Zioukin v The University of Sydney

[2024] NSWCATAD 259

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zioukin v The University of Sydney [2024] NSWCATAD 259

Hearing dates:

25 June April 2024 and on the papers

Date of orders:

02 September 2024

Decision date:

02 September 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Roney KC, Senior Member
M Maher, General Member

Decision:

The Applicant’s application for interim orders is dismissed.

Catchwords:

ANTI-DISCRIMINATION – HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) – interim or stay order – prima facie case – balance of convenience – complaints discrimination on ground of disability

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Companion Animals Act 1998 (NSW

University of Sydney Act 1989 (NSW)

Disability Discrimination Act 1992 (Cth)

Cases Cited:

Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63

Evans v McConaghy Shopping Centres Pty Ltd [2022] NSWCATAD 406
McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310

Texts Cited:

Neil Rees, Simon Rice, Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, Federation Press)

Category:

Principal judgment

Parties:

Andre Zioukin (Applicant)
The University of Sydney (Respondent)

Representation:

Applicant (Self-represented)
Heesom Legal (Respondent)

File Number(s):

2024/00076691

Publication restriction:

Nil

Reasons for the DecIsion

Background to the Application for Interim Relief

1. The Applicant commenced to study at the University of Sydney to obtain a Juris Doctor degree (a JD) on 3 March 2014. The Respondent is a body corporate which was established pursuant to the University of Sydney Act 1989 (NSW) to conduct the University.

2. Section 4.2 of the University of Sydney (Coursework) Rule 2014 (the 'Coursework Rule') prescribes the maximum time limits for completion of an award course at the university. Subsection 4.2(2) of the Coursework Rule states that the maximum period for meeting course requirements for the JD is 10 years (the 10-year Rule). The Applicant has exhausted the 10-year time limit for completion of the JD and his candidature has been automatically terminated in accordance with clause 126 of the university's Coursework Policy 2021 ('Coursework Policy').

3. At the end of Semester 2 of 2022 Semester 1 of 2023 and Semester 2 of 2023, the Applicant was sent emails generated by the university which required him to show good cause why he should be permitted to re-enrol in the JD on the basis that he was unable to meet the requirements for completing his course within the 10-year time limit for its completion.

4. In Semester 1 of 2023, the Applicant showed cause and was permitted to enrol in the JD on the understanding that as his candidature would cease at the end of 2023 (due to the 10-year Rule) and there were no prospects of his completing the JD in the time but that credit for subjects completed might be used towards another course should he wish to transfer to an equivalent degree at some other academic institution.

5. In Semester 2 of 2023, the Applicant failed to show good cause but was permitted to re-enrol in the JD under specific conditions. He was entitled to re-enrol on the basis of his request to allow him time to transfer to another award course. It was noted that he had taken steps to enrol and credit over units of study to the Law Extension Committee. He was told that his candidature in the JD would cease at the end of 2023 as he would have exhausted the 10-year timeframe allowed.

6. On 7 February 2024, following his further attempt to enrol in Semester 1 of 2024, the Respondent advised the Applicant that his request to re-enrol in the JD had been declined because he had exceeded the maximum time limit for completion of the degree. On 5 March 2024, the Respondent then advised the Applicant that no academic decision was required in response to the show good cause notice from Semester 2 of 2023 because the Applicant had exhausted the 10-year time limit for completion of the JD under the 10-year Rule. Consequently, in accordance with clause 126 of the Coursework Policy, the Applicant's candidature had been terminated.

7. On 15 February 2024, the Applicant lodged a complaint with Anti-Discrimination NSW on the grounds of disability by the Respondent between 7 and 15 February 2024 because he had not been permitted to re-enrol in the JD.

8. The complaint stated;

My medical condition allowed me to study, on average, 1 subject per semester. In these circumstances, I could only complete my degree within 12 years. While I was considering transferring to another institution (LEC) and am still considering doing that later this year, I responded to the most recent show cause letter and asked to be enrolled this semester for various reasons.

The request to be enrolled was declined because the university has a rule that this degree should not exceed ten years This rule, while equally applies to all students studying this degree, indirectly discriminates against me because of my medical condition (chronic pain). It is not reasonable in the circumstances because I had good reasons why l could not complete a degree within ten years (the main reason being my medical condition, chronic pain), and to the extent it is relevant, do not presently intend to graduate with aul degree from the University of Sydney (which can consider to do if the University of Sydney is agreeable to that) but want to study and have extra subjects on my transcript if I take those subjects successfully.

