Rowley v Charles Sturt University

1. [1]

   On 10 September 2024 the plaintiff filed the summons by which he commenced these proceedings, purporting to appeal from a decision of a single member of the NSW Civil and Administrative Tribunal. The decision, made on 13 August 2024, was that the plaintiff was refused leave to proceed with a discrimination complaint he had made to the President of the Anti-Discrimination Board, that had been referred to the Tribunal pursuant to the Anti-Discrimination Act 1977 (NSW): Rowley v Charles Sturt University [2024] NSWCATAD 229.

2. [2]

   The Tribunal is the second defendant to these proceedings. It has filed a submitting appearance. On 2 October 2024 the first defendant, Charles Sturt University, filed a Notice of Motion seeking to have the summons dismissed on the basis that the purported appeal is incompetent. On 5 December 2024 the plaintiff filed a Notice of Motion seeking leave to amend the summons to claim judicial review of the Tribunal’s decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). The plaintiff also claims an extension of time so far as that may be necessary to enable an application for judicial review to proceed.

3. [3]

   The two Notices of Motion and the summons were listed for hearing together, commencing on 24 February 2026, on the basis that if the Court should allow the plaintiff’s substantive claim to proceed as an application for judicial review, that application would be determined finally.

The plaintiff’s attendance at the University and exclusion from 14 March 2023

1. [4]

   The plaintiff claims he changed his gender from female to male and he is autistic. Medical records tendered by him indicate that the gender transition took place in 2019 and 2020. The University has conducted all its dealings with the plaintiff, including these proceedings, upon the basis of acceptance that he has transitioned to male gender and that his autism constitutes a disability. The impact of the gender transition upon the plaintiff’s emotional well-being and stability and the severity and implications of his autism have not been elucidated in evidence.

2. [5]

   From 20 January 2014 the plaintiff was enrolled in a Bachelor of Theology degree course at Charles Sturt University, School of Theology. The University conducted the course in conjunction with United Theological College, an institution connected with the Uniting Church of Australia. The teaching sites utilised by the School of Theology were the United Theological College at North Parramatta and St Mark’s National Theological Centre, Canberra. United Theological College provided tuition in various subjects that formed part of the degree course.

3. [6]

   The plaintiff was 35 years old when he commenced the course. He studied part-time over the next nine years, taking significantly less than a full academic load each year. At least during 2022 he was in receipt of a Commonwealth Disability Benefit and a Pensioner Education Supplement through Centrelink. The evidence does not disclose when the plaintiff commenced to receive those benefits. On 3 January 2023 Centrelink notified him that he would no longer receive the Pensioner Education Supplement. That led to the plaintiff requesting University staff to write letters that would assist towards reinstatement of the benefit. Details of the letters provided by the University during January and February 2023 will be considered later in these reasons.

4. [7]

   In January and February 2023 the plaintiff made defamatory statements about staff members, alleging that they cancelled courses that the plaintiff wished to undertake and sabotaged his claim for Commonwealth benefits. The plaintiff’s criticism and harassment of staff in this respect, without evidence and without adherence to a formal complaint procedure, led to a charge against him of misconduct. That charge was found proved by a Student Misconduct Committee. With effect from 14 March 2023, the plaintiff was excluded from enrolment for five years.

5. [8]

   The plaintiff brought an internal appeal against his exclusion but on 1 May 2023 the decision was affirmed by the University’s appeals decision-maker. The plaintiff attempted a further appeal to the Commonwealth Administrative Appeals Tribunal. That body lacked jurisdiction and rejected the appeal. In a final attempt to overturn his exclusion the plaintiff lodged an application with the New South Wales Civil and Administrative Tribunal. The application was dismissed at the conclusion of a hearing on 20 June 2023.

Procedural context of the Tribunal’s decision now challenged in this Court

1. [9]

   On 24 June 2023 the plaintiff lodged with the President of the Anti-Discrimination Board a complaint that the University had discriminated against him because of his disability (autism) and his transgender status, that he had been vilified because of his transgender status and that he had been victimised because he had complained about the discrimination and/or vilification. The plaintiff’s complaint to the President had two components, which will be set out in full later in this judgment when they can be more readily understood, after the circumstances from which the complaint arose have been laid out.

2. [10]

   To provide procedural context, it is sufficient at this point to state that one component of the discrimination alleged by the plaintiff concerned the University’s response to his requests in January 2023 for letters to Centrelink to substantiate his eligibility for the Pensioner Education Supplement. The second component concerned the first instance ruling of the University’s Student Misconduct Committee issued on 14 March 2023. He complained that the ruling contained an indirect reference to the name by which he was known prior to transitioning to male gender. The plaintiff referred to the use of his former, feminine name as “deadnaming transphobic vilification of me”.

