECISION:	04/29/2004
BEFORE:	Goode P - Judicial Member; Clayton S - Non Judicial Member; McDonald O - Non Judicial Member
APPLICATION:	Disability Discrimination - Education - HIV/AIDS - Vilification - Homosexual - Vilification - Homosexual Discrimination - Education - Victimisation - Vilification - HIV/AIDS - Vilification - Homosexual
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Z v University of A (No. 3) [2001] NSWADT 182 Z v University of A (No. 4) [2002] NSWADT 14 Z v University of A, Dr D and B (No. 6) [2003] NSWADT 260 Briginshaw v Briginshaw (1938) 60 CLR 336 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Adams v University of Western Sydney [2001] NSWADTAP 19 Dutt v Central Coast Area Health Service [2002] NSWADT 135 Giorgionne v The Queen (1995) 156 CLR 473 Sutton v Ultimate Manufacturing &Ors (1997) EOC 92-891 R v D and E Marinkovic [1996] EOC 92-841 Anderson v Thompson [2001] NSWADT 11 Burns v Dye [2002] NSWADT 32 Kimble v Souris [2003] NSWADT 49 Western Aboriginal Legal Service Ltd v Jones & Anor [2002] NSWADT 102 Veloskey & Anor v Karagiannikis & Ors [2002] NSWADTAP 18 John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Harou-Soudon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 Kazak v John Fairfax Publications Ltd [2002] NSWADT 77 O’Callaghan v Loder [1984] EOC 92- 023 Waterhouse v Bell (1991) 25 NSWLR 99 Shellharbour Golf Club v Wheeler (1999) 46 NSWLR 253 Bogie v The University of Western Sydney (1990) EOC 92-313 Shaikh v Commissioner, NSW fire Brigade (1996) EOC 92-808 Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 Jones v Dunkel (1959) 101 CLR 298
REPRESENTATION:	APPLICANT In person RESPONDENTS J Oakley, barrister
ORDERS:	1. Complaint dismissed; 2. The Respondents’ application for costs is listed for a case conference on a date to be fixed.

Background to the Complaint

1 On 30 September 1997 the Applicant lodged a complaint with the Anti-Discrimination Board (‘the Board’) alleging that between September 1995 and April 1997, he had been subjected to unlawful discrimination on the ground that he was presumed to be homosexual. (The Applicant maintains that he is not a homosexual person and has never claimed to be.) He also alleged that he had been vilified and victimised.

2 Over the following 2 years the Applicant engaged in lengthy correspondence with the Board. In addition to making wide-ranging allegations of unlawful discrimination, vilification and victimisation, his correspondence contained allegations of fraud, gross academic misconduct and plagiarism. The President referred the complaint to the Tribunal on 19 January 2000 pursuant to s 94(1) of the Anti-Discrimination Act 1977 (‘the ADA’). The University of A (‘the University’) was the only respondent named by the President in the letter of referral.

3 After the referral of the complaint to the Tribunal, the Applicant formally applied to the Tribunal to join 9 individual persons and another university as respondents to the proceedings. The Tribunal joined the second and third respondents only: see Z v University of A (No.3) [2001] NSWADT 182.

4 On 20 July 2001 the Tribunal made an order under s 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of any material or the doing of any other thing that may lead to the identification of the 3 respondents and various other named persons. On 2 August 2002 a similar order was made in relation to the Applicant. Orders were also made enabling the parties to disclose material for the purposes of preparing their respective cases: see Z v University of A, Dr D &B (No. 4) [2002] NSWADT 14.

5 In addition to dealing with various interlocutory matters, the Tribunal heard 10 days of evidence over the period 26 August 2002 to 26 March 2003 and 2 days of oral submissions on 5 and 6 June 2003. Detailed written submissions were also filed with the Tribunal.

6 After the completion of oral submissions, the Applicant sought leave to re-open his case to file further evidence. The Tribunal was not persuaded that it was in the interests of justice to allow the Applicant to do so and dismissed the application on 12 December 2003: see Z v University of A, Dr D and B (No. 6) [2003] NSWADT 260.

7 The Applicant claims that his complaint to the Board discloses the following contraventions of the ADA:

(a) Discrimination on the ground of presumed homosexuality

(b) Imputed homosexual vilification

(c) Victimisation

(d) Imputed HIV/AIDS vilification

(e) Discrimination on the ground of presumed disability, viz, HIV/AIDS

(f) Discrimination on the ground of presumed disability, viz, paranoid schizophrenia

8 The Applicant also claims that Dr D knowingly gave false evidence to the Tribunal on 3 separate occasions. He seeks a ruling from the Tribunal that Dr D committed perjury and that Dr D’s conduct constitutes contempt. We find there is no substance in the Applicant’s claims. We propose to deliver a separate decision outlining our reasons.

9 The Applicant’s case is set out in his Points of Claim filed on 28 July 2000 (subsequently amended) and the particulars set out in his joinder application filed on 22 May 2000 (amended on 10 June 2000). These documents contain numerous allegations against the 3 Respondents and various persons employed by the University of A. After the completion of the evidence, the Applicant reformulated these allegations in his voluminous written submissions. This made it difficult for the Respondents to meet his case. The Respondents’ difficulty was compounded by the Applicant’s failure to quote the evidence accurately. Both the Respondents and the Tribunal made significant allowance for the fact that the Applicant was unrepresented.

10 In order to ascertain whether there is any merit in the Applicant’s case, we have carefully considered the allegations and the supporting evidence. We concluded that some allegations were not relevant to the present inquiry. For the most part, we have not found it necessary to refer to them in this decision. We have summarised the Applicant’s primary allegations in paragraphs 11 to 23 below. This summary is based on the original complaint to the Board, the Points of Claim, the particulars in support of the joinder application, the evidence presented in the Applicant’s case and the Applicant’s submissions, both oral and written. Other relevant allegations are referred to when we consider each of the alleged contraventions of the ADA.

The Applicant’s Primary Allegations

11 The Applicant claims that the University awarded him an upper second class honours degree rather than a first class honours degree on the ground that he was presumed to be a homosexual person (‘homosexual’). He alleges that his studies in his honours year were constantly disrupted by acts of discrimination, vilification and victimisation.

12 The Applicant alleges that a delay occurred in advising the Registrar of the University of his final thesis results and that as a consequence, the Applicant graduated in October 1997 instead of May 1997. He alleges that the delay occurred because his results had been removed or withheld on the ground of his presumed homosexuality.

13 The Applicant claims that during an F 221 class held on 6 September 1995, Dr D, a lecturer in the F Faculty, said to the class that he hated homosexuals. He allegedly asked if there was anyone in the class who was ‘gay’, to raise their hand. While doing so, he looked at the Applicant on a continual basis.

14 On 30 October 1996 Ms C, a fellow honours student in the F Faculty, allegedly said to the Applicant, during a private conversation between them in the corridor of the F Faculty, that he was ‘in love with’ Dr D and that ‘everyone knew’ this. By making this comment, it is alleged that Ms C presumed the Applicant was homosexual.

15 It is also alleged that Ms C repeated the comment that the Applicant was in love with Dr D during a discussion with the Applicant at the University of New South Wales (UNSW) in late April 1997 and that Ms C said this was known by all members of the University’s F Faculty. At the time the Applicant was a student at UNSW. He alleges that other students overheard Ms C’s comments.

16 The Applicant alleges that Ms C told Dr D of her belief that the Applicant was in love with him. He also alleges that Ms C communicated this belief to various staff members and students of the F Faculty. As a consequence, the Applicant alleges that Dr D and other persons thought the Applicant was homosexual.

17 The Applicant also alleges that by making the comment that he was in love with Dr D and by publicly communicating this to other persons, C vilified him on the ground of his presumed homosexuality.

18 During the discussion with Ms C in late April 1997 (referred to in paragraph 15 above), Ms C allegedly attempted to dissuade the Applicant from making a discrimination complaint to the University by telling him that both the Head of the F Faculty, Professor E, and the Dean of the F Faculty, Professor G, would suppress the complaint.

19 The Applicant alleges that when he attempted to obtain tutorial work at the UNSW in early 1997 false references were given by Professors E and J that unfairly portrayed him in a negative light. He alleges that the sole reason for the referees furnishing these unfavourable comments was that they believed him to be homosexual.

20 In August 1998 Ms B allegedly victimised the Applicant by releasing his private email correspondence with Dr D to a psychologist, Dr Leon, without his permission. Ms B allegedly said to the Applicant that he had been given a psychiatric evaluation of ‘paranoid schizophrenic with delusions of grandeur’ and that he had been sexually abusing his own son. She allegedly threatened to reveal these accusations publicly if the Applicant pursued his complaint against the University.

21 Ms B also allegedly told the Applicant that Dr D would make a counterclaim of sexual harassment against the Applicant if he pursued his complaint against the University.

22 As a consequence of the treatment he received the Applicant claims he suffered great loss. He claims he missed out on scholarship and teaching opportunities as well as a first class honours degree. He also claims that he was alienated by various staff members and students, that he was unable to get anyone within the University to act on his complaints, and that in April 1997 he suffered a nervous breakdown and was forced to withdraw his PhD candidature at the UNSW.

23 As a corollary of the aforementioned loss, the Applicant alleges that C obtained a first class honours degree in F, The University Medal for F, a scholarship and admission to the Australian Graduate School of Management (at the UNSW) by fraudulent means.