For completeness, I note the following. I failed no subjects during the time of my candidature even though some semesters could take 1 or 2 subjects, and in some other semesters while l was studying, got DCs because of my medical condition (sometimes exacerbated by other circumstances), and could not take exams including replacement exams would be able to complete the degree if l did not have the relevant disability within the allowed 10-year period, just like most students who are not affected by my disability (medical condition- chronic pain) can complete their degree.

9. We are prepared to proceed on the basis that the Applicant is seeking orders that have the effect of reversing the consequences of discriminatory conduct amounting to indirect discrimination resulting from a failure to provide him with reasonable accommodations to permit him to complete subjects in the JD degree and which were necessary because of his disabilities.

10. To succeed in such a claim, even before consideration is given to what remedy should flow from it, the Applicant would need to show that the Respondent imposed, and required him to comply with a requirement or condition with which substantially higher proportion of people who do not have his disability comply or are able to comply and that the requirement or condition was not reasonable, having regard to the circumstances of the case. The Applicant would need to show that he did not or was not able to comply with the condition because of his disability.

11. Or if the Applicant’s case was that there was direct discrimination, he would need to establish on the evidence that the Respondent has discriminated against him on the grounds of his disability contrary to section 49L of the Anti-Discrimination Act 1977 (NSW) (the AD Act) by refusing or failing to accept his application for admission as a student, in the terms on which the Respondent is prepared to admit him as student, or denying him access, or limiting his access, to any benefit provided by the University, expelling him, or subjecting him to any other detriment. If he could show this, the onus would be on the Respondent to show that the ‘unjustifiable hardship' exception in s 49L (5) of the AD Act applied. That is, where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

12. Since this came on for hearing in person on 25 June 2024, on 8 July 2024 Anti-Discrimination NSW has declined the Applicant’s complaint under section 92 of the AD Act on the grounds that it lacked substance. That meant that he had until 29 July 2024 to request that it be referred pursuant to s 93A of the AD Act, which he apparently has not done, although that is not a matter we have treated as fatal to his application for interim orders.

13. It is not in issue that the Applicant has a relevant disability. There are a number of medical certificates, the last of which is dated 22 November 2023 that describe a range of disability and medical issues which he has and presumably did have after that, at the times when the alleged discriminatory conduct occurred in February 2024. That report refers to the need for him to be permitted unspecified reasonable adjustments in the future.

14. On 27 February 2024. the Applicant filed an application for an order under subsection 105(1)(c) of the AD Act for an interim order said to be to return the parties to the circumstances they were in before the contravention of this Act or the conduct alleged in the complaint occurred, pending determination of the matter the subject of the complaint.

15. The application for an interim order was originally listed for hearing on 13 March 2024 and by orders on 28 February 2024 the Applicant had been required to file his written submissions and any material he intended to rely on in relation to the application by 4 March 2024. He did not file or serve any documents prior to that date. The Respondent then filed its submissions and evidence in response to the application on 8 March 2024, despite having not received the Applicant's submissions and evidence.

16. Only on the scheduled original date for the hearing namely 13 March 2024, did the Applicant file and serve an affidavit and some evidence relating to his application. The hearing that day was then adjourned at the Applicant's request, and the Tribunal ordered that the matter be determined on the papers. The Applicant and the Respondent consented.

17. A new timetable was set, requiring the Applicant to file and serve all further evidence and submissions on which he relied by 20 March 2024. The Applicant failed to do so. On 25 March 2024, the Applicant then applied for an extension of time to file and serve his further evidence and submissions to which the Respondent consented.

18. On 28 March 2024, the Tribunal made an order requiring the Applicant to file and serve all further evidence and submissions on which he relied by 3 April 2024. The Applicant failed to do so. Then on 26 April 2024, the Applicant applied for a further extension of time to file and serve his further evidence and submissions, and to which the respondent consented.