3. [11]

   The President initially accepted the plaintiff’s complaint pursuant to s 89B of the Anti-Discrimination Act and commenced to investigate it as provided for in s 90(1). The investigation was assigned to a delegate appointed under s 94C. By operation of s 49(6) of the Interpretation Act 1987 (NSW), the functions thereafter performed by the delegate are taken to have been exercised by the President. The powers of the President to resolve the complaint include the following:

4. [12]

   On 26 February 2024 the President’s delegate notified the plaintiff in writing that the investigation was complete and that his complaint was declined on the basis “that [the President] is satisfied that it is lacking in substance”. The plaintiff was further informed that he could ask the President to send his complaint to the Tribunal and that, “if you do so, you must ask the Tribunal’s permission to proceed”. That notification was in accordance with s 93A, by force of which the President was bound to refer the complaint if so requested by the plaintiff.

5. [13]

   The plaintiff duly requested referral, the President complied and s 96(1), as follows, was then engaged:

Orders

1. [14]

   There is no avenue of appeal from the decision of the Tribunal: Choi v NSW Ombudsman [2022] NSWSC 1681 (Chen J). Because the plaintiff was self represented both in the Tribunal and before the Court, it was considered necessary to hear at length his arguments in support of the claim for judicial review and to treat the merits of those arguments, or the lack thereof, as the predominant factor in deciding whether to extend time and allow the amendment.

2. [15]

   By the conclusion of evidence and argument on 25 February 2026, it was apparent that there was no merit in the application for judicial review. The following orders were made, accordingly:

   1. (1)

      Leave is granted to the plaintiff to amend his Summons to the form as filed on 18 November 2024 claiming orders in the nature of judicial review of the decision of the Civil and Administrative Tribunal made on 13 August 2024.

   2. (2)

      Time for filing the plaintiff’s Amended Summons is extended to 18 November 2024.

   3. (3)

      The Amended Summons is dismissed.

   4. (4)

      The plaintiff is to pay the first defendant’s costs of the proceedings.

   5. (5)

      Reasons reserved.

The nature of the Tribunal’s discretion to grant leave

1. [16]

   The question for the Tribunal to determine under s 96(1) of the AD Act was whether it was "fair and just" to grant leave to proceed with the complaint in the Tribunal: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36]-[37] (Schmidt J); Jones v Ekermawi [2009] NSWCA 388 at [58]. Those decisions support a proposition that the discretion of the Tribunal under s 96(1) is unfettered, that it is to be exercised having regard to the purpose of the legislative regime, which requires filtering the cases that the Tribunal should deal with, and that the Tribunal is to bear in mind that refusal of leave may finally determine the rights of the parties.

2. [17]

   The significance of the leave requirement operating as a filter was emphasised by Mortimer J in James v WorkPower Inc [2018] FCA 2083 at [32]. That case concerned whether leave should be granted under the Australian Human Rights Commission Act 1986 (Cth), which is closely analogous to the question that arises under s 96 of the Anti-Discrimination Act. Mortimer J expressed the view that such an application for leave does not require detailed consideration of the merits of the applicant’s underlying case (at [39]).

3. [18]

   In the present case, the Tribunal, constituted by Senior Member Ms D Dinnen, refused leave after extensive review of the documentary evidence and submissions that had been presented to her. The Senior Member concluded as follows:

4. [19]

   The Senior Member correctly understood the nature of the discretion she was required to exercise. The conclusion that leave should be refused was reached with proper regard to the principles governing the Tribunal’s function.

Principles upon which the Tribunal’s refusal of leave may be reviewed

1. [20]

   The plaintiff does not submit that the Tribunal acted beyond its jurisdiction in refusing leave. He purports to have identified numerous errors of law in the Tribunal’s reasons for decision. Any demonstrated errors of law would support a grant of relief: s 69(3) and (4) of the Supreme Court Act 1970 (NSW). Upon examination of the grounds it is apparent that most of them concern alleged errors of fact. If the putative errors were said to arise from the weight to be accorded to the evidence, that was a matter for the Tribunal and criticism of the weight attached to any particular evidence would not substantiate an error of law: DCPI6 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (Beach, O'Callaghan and Anastassiou JJ). As their Honours said in that case, “questions of weight per se are not amenable to judicial review”. As it happens, the facts taken into account by the Tribunal in respect of which the plaintiff asserts error turn out to be matters incontrovertibly established by the documents that the plaintiff himself tendered.