Onus of Proof

24 In determining whether the Applicant has established his case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondents. See the remarks of Dixon J (as he then was) in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361 – 362. See also Dutt v Central CoastArea Health Service (EOD) [2003] NSWADTAP 3.

Credibility of the Applicant

25 We find the Applicant was not a credible witness. In cross-examination, he gave evidence that was inconsistent with his affidavit evidence. He did not readily admit errors and he frequently gave evasive answers to questions or answers that were not responsive. When cross-examining particular witnesses, he tended to make serious allegations against them without being able to provide any foundation for doing so. He suggested, for example, that Ms B had forged a document (he later withdrew this allegation), that parts of Mr Scully’s thesis had been written by Dr D, that Ms C should not have been awarded first class honours or the University medal, that Ms C and Professor E were guilty of academic fraud, and that students’ marks had been falsified. He also made frequent suggestions that Dr D was a ‘known plagiarist on the public record’ but was unable to substantiate the allegation.

Credibility of the Respondents’ Witnesses

26 In contrast to the Applicant’s evidence, we find the Respondents’ witnesses gave their evidence in a straightforward, credible and frank manner. Although they were cross-examined extensively, they were not shaken in relation to any material evidence. There were occasions on which some of the witnesses were not able to accurately recall dates and the details of conversations. Given the fact that the incidents in question occurred many years ago, this is not surprising.

27 Subject to the exceptions referred to in paragraphs 69 and 150 below, we find that where there is a conflict between the Applicant’s evidence and that given by the Respondents’ witnesses, we prefer the Respondents’ evidence.

The University’s Liability

28 The University admits that it is an educational authority within the meaning of s 4 of the ADA and that, subject to the operation of s 53(1), it is jointly liable for acts done by persons as its employees. In relation to Ms C, the University maintains that at all relevant times she was acting in her capacity as a student rather than as a casual tutor. Had there been any evidence to substantiate the allegations of victimisation and imputed homosexual vilification against Ms C, it would have been necessary to have joined her as a respondent to the proceedings. See Z v University of A, Dr D and B (No. 6) [2003] NSWADT 260.

A. DISCRIMINATION ON THE GROUND OF PRESUMED HOMOSEXUALITY

(1) The Legislative Framework

29 The relevant provisions of the ADA are set out in paragraphs 30-33 below.

Section 49ZO Education

30 Section 49ZO (2) provides:

It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(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 subjecting the student to any other detriment.

Section 49ZP Provision of goods and services

31 Section 49ZP provides:

It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

Section 49ZG What constitutes discrimination on the ground of homosexuality

32 Section 49ZG provides:

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.

33 Section 49ZF provides:

A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

34 The Applicant must establish in relation to each of his allegations that:

· The Respondent(s) presumed he was a homosexual person.

· The Respondent(s) treated him less favourably in the same circumstances, or in circumstances which are not materially different, it treated or would have treated someone who was not presumed to be homosexual.

· Any differential treatment he received was on the ground of his presumed homosexuality or a characteristic that appertains generally to homosexual persons or is generally imputed to homosexual persons (‘homosexual characteristics’).

35 The Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 and the Tribunal in Adams v University of Western Sydney [2001] NSWADT 19 considered that the question of whether there was differential treatment should be considered before the issue of causation. In the more recent case of Dutt v Central Coast Area Health Service [2002] NSWADT 135 the Tribunal at first instance said:

In Aldridge the Appeal Panel said that ‘if there is no relevant differential treatment it is unnecessary to consider the issue of causation’. In the case of a hypothetical comparison, an extension of this might be: ‘but there is no basis on which to assess whether there would have been differential treatment until the cause for actual treatment is known’.
These remarks were not disturbed on appeal: see Dutt v Central Coast AreaHealth Service (EOD) [2003] NSWADTAP 3.

36 There appear to be 8 allegations of unlawful discrimination on the ground of presumed homosexuality against Dr D; 3 allegations on this ground against Professor E; 2 allegations on this ground against Professor J; and 1 allegation on this ground against Ms C.

37 The Applicant must prove that the University of A is vicariously liable for the conduct of the persons specified above (s 53(1)). This means that any findings of unlawful discrimination under the ADA must first be made against the University before joint and several liability can be established against them. In relation to the aiding and abetting allegations, the alleged conduct must precede or at least be simultaneous with the conduct claimed to be unlawful under the ADA. See Giorgionne v The Queen (1995) 156 CLR 473 at 487; Sutton v Ultimate Manufacturing & Ors (1997) EOC 92-891.

(3) Allegations of Discrimination on the Ground of Presumed Homosexuality

38 Central to the Applicant’s allegations against Dr D, Professors E and J, and Ms C is his belief that they thought he was homosexual. The Applicant attributes this belief to their unfavourable treatment of him and to comments allegedly made by Dr D and Ms C. The comments allegedly made by Dr D are discussed in paragraphs 40-45; those allegedly made by Ms C are discussed in paragraphs 51-62.

39 It is the Respondents’ case that the comments attributed to Dr D were never made and that in relation to Ms C, the Applicant has misconstrued her comments. They submit that there is no evidence that anyone in the F Faculty thought the Applicant was homosexual or exhibited any homosexual characteristics. Hence the Applicant’s claim that the ground of his alleged unfavourable treatment was his presumed homosexuality must fail.

Dr D’s comments in the F 221 Class

40 The Applicant gave evidence that during an F 221 class taught by Dr D on 6 September 1995, Dr D told the class that he hated homosexuals and did not want anyone who was ‘gay’ near him or touching him. At the time Dr D was discussing the statistical concepts of hetroskedasticity and homoskedasticity (‘the statistical concepts’). Dr D asked if there was anyone in the class who was ‘gay’, to raise their hand. While doing so, he looked at the Applicant on a continual basis. The Applicant said that he (the Applicant) had a gaunt and sickly appearance because he was suffering from an illness and that he had lost a lot of weight. He described his appearance as similar to the appearance generally imputed to people suffering from HIV/AIDS. He said he remembered the incident because it was the first time he had ever heard such comments. He denied that he is homosexual.

41 Dr D agreed that he taught the statistical concepts in his F 221 class but denied saying the alleged comments. He said that he did not notice that the Applicant appeared ill or gaunt or that he had lost weight.

42 Ms B gave evidence that in her capacity as the University’s Director of Equal Opportunity, she met with the Applicant on 5 December 1997 and asked him whether other students were present at the time Dr D made the alleged comments in class. She said that the Applicant told her that more than 12 students were present but that contacting them ‘would not work’ because they did not have his ‘special powers’. She said that he then told her that he could read people’s minds and that Dr D did not say the actual words aloud. She said that when she asked the Applicant what his motivation was for thinking such thoughts, he replied:

“I know Dr D’s ‘little secret’ concerning his micro-penis.”
She said the Applicant then went on to state that ‘Dr D rapes women students when they laugh at his micro-penis’. The Applicant denied that he said this.

43 Ms B gave evidence that she located 2 former students, Paul Scully and Daniel Walker, who confirmed that they were enrolled in F 221 in 1995 and that they had attended Dr D’s class on the statistical concepts. She obtained statutory declarations from them both.

44 Mr Scully gave evidence that he remembered being present at the lecture where Dr D discussed the statistical concepts in depth. He said there was only one such lecture and that he could not recall Dr D making any of the alleged comments in class. He said that if the comments had been made, they would have ‘stuck in his mind’ and there would have been some discussion among the students afterwards.

45 Another former student, Ms Diana Warren, gave evidence that she was present at all Dr D’s F 221 classes in 1995. She said that if Dr D had made the alleged comments, she would ‘definitely’ have remembered.

The Tribunal’s Findings

46 The Tribunal finds that the comments alleged to have been made by Dr D in the F 221 class on 6 September 1995 were never said. The Tribunal’s reasons are set out in paragraphs 47 to 50 below.

47 We do not accept the Applicant’s evidence that Dr D made the alleged comments. We accept that, as of May 1997, the Applicant may have held the belief that Dr D thought he was homosexual. However there is no reliable or credible evidence that Dr D held such a view or that he harboured any ‘anti-homosexual’ views. We accept Dr D’s evidence that he did not make the alleged comments.

48 Despite the fact that there were 18 students enrolled in the F 221 class, the Applicant was unable to call any corroborating evidence to support his account. There is no evidence that anyone else made a complaint about Dr D’s conduct, confirmed that the alleged words were spoken or raised any concerns with the University, Dr D or anyone else about Dr D’s alleged conduct. We accept the evidence of both Paul Scully and Diana Warren that if the alleged comments had been made, they would have remembered them.

49 Although the alleged comments were made in September 1995, the first time the Applicant mentioned them to anyone was on 14 May 1997 when he sent an email to Dr D (with an annexure addressed to Professor G, the Dean of the F Faculty), advising him that he intended to send the annexure to the Dean. The annexure refers to the Applicant’s alleged telepathic powers:

The reason why he [Dr D] was destroying my life was because he thought that I was gay and that I was attracted to him (I am not, I repeat not gay and I was not attracted to him I just felt so sorry about the tragedy that was his life). He told most of the people in my class with the result, he made my life a living hell. The reason I know all this is that I have the unique ability of seeing what people really think. I can see into their minds and this is how I know about his ‘condition’ and what he thought and what others thought because of him.

I was born with limited telepathic abilities which have been emerging after the age of eighteen.

In cross-examination, the Applicant was unable to explain why he had made these comments. He said he did not have any telepathic powers.