19. On 30 April 2024, a directions hearing was held and after consulting with the parties, there were orders made that there be a hearing on 25 June 2024 and requiring the Applicant to file and serve all further evidence and submissions on which he relied by 13 May 2024 but which the Applicant failed to do so. On 25 June 2024 shortly before the second scheduled hearing, the Applicant sent an email to the Tribunal attaching his written submissions. The matter was part-heard on that day by the Tribunal and the Applicant made a number of oral submissions concerning his application. After consulting the parties, the Tribunal adjourned the matter for a further hearing on 9 July 2024. During oral submissions made that day, the Applicant conceded that he was seeking to re-enrol to get credit for subjects which might be used towards another course should he wish to transfer to an equivalent degree and not to complete the JD degree and graduate from the Respondent. That is a matter which is significant when consideration is to be given to the balance of convenience, and what the consequences would be for the Applicant if the interim order he seeks is not made.

20. On 4 July 2024, the Applicant requested an adjournment of the further hearing due to a various personal circumstances including that he had been placed into bankruptcy. On 8 July 2024, the Tribunal granted the Applicant's request and adjourned the matter to a date to be fixed.

21. On 17 July 2024, the Tribunal made orders requiring submissions on why there ought not be an in-person hearing dispensed with. Both parties filed submissions on that issue which we have considered in their entirely and carefully. After consideration of those submissions the Tribunal is satisfied that the issues for determination in this matter can be adequately determined in the absence of the parties by considering the written submissions, evidence and other documents provided to the Tribunal, and the oral submissions made by the Applicant during the hearing on 25 June 2024. Indeed, having regard to the fact that a hearing of the matter, which did after all proceed on the basis that the Applicant wanted an expedited outcome to preserve the status quo in respect of his continued enrolment and graduation from subjects at the Respondent, we considered that the matter can and should now be heard on the papers and we so ordered. That is the only practical way in which there might be an expedited outcome to preserve the status quo, or if not that, at least consider whether to make an order that would permit the Applicant to enrol for the 2025 academic year.

22. We have regard to the need for the Tribunal to proceed with just quick and cheap resolution of the real issues raised in the Tribunal.

The Application for Interim Relief

23. The Tribunal has the power under the AD Act, s 105, to make interim orders on the application of either party to:

(1) preserve the status quo between the parties to the complaint, or

(2) to preserve the rights of the parties to the complaint, or

(3) to return the parties to the complaint to the circumstances they were in before the alleged contraventions of this Act which are the subject of the complaint, were said to have occurred, pending determination of the matter the subject of the complaint.

24. In this case, the Applicant seemingly seeks an order which he says will restore the parties to the positions they occupied before the conduct he alleges took place in contravention of the Anti-Discrimination Act occurred; that is, he seeks to be able to re-enrol in the JD although it is clear now that even if that were ordered it would have no effect until the commencement of the 2025 academic year since the 2^nd semester subjects for this year are already being taught and he has not been enrolled in them. His application originally sought that he be permitted to enrol for semester 1 of this year. The passage of time has now made enrolment in this year impossible.

25. What is evident is that what the Applicant is seeking by way of interim orders would, if made, have the effect of giving him the relief he ultimately seeks by way of final orders at least for as long as the matter remains on foot and has not been determined by final orders. So, making the order he seeks would effectively require the Respondent to do now that which it would only be compelled to do if the complaint was made out at a final hearing. In a sense then, a final hearing would have been all but pointless since he will have been enrolled and potentially completed the subjects which the Respondent contends it has no power to enrol him to complete. In that sense this application is more in the nature of a mandatory injunction to compel the Respondent to enrol him, rather than preserve the status quo of the parties pending the final determination of the matter, since he currently is not enrolled in any subject and his status as an enrolled student has been lost.

Applicable Principles

26. At common law, the purpose of interim relief, particularly by way of interim injunction, is to preserve the status quo of the parties pending the final determination of the matter; Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]. The right to such relief lies in the need by the Applicant to ensure that her rights are not practically destroyed by a continuation of the alleged breach; ABC v Lenah Game Meats at [12].

27. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [18]- [19] the Appeal Panel considered the principles to be applied in determining whether or not to make an order under the Anti-Discrimination Act, s 105. The Appeal Panel said:

In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as:

. . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.

28. In Dhillon at [13], the Appeal Panel observed that interim orders should do the minimum necessary to do justice between the parties; as typically, such orders are made pending a final determination of the proceedings.

29. In Dhillon at [19], the Appeal Panel noted that the power conferred on the Tribunal under the Anti-Discrimination Act, s 105 was not “at large”, but rather the power was limited to the making of orders relating to or affecting the statutory rights of the parties under the Anti-Discrimination Act.