50 Ms B also referred to the Applicant’s professed telepathic powers. We accept her evidence that the Applicant admitted to her that Dr D did not actually say the alleged comments aloud and further, that contacting the students ‘would not work’ because they did not have his telepathic powers.

Ms C’s comment that the Applicant was in love with Dr D

51 The Applicant gave evidence that on 30 October 1996, he had a conversation with Ms C in the corridor of the F Faculty and that he told her that he would be sitting at the same table as Dr D at the upcoming Faculty management party. He said that she replied, in a cavalier manner, that he was sitting at the same table as Dr D because he was in love with him and that everyone knew this. He said he denied that he was in love with Dr D. He said Ms C’s voice could be heard in the rooms leading off the corridor. He said these rooms included those occupied by Dr D and Dr L, his thesis supervisor.

52 The Applicant gave evidence that sometime in late April 1997, he spoke to Ms C in the PhD students’ room at the UNSW and told her that he was going to make a complaint against Dr D for ‘discrimination and plagiarism’. He said that she replied that he would not make such a complaint because he was in love with Dr D and that everyone in the F Faculty knew this. He said that she laughed as she said this. Ms C denied she said this. She also denied that she had ever told anyone that the Applicant was in love with Dr D.

53 Ms C conceded that the Applicant made reference to a plagiarism complaint but she denied that he made any mention of a discrimination complaint. The Applicant said that Ms C told him Professor E would suppress any complaint and he (Professor E) would also make sure that the Dean of the F Faculty, Professor G, did so too. Ms C denied she said this.

54 The Applicant gave evidence that Ms C’s comments were said in the presence of other students and that one of them had subsequently mentioned the ‘altercation’ to him on numerous occasions. The Applicant said the student subsequently said to him that he would deny he was ‘ever there’ if called to give evidence in any proceedings.

55 The Applicant said he was devastated by Ms C’s comments and that, as a consequence, he suffered a nervous breakdown and was forced to withdraw his PhD candidature at the UNSW.

56 Ms C gave evidence that she was part of the came class of students who were studying for the honours degree in F in 1996. She said she recalled having contact with the Applicant during classes as well as some contact outside of class. She said that she would occasionally engage him in conversation because she felt a little bit sorry for him as he did not appear to have many friends. She said she joked with him to put him at ease and that the key feature of her conversations with the Applicant was the frequency with which he referred to Dr D. She said that in 1996 he spoke about Dr D in positive terms. She concluded that he admired Dr D a great deal and that he was infatuated with him. She described it as close to hero worship. She said that her relationship with Dr D did not extend beyond the University. This is consistent with Dr D’s evidence.

57 Ms C said she could not specifically recall having said to the Applicant on 30 October 1996 that he was in love with Dr D; however, based on her belief that he was infatuated with Dr D, she conceded that she may have jokingly said words to the effect that he was obsessed with Dr D. She said she did not mean, nor could it in her opinion have been taken that she meant, that the Applicant was in love in any sexual way with Dr D. She denied that she said to the Applicant that everyone knew that he was in love with Dr D.

58 In response to a question from the Judicial Member, she conceded that because the Applicant seemed to be obsessed with Dr D, it was possible that she had said to him that he was in love with Dr D. She said that she did not intend to convey to the Applicant that he had homosexual feelings for Dr D. She said she had not turned her mind to whether he was or was not homosexual. She denied that she had ever spread rumours about him being homosexual.

59 She agreed that she had a conversation with the Applicant in late April 1997 at the UNSW. She said that on this occasion he was very negative towards Dr D and that he became increasingly agitated as he spoke more and more about him. She said the Applicant also became more incoherent as he became more agitated. She said that he repeatedly said that Dr D’s failings were as a result of his ‘very small penis’. (She assumed that he was referring to Dr D’s alleged failings with women.) She said he repeated this over and over again and then showed her something written on a piece of paper to the effect that ‘Dr D has a very small penis’. She said the paper was stuck to his work station. She denied that she said to the Applicant that he was in love with Dr D.

60 Ms C said there were 2 other UNSW students present in the PhD students’ room when the Applicant started talking to her. One of them walked away and the other one laughed or smiled in a polite fashion. She said she could not recall their names.

61 She conceded that during the course of the conversation, the Applicant mentioned that Dr D had plagiarised various materials. She said he mentioned ‘something about a complaint to Professor E or Professor G’. She said she remembered saying words to the effect that:

This kind of allegation is very serious and unless you have very strong evidence, any complaint you make will be thrown out. If you do not have strong evidence, why bother complaining?

62 As mentioned in paragraph 53 above, Ms B denied that the Applicant told her that he intended to make a discrimination complaint against Dr D.

The Tribunal’s Findings

63 In the absence of any denial from Ms C, the Tribunal accepts that on 30 October 1996, she said to the Applicant, in a jocular manner, words to the effect that he was in love with Dr D. There is no evidence that anyone overheard this remark. We accept that Ms C did not mean by this that the Applicant was in love in any sexual way with Dr D or that he had homosexual feelings for him. We accept Ms C’s evidence that she had not turned her mind to whether the Applicant was or was not homosexual. We accept her denial that she did not say to the Applicant that he was in love with Dr D. We also accept that she did not say to anyone that she thought the Applicant was homosexual; nor did she speak to any students or staff at the University about her belief that the Applicant admired Dr D and was infatuated with him. We accept that the association between Dr D and Ms C was confined to the University.

64 In relation to the conversation that took place in late April 1997, we accept the account given by Ms C. We do not accept that she said to the Applicant that he would not make a complaint against Dr D because he was in love with him and that everyone in the Department knew this; nor do we accept that he said to her that he intended to make a discrimination complaint against Dr D or that she replied that Professors E would suppress any complaint about Dr D and he (Professor E) would make sure that Professor G did so too.

65 The Applicant asked most of the Respondents’ witnesses whether they would consider a man being in love with another man was a characteristic of a homosexual person. Most considered that it would be. However, there is no evidence that any of the Respondents’ witnesses held any views about the Applicant’s sexual preference. Importantly, there is no evidence that anyone within the F Faculty thought that he was homosexual or exhibited any homosexual characteristics.

Allegations of Presumed Homosexuality Against Dr D

66 As we understand the Applicant’s case, there are 8 allegations against Dr D on the ground of presumed homosexuality. We find that none of the allegations has been substantiated. Our reasons are set out below.

67 The first allegation relates to the comments allegedly made by Dr D during the discussion of the statistical concept s in the F 221 class. We have previously found that these comments were not made (see paragraphs 46-50 above).

68 Second, the Applicant alleges that in September 1996, Dr D deliberately said to him he knew nothing about the ‘Engel Grainger’ technique of error correction models (‘the technique’) in order to avoid giving him any assistance. This technique was part of the econometrics component of the Applicant’s thesis. Dr D denied that he said this. The Applicant said that Dr D was in fact assisting another student, Paul Scully, with the same topic. (He said that he had also assisted a former student, Daniel Scholtens, with the technique.) He said that he was extremely angry when he discovered 6 weeks later that Dr D was able to include a discussion of it in a paper he presented to a workshop on the Globalisation of the World Economy.

69 The Applicant said that Dr D was the honours co-ordinator throughout the whole of 1996. Dr D said that to the best of his recollection, he was only the honours co-ordinator for the first half of the year. There was considerable cross- examination on this issue. Suffice to say, the evidence conflicted. We are prepared to accept that he was the co-ordinator for the full year. This was Professor E’s recollection. The Respondents submit that whether Dr D was or was not the honours co-ordinator for the full year, he had no obligation to assist the Applicant with his thesis. We accept this submission. It is consistent with Professor E’s evidence that it was the supervisor’s duty to assist a candidate with the preparation of his or her thesis. Dr D was not one of the Applicant’s supervisors.

70 We accept Dr D’s evidence that although the Applicant may have asked him questions in principle, he did not seek any detailed assistance with econometrics. We do not accept the Applicant’s evidence that Dr D said to him that he knew nothing about the technique; nor do we accept that Dr D refused to assist him with the technique. We accept Dr D’s evidence that it was one of his areas of expertise. In any event, the Applicant’s evidence was not that he requested Dr D to assist him with this technique but that he asked him whether he knew anything about it.

71 We find that there is no reliable evidence that the Applicant was treated less favourably than Mr Scully. Mr Scully said that in 1996 he had 2 thesis supervisors. Dr D was appointed to assist him with the econometrics component of his thesis. We accept Dr D’s evidence that he assisted Mr Scully with econometric techniques in his capacity as his supervisor. Dr D estimated that he spent about 3 hours over 6 sessions assisting Mr Scully with econometric techniques. Although Mr Scully’s evidence suggests that Dr D spent more time than this assisting him, we accept that it totalled less than 30 hours and was provided by Dr D in his capacity as his supervisor. Dr D was not under a similar obligation to assist the Applicant with his thesis.

72 It is not disputed that the Applicant’s supervisors were Professor K and Dr L. In cross-examination the Applicant said that although Professor K was skilled in econometrics, he had not asked him for the assistance he was seeking. The Applicant said that in due course he received the assistance he needed from Dr M and Professor N.

73 Even were we to accept that Dr D had deliberately chosen not to assist the Applicant with the technique, there is no evidence that he did so on the ground of the Applicant’s presumed homosexuality.

74 Third, the Applicant alleges that in mid 1996, about 2 weeks away from the mid year exam, Dr D refused to assist him with an exam question from a previous year’s exam and told him that he would mark his paper ‘very hard’. Dr D agreed that he had declined to assist the Applicant with the question because it was the same as the question he had set for the 1996 mid year take home exam. He said that if he had assisted the Applicant it would have been unfair to other members of the class. Dr D denied that he told the Applicant he would mark his paper ‘very hard’. We accept this denial. We find that there is no reliable evidence that Dr D subjected the Applicant to less favourable treatment or that he declined to assist him on the ground that he presumed he was homosexual.

75 Fourth, the Applicant alleges that following the above conversation about the mid year exam, Dr D refused to assist him with the 1994 exam paper. The Applicant gave evidence that Dr D refused to help him even though it had nothing to do with the 1996 exam. Dr D said that he said to the Applicant, ‘It is not relevant to what we are studying at the moment.’ We accept Dr D’s evidence. We find that he was giving the Applicant advice that the questions in the 1994 exam paper were not relevant to the 1996 exam and that he was not refusing to help him.

76 Fifth, the Applicant alleges that Dr D deliberately avoided him by failing to attend 2 appointments. Dr D said that he could not recall ever missing an appointment with the Applicant. The Applicant conceded in cross-examination that he never raised the issue of a missed appointment with Dr D. Given the Applicant’s concession that he had extensive meetings with Dr D, on average once per week, there is no basis for inferring that Dr D deliberately avoided him. In any event, there is no evidence that Dr D failed to keep appointments with him on the ground that he presumed he was homosexual.

77 Sixth, the Applicant alleges that Dr D excluded him from sitting at his table at the management party on 1 November 1996. He said that the person who sold him the ticket told him that he would be sitting at Dr D’s table; however when he arrived at the function he found that he had been moved to another table away from Dr D. Dr D denied that he had arranged for the Applicant to sit elsewhere. We accept this denial.

78 Seventh, the Applicant alleges that his academic performance suffered in his honours year because of the discriminatory treatment he received from Dr D (as well as other members of the University). He alleges that as a consequence, he was denied first class honours. We find that the Applicant’s academic transcript does not bear out this allegation. In 1996 the Applicant achieved a distinction for the entire year. His thesis was awarded 80% by Professor E and 74% by the external examiner. His honours year marks were consistently better than the marks he achieved in the preceding years. There is no evidence that Dr D reduced any of the Applicant’s marks, let alone on the ground that he presumed he was homosexual. Indeed the Applicant’s academic results show that he received 79% in econometrics, which was the subject taught by Dr D, and that this equalled the highest mark awarded to him in his overall degree.

79 We find that there is no reliable evidence that Ms C did not deserve to be awarded first class honours and the University medal. The Respondents submit that there is no evidence whatsoever that Ms C obtained her results by fraudulent means. We agree. The Respondents’ evidence clearly shows that she was an exceptional student. The Applicant’s assertion that there was an improper association between Professor E and Ms C has no foundation.

80 Eighth, the Applicant alleges that Dr D (as well as Professor E) was responsible for the delay in communicating his final honours marks to the Registrar of the University (‘the Registrar’) and that as a consequence, he did not formally graduate until October 1997. The Applicant gave evidence that he should have graduated in May 1997 along with the other honours students. He said he believed that his results had been removed so that he could not graduate in May 1997. He said that both Dr D and Professor E had access to his results.

81 Dr D said that he submitted the Applicant’s results in micro-economics in about the first week of December 1996 and that after that he had no involvement with the award of the Applicant’s final mark for the honours year. He said he did not know how a report from the Applicant’s external examiner for his honours thesis came to be addressed to him. He said he had no recollection of ever having seen the report.

82 Professor E said that he was the internal marker for the Applicant’s thesis and that on Christmas Eve in 1996 he sent the thesis to the external examiner for marking. He said he expected the report of the external examiner would be sent to him as the Chair of the Departmental Examination Committee. We find that he did not discover that this external report, dated 30 January 1997, had been sent to Dr D until the Applicant rang his office in February 1997 to ascertain his results. He said he reported the Applicant’s marks to student records on 19 March 1997. The Applicant’s final mark for the honours year was 78%.

83 We find that the Registrar did not receive the Applicant’s final thesis results until March 1997 because of an administrative delay in forwarding them to Professor E (notwithstanding the fact that the results had been sent to the University on or about 30 January 1997). There is no credible evidence to support the allegation that Dr D, Professor E or anyone else either removed or withheld the Applicant’s final results so that he could not graduate in May 1997. There is also no evidence that the delay had any connection with the Applicant’s perceived sexuality.

84 We accept that the delay caused the Applicant distress. However it clearly had no effect on the Applicant’s acceptance into the PhD course at UNSW or his ability to apply for a scholarship. We find that the Applicant failed to secure a scholarship because he did not obtain the requisite threshold mark of 88%. While it is unfortunate that the Applicant was not able to receive his testamur until October 1997, there is no evidence that the Applicant was not able to obtain an academic transcript of his results in the interim. Indeed the Applicant sent a copy of them to Professor Lodewijks in early 1997 to support his application for a position as a tutor at UNSW.

Allegations of Presumed Homosexuality Against Professor E

85 As we understand the Applicant’s case, there are 3 allegations against Professor E on the ground of presumed homosexuality. We find that none of the allegations has been substantiated. Our reasons are set out below.

86 The first allegation relates to the delay in forwarding the Applicant’s final thesis results to the Registrar. We have already found that there is no evidence to support this allegation (see paragraphs 80– 84).

87 Second, the Applicant alleges that when he applied for a position as a tutor at the UNSW, Professor E supplied a false reference to Professor Lodewijks which portrayed him in a negative light. Professor E gave evidence that when contacted by Professor Lodewijks for a reference on the Applicant, he told him he would be reluctant to place him in front of a class because of his inability to handle views which differed from his own. He said that his comments were based on his observations of the Applicant’s performance as a student and from observing his work. In cross-examination, he said that he gave Professor Lodewijks an honest assessment of the Applicant’s strengths and weaknesses.

88 Professor Lodewijks gave evidence that in 1997 he was Head of the Department of F at the UNSW. He said that in late December 1996 or early January 1997 the Applicant applied for a position as a tutor. He asked him to send an academic transcript and advised him that he would speak to his referees. He said he contacted Professor E who told him that the Applicant was competent but tended to be dogmatic and that he would need to ‘watch him’ in terms of his tutoring style. He said he also spoke to Professor K who said the Applicant was a good student and his honours work was at a distinction level but he needed further training in economic theory. He said that to the best of his recollection, he did not obtain a reference from Professor J about the Applicant’s suitability as a tutor.

89 Professor Lodewijks said that on the basis of the comments made by the Applicant’s referees and his academic transcript, in particular the fact that he only had a pass in the subject, ‘Introduction to Macro Economics’, he advised the Applicant that he would reconsider whether to offer him tutorial work after observing his progress in his post graduate studies.

90 There is no evidence that Professor E held any views about the Applicant’s sexuality. We find that the reference he gave was based on his genuine opinion of the Applicant’s suitability as a tutor. We find that he was not influenced by any perception of the Applicant’s sexuality. There is no evidence to support this allegation.

91 Third, the Applicant alleges that Professor E aided and abetted Dr D’s discriminatory conduct (as alleged in paragraph 80 above). There is no evidence to support this allegation.

Allegations of Presumed Homosexuality Against Professor J

92 As we understand the Applicant’s case, there are 2 allegations against Professor J on the ground of presumed homosexuality. We find that neither allegation has been substantiated. Our reasons are set out below.

93 The first allegation relates to the alleged false reference given by Professor J to Professor Lodewijks. Professor J did not give evidence in the proceedings. Contrary to the Applicant’s submissions, we draw no inference that his evidence would not have assisted the Applicant’s case: see Jones v Dunkel (1959) 101 CLR 298. There is no evidence that Professor J ever provided a reference to Professor Lodewijks about the Applicant’s suitability as a tutor, let alone that it was influenced by any perception of the Applicant’s sexuality (see paragraph 88 above).

94 Second, the Applicant alleges that Professor J aided and abetted Professor E’s discriminatory conduct (as alleged in paragraph 87 above). There is no evidence to support this allegation.

Allegation of Presumed Homosexuality Against Ms C

95 As we understand it, the Applicant alleges that by telling students and members of staff in the F Faculty that the Applicant was homosexual and that he was in love with Dr D, Ms C aided and abetted the discriminatory conduct of Dr D and Professors E and J. There is no credible evidence to support this allegation.

B. IMPUTED HOMOSEXUAL VILIFICATION

(1) The Legislative Framework

96 The relevant provisions of the ADA are set out in paragraphs 97- 98 below.

Section 49ZT Homosexual Vilification

97 Section 49ZT provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction , scientific or research purposes or for other purposes in the public interest, including discussion or debate about expositions of any act or matter.

98 In this Division

Public act includes

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

99 The Applicant must prove that the Respondent(s) committed:

· A public act

· Which incites

· Hatred towards, serious contempt for, or severe ridicule of, a person or group of persons

· On the ground of the imputed homosexuality of the person or members of that group

A public act

100 ‘Public act’ is broadly defined in s 49ZS to include any form of communication to the public, any conduct observable to the public and the distribution or dissemination of any matter to the public. Previous decisions of this Tribunal have adopted a liberal approach when interpreting the definition of ‘public act’. See R v D and E Marinkovic [1996] EOC 92-841; Anderson v Thompson [2001] NSWADT 11; Burns v Dye [2002] NSWADT 32. These decisions support the view that while it is not necessary that a member of the public actually saw the impugned conduct or heard the communication, the conduct or communication must be capable of being seen or heard, without undue intrusion, by a non-participant to constitute a public act. Thus abuse which is loud enough for bystanders to readily overhear may constitute a public act whereas a conversation in a normal speaking voice would probably not: see Kimble vSouris [2003] NSWADT 49.