30. It is well established that the general approach adopted in applications for interim relief in this Tribunal and in the Courts of course elsewhere is first, to determine whether there exists a prima facie case and secondly, to consider the balance of convenience - or whether the burden placed upon the Respondent, should interlocutory relief be granted, is not justifiable having regard to the damage or danger sought to be averted. This is consistent with the principles set out in Dhillon at [12] where the appeal panel, referring to well-known High Court authority, considered that while the power of the Tribunal under s 105(b) to grant interim relief is not subject to any express limitation, the principles applicable to interlocutory injunctions provide useful guidance.

31. In McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310 Deputy President Hennessy held at [4]-[6]

[4] Authors Rees, Rice and Allen identify the two overlapping purposes of s 105 (and similar provisions throughout Australia):

... first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint: N Rees, K Lindsay and S Rice, Australian Anti-Discrimination Law, Text, Cases and Materials (2nd ed 2014, The Federation Press) at 812.

[5] Section 105 is modelled on the power of courts to make interlocutory injunctions. Common law principles applicable to interlocutory injunctions provide useful guidance: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Kirby J at [110]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne at [89].

[6] In Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 the High Court explained that the court should address itself to two main inquiries:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

32. It may be accepted that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.

The merits of the Applicant’s case

33. It is no easy task to identify what the merits of the Applicant’s case are because it is barely articulated in his material. As we have already identified, we are prepared to proceed on the basis that he is seeking orders that have the effect of reversing the consequences of discriminatory conduct amounting to indirect discrimination resulting from a failure to provide him with reasonable accommodations to permit him to complete subjects in the JD degree and which were necessary because of his disabilities.

34. The application for interim orders says that the “Applicant applies for the NCAT to reverse the decision prohibiting the Applicant to enrol and for University of Sydney to open access to the applicant to enrol on the University of Sydney online system Sydney student (which the university of Sydney could do but where certain individuals did not have "manual" discretion to do it under the relevant University of Sydney policy which is discriminatory to the applicant. The Applicant further relies on the grounds contained in the attached ADNSW complaint.”

35. In his 'draft preliminary (substantive) submissions' dated 23 July 2024, the Applicant argued in support of his application for interim orders that under section 5.2 Coursework Rule, the relevant Dean may vary coursework requirement in exceptional circumstances. He then argues that a person who does not complete a course is not a 'graduate" as defined in the University of Sydney Act 1989 and does not 'fall under' the Coursework Rule. He then argues that clause 126 of the University's Coursework Policy the University must not create a policy that is indirectly discriminatory.

36. Clause 126 of the Coursework Policy states that “[t]he candidature of a student who has not completed the requirements for an award course within the period prescribed under section him, 4.2 of the Coursework Rule is by force of this clause, automatically terminated at, the end of that period”. He contends that it is strongly arguable that this clause gives effect to section 4.2 of the Coursework Rule and has no independent operation or effect.

37. The Applicant relies on the decision in Evans v McConaghy Shopping Centres [2022] NSWCATAD 406 at [7] for the proposition that an entity must not create a policy that is indirectly discriminatory. It is not apparent how anything in that decision is relevant to this case. In that case the Respondents conceded that a security guard had been directed to implement a company policy that was not compliant with the definition of assistance animal provided in the Companion Animals Act 1998 (NSW), s 5, which in turn took its definition from the Disability Discrimination Act 1992 (Cth), s 9(2).That is not the situation here.

38. The Applicant submits that Section 32 of the Interpretation Act 1987, instruments are to be construed so as not to exceed the powers conferred the Acts under which they are made. That may be accepted as a broad proposition.

39. The fundamental problem, assuming these contentions made by the Applicant have merit, is that the fact that the relevant Dean may vary coursework requirement in exceptional circumstances, does not mean he had demonstrated on any evidentiary basis that there were exceptional circumstances, or that it was indirectly discriminatory of him not to treat him as having exceptional circumstances which should have led to his being accommodated by permitting further enrolment into 2024 or 2025.

40. The Respondent accepts that section 5.2 of the Coursework Rule permits the relevant Dean to 'vary a course requirement for a particular student enrolled in an award course in that faculty where, in the opinion of the Dean, exceptional circumstances exist.'