Which incites

101 Guidance as to the meaning of the words ‘which incites’ can be found in the Tribunal decisions which have considered the meaning of these words in the context of the racial vilification provisions of the ADA. See Western AboriginalLegal Service Ltd v Jones &Anor [2000] NSWADT 102; Veloskey &Anor vKaragiannakis & Ors [2002] NSWADTAP 18; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35. The Appeal Panel in Veloskey held that the word ‘incite’ should be given its ordinary English meaning, namely, to urge, spur on, stir or stir up, animate, stimulate, or prompt to action. Thus it is not sufficient if the words merely convey hatred or express serious contempt or severe ridicule. [ at 21]

102 The preponderance of authority is that s 49ZT (1) does not require proof of an intention to incite and that it is not necessary to prove that anyone was actually incited to respond in the requisite manner. In Veloskey the Tribunal held:

‘In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial. [at 26]

…

Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act? [at 28]

103 In the context of the homosexual vilification provisions of the ADA, the question is, could the ordinary reasonable listener understand from the public act that he/she is being incited to hatred towards, or serious contempt for, or serious ridicule of, a person or persons on the ground of homosexuality? Consistent with the approach adopted in Harou-Soudon v TCN Channel Nine Pty Ltd [1994] EOC 92-604, the hypothetical ordinary reasonable listener is as an ordinary reasonable person not immune from susceptibility to incitement, nor holding prejudiced views of homosexuals.

Hatred towards, serious contempt for, or severe ridicule of, a person or persons

104 The public act must be capable, in an objective sense, of inciting hatred towards, serious contempt for, or severe ridicule of, a person or persons. These words are to be given their ordinary dictionary meaning. The Tribunal at first instance in Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 set out the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie); ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford);

‘serious’ means important, grave’ (Oxford); ‘weighty, important’ (Macquarie);

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’ (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);

‘severe’ means ‘rigorous, strict or harsh’ (Oxford); ‘harsh, extreme’ Macquarie);

‘ridicule’ means ‘subject to ridicule or mockery; make fun of, deride, laugh at’ (Oxford); ‘words or actions intended to excite contemptuous laughter at a person or thing; derision’ (Macquarie).[at 40]

On the ground of the imputed homosexuality of the person or members of the group

105 The reactions specified in paragraph 104 above must be aroused on the ground of the homosexuality of the person or group of persons said to be vilified by the public act. Homosexuality must be ‘a substantially contributing factor’ or ‘an operative ground’ of the incitement. (See O’Callaghan v Loder [1984] EOC 92-023 at 75,499; Waterhouse v Bell (1991) 25 NSWLR 99 at 106 respectively.) Section 4A of the ADA does not apply to the vilification provisions. Hence it is not sufficient if there are other, equally consistent, grounds for the incitement: Veloskey at 30.

(3) Allegations of Imputed Homosexual Vilification

106 The Applicant alleges that he was vilified by Dr D and Ms C, that Ms B aided and abetted the vilification by Dr D and Ms C, and that Professors E and G aided and abetted the vilification by Ms C. We find that none of these allegations has been substantiated. Our reasons are set out below.

Allegation of Imputed Homosexual Vilification Against Dr D

107 There is 1 allegation of imputed homosexual vilification against Dr D. It relates to the comments allegedly made by Dr D in the F 221 class on 6 September 1995. We have previously found that these comments were not made. Accordingly, we find there is no credible evidence to support this allegation.

Allegations of Imputed Homosexual Vilification Against Ms C

108 Thee are 3 allegations of imputed homosexual vilification against Ms C. The allegations are based on the alleged comments made by Ms C that the Applicant was in love with Dr D and that everyone knew this. It is the Applicant’s case that Ms C said this on 2 separate occasions; the first occurred on 30 October 1996 in the corridor of the F Faculty and the second occurred in late April 1997 at the UNSW. The Applicant alleges that Ms C further vilified him by informing members of the F Faculty that he was homosexual and that he was in love with Dr D.

109 We have previously found in relation to the first occasion that Ms C said to the Applicant that he was in love with the Dr D but that she did not say everyone knew this. In relation to the second occasion at the UNSW in late April 1997, we have found that Ms C made neither of these comments. Hence the discussion below is confined to the comment made in the F Faculty on 30 October 1996.

110 The Respondents submit that it is extremely doubtful whether Ms C’s comment could be considered a public act within the meaning of s 49ZT (1). The Applicant said Ms C’s comment was said in a voice that could be heard in the rooms leading off the corridor. He said this included the rooms occupied by Dr D and Dr L. We accept this evidence. However there is no evidence that anyone besides the Applicant and Ms C was present in the corridor or that anyone in either the corridor or the adjoining rooms overheard the comment.

111 Ms C said that in 1996 the Applicant always spoke about Dr D in positive terms. We find that the comment made by Ms C was said in the course of a friendly, private conversation with the Applicant about the upcoming Faculty management party. We further find that the comment was made in response to the Applicant’s comment to Ms C that he would be sitting at the same table as Dr D. We are satisfied that Ms C’s comment was said to the Applicant in a jocular but friendly manner. The Applicant described the manner as ‘cavalier’; Ms C described it as ‘joking’.

112 The Applicant cross-examined various witnesses in an attempt to establish that Ms C was an employee of the University. The Respondents concede that it employed Ms C on a casual basis as a tutor in the second semester of 1996 and the first semester of 1997. The Applicant was not enrolled in the subjects that she tutored in. Contrary to the Applicant’s submissions, we find there is no basis for concluding that the comment made by Ms C, that the Applicant was in love with Dr D, was made in her capacity as an employee or that she was at the time acting as an agent for the University (see Shellharbour Golf Club v Wheeler (1999) 46 NSWLR 253 at 259). We are satisfied that the comment made by Ms C was a private communication to the Applicant.

113 We find that none of the essential elements of s 49ZT (1) has been established. As mentioned in paragraph 65, the Applicant asked most of the Respondents’ witnesses whether they would consider a man being in love with another man was a characteristic of a homosexual. Most considered that it would be. However it does not follow that an ordinary person overhearing those words would be incited to hate, have serious contempt for, or severe ridicule of, the Applicant on the ground of his imputed homosexuality. The Applicant’s submissions misconstrue the requirements of s 49ZT (1). His submissions suggest that if someone who hated homosexuals had overheard Ms C’s comment that he was in love with Dr D, that person would hate the Applicant and Ms C would thereby be in breach of s 49ZT (1). This is not the test. Even were we to assume that Ms C’s communication was a public act, we find that the ordinary reasonable listener would not understand from Ms C’s comment that he/she was being incited to hatred towards, or serious contempt for, or serious ridicule of, the Applicant on the ground of his imputed homosexuality.

114 In relation to the third allegation, we have previously found that Ms C did not turn her mind to whether the Applicant was or was not homosexual; and that she at no stage said to anyone that the Applicant was in love with Dr D or that she thought he was homosexual. Accordingly, we find there is no evidence to support the allegation that Ms C vilified the Applicant by informing members of the F Faculty that he was homosexual and that he was in love with Dr D.

Allegation of Imputed Homosexual Vilification Against Ms B

115 The Applicant alleges that Ms B aided and abetted the vilification of him by Dr D and Ms C as described in paragraphs 107-108 above. The Applicant was unable to point to any evidence to support this allegation.

Allegations of Homosexual Vilification Against Professors E and G

116 The Applicant alleges that Professors E and G aided and abetted the vilification of him by Ms C as described in paragraph 108 above. The Applicant was unable to point to any evidence to support this allegation.

C. VICTIMISATION

(1) The Legislative Framework

117 The relevant provision of the ADA is s 50.

Section 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.

118 The wording of s 50 (1) makes it clear that the Applicant must have been subjected to a detriment on the ground that he had made a complaint or an allegation of the type set out in paragraphs (a) to (d). As was pointed out in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145, the legislative purpose of s 50 (1) is to ensure that victims of discrimination will not be deterred from doing any of the acts set out in paragraphs (a) to (d) by the fear that they may be further victimised. See also Shaikh v Commissioner, NSWFire Brigade (1996) EOC 92-808 at 78, 986; Borg v Commissioner, Department ofCorrective Services & Anor [2002] NSWADT 42 at 165-180.

(2) What Must The Applicant Prove?

119 Put simply, the Applicant must prove that:

· He did or was suspected of doing one of the acts set out in s 50 (1).

· The Respondent(s) subjected him to a detriment on the ground that he did or was suspected of doing one of these acts.

· He was placed under a disadvantage as to a matter of substance, as distinct from a trivial matter.

(3) Allegations Of Victimisation

120 The Applicant alleges that he was victimised by Dr D, Ms C, Ms B, and Professors E, G, H and I. We find that none of the allegations has been substantiated. Our reasons are set out below.

Victimisation Allegations Against Dr D

121 The Applicant alleges that when he complained to Dr D about his discriminatory conduct, Dr D made false and deceptive comments to him in an attempt to stop him from making a formal complaint. The Applicant alleges that Dr D claimed he would be responsible for the suffering caused to Dr D’s children if he went ahead with his discrimination complaint. Dr D concedes that he is divorced and has no children. The Applicant also alleges that Ms B subsequently told him that if he pursued his discrimination complaint, Dr D would make a complaint that he had been sexually harassed by the Applicant.

122 Dr D was cross- examined about the contents of an email he sent to the Applicant on 15 May 1997. This email was sent in response to the Applicant’s email to Dr D dated 14 May 1997 annexing a letter addressed to Professor G. The Applicant informed Dr D that he was intending to send the letter to Professor G. The letter contained allegations of plagiarism against Dr D. Dr D said that he sent the email to the Applicant in an attempt to dissuade him from proceeding with the allegations. He had said he made the comment in the email that his wife and children were ‘bleeding [him] for everything’ because he thought that might dissuade the Applicant from proceeding with the allegations. Dr D agreed that he had lied about having children but said the remainder of the statement was true.

123 We accept Dr D’s evidence that the comment in question was made in an attempt to dissuade the Applicant from making the plagiarism allegations. We find that the comment, whilst untrue, was not made for any other reason. We do not accept the submission that it was made to either prevent or deter the Applicant from making a discrimination complaint. Accordingly, we find there is no evidence to support this allegation.

Victimisation Allegations Against Ms C

124 The Applicant alleges that Ms C victimised him by telling him that Professor E would suppress any discrimination complaint and that he (Professor E) would also make sure that Professor G did so too. We have previously found that this comment was not made.

Victimisation Allegations Against Professor E

125 The Applicant alleges that Professor E victimised him by ignoring the various complaints he made to him about Ms C’s discriminatory conduct. He alleges that he made complaints both in writing and over the phone about Ms Cs conduct. He also alleges that Professor E victimised him because he failed to respond to the complaint he made about Ms C in an email to Professor G on 10 July 1997.

126 The substance of the Applicant’s complaint about Ms C’s conduct is set out in the email he sent to Professor G. The Applicant alleges that he complained to Professor E about Ms C’s conduct in a telephone conversation with him on about 2 June 1997, and in an email to him on 10 July 1997. He also claims that he sent an email to him sometime prior to speaking with him on 2 June 1997. The email is not in evidence. Professor E said he never received this email. We accept Professor E’s evidence.

127 It is common ground that the Applicant rang Professor E on about 2 June and that Professor E agreed to give the Applicant a reference. The Applicant said when he told Professor E that he had suffered a nervous breakdown, he told him to ‘forget all about it’. Professor E said he could not recall saying those words but conceded that he may have said something to the effect of ‘you should try and get on with your life’. He said the Applicant told him:

I have recently had a nervous breakdown caused by Ms C. I will make her suffer as I have suffered. I will destroy her. She has a black heart.

128 The Applicant disputes that he made any reference to Ms C in this conversation. We accept Professor E’s account of the conversation. The Applicant’s account is inconsistent with his own letter of 15 September 1997 to Professor G where he states, in capital letters, that he told Professor E that Ms C had caused him to have a nervous breakdown. Professor E gave evidence that he was worried about Ms C’s safety and that he rang her and told her about his conversation with the Applicant. This was corroborated by Ms C. She said that in mid 1997 she received a phone call from Professor E informing her that the Applicant had made ‘nasty remarks’ about her to such a degree that he thought her safety might have been threatened. Professor E said that he thought the most logical explanation for the Applicant’s behaviour was that he might previously have had a crush on Ms C and that she had rejected him. He said that the Applicant was no longer a student at the University and that he did not wish to become involved.

129 The Applicant relies on the email he sent to Professor E to show that Professor E failed to respond to his complaint about Ms C’s conduct. The Respondent submits that the email of 10 July did not constitute any form of discrimination complaint for which either Professor E or the University needed to take any action. We agree with this submission. The email contains numerous derogatory remarks about Ms C and states that she caused the Applicant to have a nervous breakdown. We find that there is nothing in either the email or the phone conversation which could be described as discriminatory conduct on Ms C’s part; nor is there any evidence that Professor E subjected the Applicant to any detriment. In the absence of other evidence, a person reading or hearing that Ms C had caused the Applicant a nervous breakdown would not suspect that the Applicant intended to make allegations of discriminatory conduct against Ms C. We accept Professor E’s evidence that his relationship with Ms C was confined to the University. We also accept his evidence that he did not respond to the Applicant’s email of 10 July, or take any action in relation to it, as he was of the belief that it was not required.

130 The Applicant also alleges that Professor E victimised him by failing to respond to the concerns set out in his letter to Professor G. Professor E said that Professor G had spoken to him about the Applicant’s letter of complaint dated 15 September 1997. When asked in cross-examination what action he had taken, Professor E said he had ‘collected a full file of documents and made a report’. The evidence shows that Professor G responded to the Applicant’s letter of complaint on 19 September 1997. Although Professor G was not called as a witness, it is reasonable to assume that her letter was based on this report. Her letter is brief. It states:

All our First Class Honours theses are marked by external examiners. I have investigated the case you mention and this is how the marks were derived.

131 It is the Applicant’s case that Professor E failed to respond to his complaint about Ms C as outlined in his letter to Professor G. The Respondents submit that no response was called for from Professor E. We agree (see paragraph 134 below).

Victimisation Allegations Against Professor G

132 The Applicant alleges that Professor G victimised him by ignoring his various complaints against Ms C, Professor E, and indirectly Dr D. He alleges that she failed to comply with the University’s grievance resolution procedures. Professor G did not give evidence in these proceedings. Contrary to the Applicant’s submissions, this does not lead to an inference that her evidence would not have assisted the Respondents’ case: see Jones v Dunkel (1959) 101 CLR 298.

133 The Applicant gave evidence that he sent a letter to Professor G dated 15 September 1997. He enclosed a copy of the email sent to Professor E on 10 July 1997. He also sent a copy of the letter to the Pro Vice Chancellor of the University, Professor I. Professor G responded to the letter on 19 September 1997. The Applicant alleges that her letter failed to respond to his complaints.

134 The Respondents submit that the Applicant’s letter to Professor G contains unsubstantiated accusations and threats against Ms C and misrepresents the contents of the Applicant’s telephone conversation with Professor E on 2 June and his email of 10 July. We agree. We find that Professor G responded appropriately to the allegation that Ms C was not entitled to her first class honours degree and that no response was called for in relation to the misrepresentation of the contents of the Applicant’s email and phone conversation with Professor E. At the time Professor G received the Applicant’s letter of 15 September, the Applicant was no longer enrolled as a student at the University and Ms C was neither a student nor an employee of the University. We are satisfied that in these circumstances Professor G was not required to comply with the University’s grievance resolution procedures.

Victimisation Allegations Against Ms B

135 The Applicant alleges that Ms B victimised him in many different ways. His allegations are set out in paragraph 136 below. We find that none of the allegations has been substantiated.

136 The Applicant alleges that Ms B:

1) Told him that if he pursued his complaints, Dr D would make a counterclaim of sexual harassment against him.

2) ‘Forced’ him to discontinue his discrimination complaints with the Board, citing his mental condition as the reason.

3) Threatened to disclose publicly the Applicant’s psychiatric evaluation of ‘paranoid schizophrenic with delusions of grandeur’.

4) Accused him of sexually abusing his own son.

5) Threatened to ‘destroy’ his career, reputation, marriage, family and means of income if he continued with his discrimination complaints.

6) Told him that if his complaints reached the Tribunal, the accusations set out in points 3) and 4) above would be made public.

7) Offered him psychiatric treatment and counselling on the condition that he discontinued his complaints.

8) Released his private email correspondence with Dr D to Dr Leon without his permission.

137 It appears that the Applicant first wrote to Ms B on 16 October 1997 alleging that he had been discriminated against and victimised at the University because of his ‘perceived sexual orientation’. He provided details of these allegations to Ms B in a letter dated 27 November 1997. It is common ground that the Applicant and Ms B had various face to face meetings and corresponded with each other by letter and by email over a lengthy period.

138 At the first meeting on 5 December 1997, Ms B said that the Applicant raised 3 issues: allegations of plagiarism against Dr D, allegations of academic misconduct against Ms C, and allegations of discrimination. She said that he told her that he had seen a lawyer about his discrimination allegations and that his case would be investigated by the Anti-Discrimination Board. She said she replied:

As you have seen a lawyer about the discrimination claims and you want the ADB investigating them, we will not initiate a separate internal investigation but will respond to the Board’s inquiries. I propose that we investigate the plagiarism allegations first and then the allegations about Ms C.

139 She denied she told the Applicant that the University would investigate his discrimination allegations. In cross-examination, she said that she made it clear to the Applicant that the University would not conduct an investigation if he wanted the matter to be investigated by the Board. She said she understood the allegations related to Dr D’s conduct in the F 221 class and that the Applicant was complaining of discrimination and vilification on the ground of imputed homosexuality. We accept Ms B’s account of the meeting. We do not accept that she gave an undertaking, on behalf of the University, to investigate the discrimination allegations. We find that she advised the Applicant that he had to elect whether he wanted the University or the Board to conduct the investigation. We find that he told her that he wanted an independent external investigation to be conducted by the Board. We find nothing improper in Ms B’s advice. She explained that it was the University’s practice not to duplicate resources in situations where an election has been made for an external investigation. Contrary to the Applicant’s submissions, we find that the University’s grievance resolution procedures did not require the University to conduct an internal examination in addition to the investigation conducted by the Board.