41. It submits, and we accept without finally deciding, that there is merit to the argument that section 5.2 must be read with section 5.1 of the Coursework Rule, which prescribes that, to qualify for the award of a degree, diploma or certificate, a student must: (a) complete the award course requirements prescribed in any relevant faculty resolutions and the course resolutions; and (b) satisfy the requirements of the Coursework Rule and any applicable policy.

42. The Respondent submits and we accept without finally deciding, that there is merit to the argument, that the time limit for completion of an award course prescribed in section 4.2 of the Coursework Rule are not course requirements for the purposes of section 5.2. They are separate requirements prescribed in the Rule that must be satisfied to qualify for an award (as referred to in subsection 5.1(b)). It submits that this is made clear in Note 3 under section 5.2, which states that 'A Dean cannot vary the time limits for completion of the requirements for an award course. See clause 4.2.'

43. As for the applicability of the Coursework Rule to people who are not 'graduates', subsection 1.3(3) of the Coursework Rule relevantly states that, except to the extent that a contrary intention is expressed the Rule binds 'the University, staff, affiliates and students' and "it is a condition of each student's admission to candidature for an award course that the student complies with his or her obligations under this Rule. The term “student” is defined in subsection 3(1) of the University of Sydney By-law 1999 ('By-law') as 'a person who is currently admitted to candidature in an award course of the University. Accordingly, we consider the Respondent has a strong argument that the Coursework Rule applied to the Applicant in his capacity as a student, and he was required to comply with his obligations under it, including in respect of the maximum time limits for completion of an award course prescribed in section 4.2.

44. The Respondent submits and we accept without finally deciding, that there is merit to the argument that the Coursework Rule is delegated legislation made a resolution of the University Senate under subsection 37(1) of the University of Sydney Act 1989 (NSW) for the purposes of the By-law. Subsection 37(1) of the University of Sydney Act provides that the by-laws of the University may empower any authority (including the Senate) or officer of the University to make rules (not inconsistent with the Act or the by-laws) with respect to any or all of the matters for or with respect to which bylaws can be made and that section 4.2 of the Coursework Rule is within power. We do not decide here how such a bylaw stands or is affected by the prohibitions in the AD Act against discriminatory conduct or limits the power of this Tribunal to grant relief in respect of any such contravention.

45. The Applicant has not led evidence or made arguments that show that he has an arguable or prima facie case that that the Respondent imposed, and required him to comply with a requirement or condition with which substantially higher proportion of people who do not have his disability comply or are able to comply and that the requirement or condition was not reasonable, having regard to the circumstances of the case. He would need to show that he did not or was not able to comply with the condition because of his disability.

46. As for an alternative case for direct discrimination, the Applicant has not led evidence or made arguments that show that he has an arguable or prima facie case that the Respondent has directly discriminated against him on the grounds of his disability contrary to section 49L of the AD Act.

The balance of convenience

47. As to the balance of convenience, as we mentioned earlier in these reasons, in oral submissions the Applicant conceded that he was seeking to re-enrol to get credit for subjects which might be used towards another course should he wish to transfer to an equivalent degree and not to complete the JD degree and graduate from the university with that degree. That is a matter which is significant when consideration is to be given to the balance of convenience, and what the consequences would be for the Applicant if the interim order he seeks is not made. That is, the consequence is a relatively insignificant one. He will not have the benefit of credits for subjects he might have concluded in the JD course work to enrol in some other course at some other tertiary institution, should he decide to so enrol.

48. If the Tribunal were to refuse to make the interim order sought, the Applicant would be unable to enrol in any units of study in the JD in Semester 1 of 2025. His candidature as a student has however already been terminated. He does not suggest that being deprived of the opportunity next year to get credit for subjects which might be used towards another course should he wish to transfer to an equivalent degree will have any particular impact on his career prospects or any other prospects that may be relevant. It would not interfere with his ability to seek that remedy ultimately, or to seek compensation for any demonstrated indirect discrimination. In our view, to refuse to grant the interim order will have no significant impact on the Applicant. He may still study elsewhere should he choose to do so.

49. Having regard to the findings we have made, the application for interim orders is refused. The Applicant’s application for interim orders is dismissed.

Orders

1. The Applicant’s application for interim orders is dismissed.

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

Registrar

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

Registrar

Decision last updated: 02 September 2024