140 Ms B said that during the meeting the Applicant’s language was threatening and that she found him frightening. She said that he told her he would destroy Ms C. The Applicant denied that he had either said this or that his conduct was threatening. We accept the evidence given by Ms C. Her account of the Applicant’s conduct is consistent with the instruction she gave to her staff to arrange for a security guard to be present whenever the Applicant attended for appointments. The Applicant concedes that a security guard was present on these occasions.

141 The Applicant said that on 8 December 1997 he sent an email to Ms B advising her that he was proceeding with his complaint to the Board. He said that he received a response ‘identifying a counter-threat of sexual harassment that could be made [by] Dr D if [he] proceeded with his case’. Ms B denied that she said this. We accept her denial. The Applicant also said that she told him that she was trying to help him and that she asked for any correspondence which could assist. He said he sent his email correspondence with Dr D to Ms B on the basis that it would not be used as evidence in his case. This is discussed in paragraphs 152-154 below.

142 We find that there is no substance in the allegation that Ms B said to the Applicant that if he proceeded with his complaint to the Board, Dr D would make a counter claim of sexual harassment against him.

143 The Applicant said that in 1998 he met with Ms B on 23 April, 12 May and 11 August. Ms B said the last meeting was on 10 August, not 11 August. She said that on 10 August the Applicant brought a letter with him to the meeting withdrawing his complaint to the Board. (Although he sent a letter to the Board withdrawing his complaint, the Board subsequently reinstated his complaint.)

144 Ms B said that during the meeting she told the Applicant:

I want to talk to you about these special powers you have told me about. You know these are not common features of most people. There are a variety of things that might be causing you to regard yourself as having special powers. It might be an organic illness or it may be a mental illness like schizophrenia. In my view you should consider whether you have a problem and seek assistance.

The University can assist you in getting help if you want. I can arrange for you to have some counselling. I want to make clear to you that this offer is not conditional on you withdrawing your complaints.

I can arrange for you to get an assessment from a GP. I don’t want to see the assessment. I just want to ensure that you would benefit from counselling. The University will not pay for long term treatment but it would pay for the assessment and 4 or 5 counselling sessions.

145 The Applicant conceded that Ms B offered him counselling at the University’s expense but said that she implied that it was conditional upon him withdrawing his complaints. In relation to the balance of the above statement, the Applicant put to Ms B that it was a fabrication.

146 Ms B said the Applicant told her that he realised he needed help and that he would be interested in getting counselling. She described his mood as exuberant. She said he told her that he wanted to get on with his life, get married and have children. The Applicant denied that he said any of these things to Ms B.

147 Ms B said she subsequently received a letter from the Applicant dated 11 August advising:

I am confirming what I had told you on this morning’s appointment, that of the discontinuation of my discrimination case with the University of A. I have already confirmed this in writing to the ADB this day.

148 The Applicant’s version of what was said at the meeting differs markedly from that given by Ms B. He said:

Ms B was more blunt this time than other times. She said that she had sent my corresponden[ce] to a psychiatrist who determined and told her that I was a ‘paranoid schizophrenic with delusions of grandeur’.

Ms C said that if the matter proceeds to a full hearing that I would be publicly identified as ‘a paranoid schizophrenic’. I did not know what it meant or how to spell schizophrenic as I had never had to write it before, although I knew it was a mental illness, and which such an accusation in public would have destroyed my career. She identified that the guards outside her office were for her protection from me being a schizophrenic.

Ms B then accused me and my wife of sexually interfering with my stepson (who was not my stepson at the time), she then began to bait me to admit this falsehood. I strenuously denied the accusation. Ms B then went on to say that this accusation will be brought up during the tribunal proceedings which are public. Ms B made it clear that I would be publicly accused of sexually abusing a 5 year old boy and emphasised this with mimicking a camera snapping my picture.

She then said that I submitted my thesis after Christmas and that my degree would be adjusted from a 2A to a pass.

…

I have never in my life sexually or otherwise interfered with or abused my child. Ms B made it clear that if I did not discontinue my complaints against Dr D or my other complaints against Professor E or Ms C that this was what was going to happen and was going to be public.

…

I said that I would discontinue my complaint. I had no choice as my career and reputation was to be destroyed if I did not. That afternoon I wrote to the Board to discontinue my complaint. I identified mental problems as the reason. Problems which I did not identify were caused by Ms B…

149 Ms B denied making the above statements. She denied that she had either expressly or impliedly encouraged the Applicant to withdraw his complaint to the Board. She said he came to the meeting with a withdrawal of his complaint already written out. She denied attempting to influence him in any way about his complaint to the Board. She said that she advised him that there were penalties for submitting a thesis late which were not applied in his case. She also said she told him:

Hearings in these matters are in public. You need to take that into account and possibly prepare Megan and your family about the possibility of the content of your emails being made public. There is some problematic content particularly your sexual banter with Dr D and some of the sexualised references to [your son].

150 Ms B was cross- examined at length about her recollection of the conversation with the Applicant. We accept that the meeting may well have occurred on 10 August rather that 11 August. However we do not accept the Applicant’s submission that this reflects adversely on Ms B’s credit and her ability to accurately recall the conversation. We find that she did not make the statements alleged in paragraph 148. This finding is supported by the contents of the letter the Applicant wrote to Ms B on 11 August. In this letter, the Applicant confirms that he told B at their meeting that morning of ‘the discontinuation of [his] discrimination case with the University’. He also confirms in the letter that he told Ms B that his circumstances had changed significantly for the better and that he wished to get on with his life. The letter concludes:

I would like to thank you for the concern that you have shown me in terms of my well being and apologise if any letter that I sent was in any form abusive.
No mention is made of the matters set out in paragraph 148 in either this letter to Ms B or the letter of withdrawal received by the Board on 12 August 1998.

151 Given that we are not satisfied that Ms B made the alleged statements in paragraph 148, it follows that allegations 2) to 7) have not been substantiated.

152 The final allegation is that Ms B released the Applicant’s email correspondence with Dr D to Dr Leon without his permission. Ms B said that after making enquiries of the Student Counselling Service about the names of suitably qualified practitioners near the Applicant’s residential address, she sent a letter to Dr Leon, dated 17 August 1997, concerning the Applicant. She said she attached a report, summarising the Applicant’s correspondence with Dr D, to the letter. She said that when she met with the Applicant in August, she obtained his consent to ‘provide a report to the counsellor involved of background information about the case’. The Applicant disputes that he gave his consent.

153 Dr Leon responded to Ms B’s letter on 21 August 1997. The letter states:

Following your phone call I’ve received your letter re [the Applicant]. I would suggest a thorough psychiatric assessment as a first step. There are 2 teaching hospitals with psychiatry depts nearby…I would be happy to make a one off appointment with [the Applicant] to refer him to one of these for assessment.

154 We accept Ms B’s evidence that the Applicant consented to the disclosure of the material contained in the report annexed to her letter to Dr Leon dated 17 August 1998. While it would have been preferable for Ms B to have obtained this consent in writing, we are nonetheless satisfied that the Applicant voluntarily gave his consent to the disclosure. While the evidence shows that he subsequently changed his mind, we are satisfied that he did not advise Ms B that he objected to the disclosure until after he met with Dr Leon. Ms B said that Dr Leon was a psychotherapist and that she did not know until she received his letter of 21 August that he would be recommending that the Applicant have a psychiatric assessment. Contrary to the Applicant’s submissions, there is no evidence to suggest that the summary of his email correspondence was ever forwarded to a psychiatrist. In fact the evidence shows that although the Applicant met with Dr Leon, he chose not to have a psychiatric assessment or to take up the University’s offer of free counselling.

Victimisation Allegations Against Professor H

155 Professor H is the University’s Vice- Chancellor. The Applicant alleges that he victimised him by ignoring first, his complaints about Dr D, Ms C and Professor E, and second, his complaint about Ms B’s conduct. The University submits that no complaint has been referred to the Tribunal about Professor H’s conduct. The full extent of the Applicant’s complaints to the Board is unclear. However in his correspondence with the Board in 1998 and 1999 the Applicant makes numerous references to Professor H’s failure to respond to his various complaints, including those relating to Ms B. In these circumstances, we find we have jurisdiction to determine the allegations. Although Professor H did not give evidence, we draw no inference that his evidence would not have assisted the Respondents’ case.

156 On 15 September 1997 the Applicant sent a letter to Professor G complaining about the alleged discriminatory conduct of Dr D, Ms C and Professor E. He sent a copy of this letter o Professor H. He subsequently sent various letters to Professor H throughout 1998 complaining about the conduct of Ms B as well as the conduct of Dr D, Ms C, Professor E and various other University employees. He said his complaints were ignored and he was advised that all contact with him would be terminated. We find that no response from Professor H was called for: the Board was investigating his complaints at the relevant time (including his complaint about Ms B’s conduct) and he had been advised by Ms B that the University would not separately investigate a complaint that was being handled by an external complaint agency. We find there is no evidence to support either allegation.

Victimisation Allegations Against Professor I

157 At the relevant time Professor I was the University’s Pro-Vice Chancellor (Academic). The Applicant alleges first, that Professor I victimised him by ignoring the complaint he sent to Professor H and second, that Professor I failed to forward his complaint to the Dean of Students, Josephine E, because she was related to Professor E, about whom the Applicant was complaining. The University submits that no complaint has been referred to the Tribunal about Professor I’s conduct. There are references in the Applicant’s correspondence with the Board in 1998 to Professor I’s failure to respond to his various complaints. In these circumstances, we find we have jurisdiction to determine the allegations. Although Professor I did not give evidence, we draw no inference that his evidence would not have assisted the Respondents’ case.

158 We find there is no evidence to support the Applicant’s belief that his complaint was not forwarded to the Dean of Students because of her association with Professor E. For the same reasons as those given in relation to Professor H above, we find that no response from Professor I was called for. We find that there is no evidence to support either allegation.

D. IMPUTED HIV/AIDS DISCRIMINATION

(1) The Legislative Framework

159 The relevant provisions of the ADA are set out in paragraphs 160-163 below.

Section 49L Education

160 Section 49L (2) provides:

(1) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

161 Relevantly, section 49B provides:

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of the person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3)…

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

162 Section 49A provides:

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

Section 4 Definition of disability

163 Pursuant to s 4 (1) ‘disability’ means:

(a) total or partial loss of a persons bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

164 The Applicant must prove that:

· HIV/AIDS is a disability for the purposes of the ADA.

· The Respondent(s) presumed he had HIV/AIDS.

· The Respondent(s) treated him less favourably in the same circumstances, or in circumstances which are not materially different, it treated or would have treated someone who was not presumed to have HIV/AIDS.

· Any differential treatment he received was on the ground of his presumed disability or a characteristic that appertains generally to, or is generally imputed to, persons with that particular disability.

(3) Allegation of Discrimination on the Ground of Presumed HIV/AIDS Disability

165 We understand the Applicant to be alleging that as a consequence of the ‘anti -homosexual’ comments allegedly made by Dr D in his F 221 class on 6 September 1995, Dr D unlawfully discriminated against him on the ground that he was presumed to have HIV/AIDS. The Respondents submit that no complaint of HIV/AIDS discrimination has been referred to the Tribunal.

166 Central to the Applicant’s allegations against Dr D is his belief that Dr D thought he had HIV/AIDS. The Applicant said that he had never been HIV/AIDS infected but that at the time of Dr D’s F 221 class on 6 September 1995, he said that he had a very gaunt and sickly appearance, similar to appearances that are generally imputed to people who have HIV/AIDS. In relation to Dr D’s alleged comments he said:

I clearly understood that his statement about homosexuals and more overly not wanting them touching him [or] going near him relating to the commonly held perception of homosexuals … being associated with HIV/AIDS.

167 The Board’s letter dated 19 August 1997, outlining the Applicant’s original complaint, does not refer to the Applicant’s alleged gaunt and sickly appearance, nor does it make any reference to his belief that Dr D presumed he had HIV/AIDS. However there are numerous references to these allegations in the Applicant’s correspondence with the Board in 1998 and 1999. In these circumstances, we find that we have jurisdiction to determine the allegation.

168 The Applicant said that in mid 1995 he began to feel sick. He said that over the next few months he lost a substantial amount of weight and that he noticed he looked sicker and had a more gaunt appearance. He said his local doctor was not sure what was causing his symptoms. He said his symptoms included severe dehydration and severe kidney pain.

169 Dr D said that at the time of his F 221 class on 6 September 1995 he did not notice the Applicant to be gaunt or sickly in appearance. Professor E said he did not observe the Applicant to have suffered a substantial weight loss or to look gaunt. None of the Respondents’ witnesses was able to confirm that the Applicant had a gaunt and sickly appearance at the relevant time.

170 We are prepared to accept that the Applicant may have had a gaunt and sickly appearance on 6 September 1995. However there is no evidence that Dr D or any of the Respondents’ witnesses either observed this to be the case or presumed that he had HIV/AIDS. We find there is no evidence to substantiate this allegation.

E. IMPUTED HIV/AIDS VILIFICATION

(1) The Legislative Framework

171 The relevant provisions of the ADA are set out in paragraphs 172-174 below.

Section 49ZXB HIV/AIDS vilification unlawful

172 Section 49ZXB provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

Section 49ZXA Definition of ‘HIV/AIDS infected’

173 Section 49ZXA defines ‘HIV/AIDS infected’ to mean:

‘infected by the Human Immunodeficiency Virus or having the medical condition known as Acquired Immunodeficiency Syndrome.’

Section 49ZXA Definition of ‘public act’

174 Section 49ZXA defines a ‘public act’ to include:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening, and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected).

175 The Applicant must prove that the Respondent(s) committed:

· A public act

· Which incites

· Hatred towards, serious contempt for, or severe ridicule of, a person or group of persons

· On the ground that the person or group of persons were thought to be HIV/AIDS infected

(3) Allegations of Imputed HIV/AIDS Vilification

176 There is 1 allegation of imputed HIV/AIDS vilification against Dr D. It relates to the comments allegedly made by him in the F 221 class on 6 September 1995. The Respondents submit that no complaint of HIV/AIDS vilification has been referred to the Tribunal. For the reasons given in paragraph 167 above, we find that we have jurisdiction to determine the allegation.

177 We have previously found that Dr D did not make the ‘anti-homosexual’ comments attributed to him by the Applicant and that neither Dr D nor any of the Respondents’ witnesses presumed that he had HIV/AIDS. We find that this allegation has not been substantiated.

F. DISCRIMINATION ON THE GROUND OF PRESUMED DISABILITY, VIZ, PARANOID SCHIZOPHRENIA

178 We understand the Applicant to be alleging that Ms B unlawfully discriminated against him in contravention of s 49L (2) and/or s 49M (1) of the ADA on the ground that she presumed he was a paranoid schizophrenic.

179 The Respondents submit that this allegation does not form part of the Applicant’s complaint to the Board and that it has not been referred to the Tribunal for inquiry. While the Applicant did not expressly state in his correspondence with he Board that Ms B discriminated against him on this ground, his correspondence with the Board contains numerous allegations that Ms B ‘victimised’ him because she believed that he was a paranoid schizophrenic. In these circumstances, we find that we have jurisdiction to determine the allegations.

(1) The Legislative Framework

180 The relevant sections of the ADA are set out in paragraphs 160-163 above. The Applicant also relies on s 49M which is set out below.

Section 49M Provision of goods and services

181 Section 49M provides:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

182 The Applicant must prove that:

· Paranoid schizophrenia is a disability for the purposes of the ADA.

· The Respondent(s) presumed he had this disability.

· The Respondent(s) treated him less favourably in the same circumstances, or in circumstances which are not materially different, it treated or would have treated someone who was not presumed to have that disability.

· Any differential treatment he received was on the ground of his presumed disability or a characteristic that appertains generally to, or is generally imputed to, persons with that particular disability.

(3) Allegations of Discrimination on the Ground of Presumed Disability, viz, Paranoid Schizophrenia

183 The Applicant alleges that Ms B discriminated against him in a number of different ways on the ground that she presumed he was a paranoid schizophrenic. He denies that he has ever had any such disability. He alleges that Ms B:

(1) Had a security guard present each time he met with her.

(2). Advised Ms C to take out an Apprehended Violence Order against him.

(3) Refused to investigate his complaints of discrimination, vilification and victimisation.

(4) Refused to investigate his claims that Ms C and Professor E were guilty of academic fraud.

(5) Forwarded copies of his email correspondence with Dr D to Dr Leon without his permission.

184 The Respondent(s) do not dispute that paranoid schizophrenia is a disability within the meaning of the ADA. However they submit that there is no evidentiary basis for the Applicant’s assertions. We agree. Our reasons are set out below.

185 It is common ground that after her initial meeting with the Applicant on 5 December 1997, Ms B arranged for a security guard to be present at any future meetings with him. When asked in cross-examination whether she had advised Ms C to take out an Apprehended Violence Order against the Applicant, she said:

Ms C’s request to me was for information about a range of procedures that she could adopt in relation to her personal safety. I had some literature and some other material that I made available to her. Part of that material referred to apprehended violence orders but it was not the full quantum of the range of choices that I gave her.

186 We are satisfied that Ms B arranged for a security guard to be present at her meetings with the Applicant and that she gave advice to Ms C about steps she could take to protect her personal safety because she had genuine concerns about the Applicant’s mental stability and the intensity of the hostile feelings he was harbouring. Indeed it was this concern that prompted her to offer the Applicant formal counselling at the University’s expense.

187 We understand the Applicant to be alleging that by responding to his perceived disability in the manner described above, Ms C subjected him to a detriment within the meaning of s 49L (2). The difficulty with this contention is that in December 1997 the Applicant was no longer a student. Therefore s 49L (2) has no application. Section 49M has no application either as Ms B cannot be said to have been providing the Applicant with a service.

188 In relation to the allegation that Ms C refused to investigate his complaints of discrimination, vilification and victimisation, we have previously found that the University was not required to conduct an internal investigation in circumstances where the Applicant had elected to take his complaints to the Board. In any event, we find that because the Applicant was no longer a student at the University s 49L (2) has no application. Section 49M has no application either.

189 In relation to the allegation that Ms B refused to investigate the Applicant’s claims that Professor E and Ms C were guilty of academic fraud, we find that there is no evidence to support it. Ms B said that she advised the Applicant that the University would investigate the fraud claims after the Board had investigated his discrimination complaint. She said the Applicant agreed to this. We accept her evidence. In any event, the alleged failure to investigate the fraud claims cannot be said to contravene either s 49L (2) or s 49M.

190 In relation to the final allegation set out in paragraph 183, we have previously found that Ms B obtained the Applicant’s consent before forwarding a summary of the Applicant’s email correspondence with Dr D to Dr Leon. There is no evidence to support this allegation.

ORDERS

191 The Tribunal makes the following orders:

(1) The complaint is dismissed.

(2) The Respondents’ application for costs is listed for a case conference on a date to be fixed.