2. [21]

   The plaintiff does not submit that the Tribunal’s decision is legally unreasonable or irrational. That basis of review is “stringent and extremely confined" (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52], [135]). Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 illustrates just how difficult it is to sustain a review on that ground. It was not attempted and is not engaged in the present case.

3. [22]

   The plaintiff presented his documentary evidence to the Tribunal in great disorder. The documents were not arranged chronologically. Nor were they grouped or sequenced according to any subject matter or theme. Many documents were reproduced in duplicate, triplicate and further copies, scattered across various locations in two large folders. In that state of affairs the Senior Member made clear that she would not look at all of the documents tendered and she invited the plaintiff to draw her attention to those that supported his complaint against the defendant. It is clear from the Senior Members’ reasons that she looked at sufficient of them to gain a comprehensive understanding of the dealings between the plaintiff and the University.

4. [23]

   The plaintiff now complains that it was unreasonable for the Senior Member not to have looked at all of his jumbled papers. An administrative decision maker is entitled to make his or her own assessment of what evidence is material and is not bound, in reasons, to refer to every document tendered: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [35] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing). The documents were tendered in this Court in the same chaotic state as that in which the Tribunal received them. The plaintiff did not identify any specific document that the Tribunal overlooked and that might have been significant to the question of leave under s 96(1) of the Anti-Discrimination Act.

5. [24]

   If the plaintiff were able to identify any reviewable error in the Tribunal’s decision he would not be entitled to relief unless it could be shown that the error was material in the sense that there was a realistic possibility of a different outcome had the error not been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]; MZPAC v Minister for Immigration and Border Protection [2021] HCA 17 at [2]-[4]. As will be seen, the plaintiff has failed to identify any error.

Facts established before the Tribunal

1. [25]

   The plaintiff was accorded a hearing in the Tribunal that extended over one and a half days, on 1 May 2024 and 4 July 2024. He tendered over 2,000 pages of documents, including many emails, University records of enrolment, communications from Centrelink and records of proceedings before the University’s Student Misconduct Committee and appeals decision maker. The Tribunal permitted the plaintiff to give evidence by way of a statement of 18 pages. The University tendered a statutory declaration of Ms Joanne Stokes, an employee of the United Theological College who acted as a Course Administration Officer for the University in relation to its School of Theology. Neither the plaintiff nor Ms Stokes was cross-examined.

2. [26]

   The two witnesses gave some evidence about the documents that were before the Tribunal but those documents were mostly self explanatory. All facts that could have had any bearing upon the plaintiff’s discrimination complaint were uncontroversially established by the contemporaneous communications and business records tendered by the plaintiff himself. The authenticity of the documents was not in issue. What follows is a recapitulation of the chronology of events, as established from the plaintiff’s tender documents and as expressly found by the Tribunal.

3. [27]

   By October 2022 the plaintiff had enrolled with the University to study a subject entitled “Christian Ministry” during Session 1 in 2023. The subject was to have been taught by the United Theological College. On 28 October 2022, Dr Anthony Rees, the Associate Head of the School of Theology, sent an email to the plaintiff as follows:

4. [28]

   Ms Stokes said that subjects taught by United Theology College are not necessarily delivered every year on every campus. Whether a particular subject will be taught in any given year depends upon student demand at a particular campus and the availability of teaching staff. Enrolments are monitored at the end of each calendar year. It is not uncommon for a decision to be made as late as January that a particular subject should be cancelled for the year if numbers are low. The evidence before the Tribunal and the Court included illustrations of earlier course cancellations that resulted from low enrolment, as recorded in emails sent during June 2019 and June 2021.

5. [29]

   The plaintiff responded to Dr Rees on 1 November 2022, writing “I guess I will have to go to Canberra and complete the Christian Ministry subject there in Semester 1”. In a further email of 1 November 2022 Dr Rees advised him to check whether his proposed solution was viable, as he was not sure whether the Canberra campus, being St Marks National Theological Centre, would offer the course. The plaintiff did not take action to alter his enrolment for Christian Ministry.

6. [30]

   The plaintiff approached the Canberra campus, which agreed that he could take classes at that location. When informed of this on 1 November 2022, Dr Rees wrote to plaintiff as follows, by email:

7. [31]

   On 1 November 2022 Ms Stokes independently noted that the plaintiff was enrolled for Christian Ministry and that the subject was not going to be taught. She sent him an email in similar terms to Dr Rees’ advice of 28 October 2022 and stated that Christian Ministry would be removed from the University’s Subject Availability List. Ms Stokes said in her statutory declaration that the plaintiff told her Dr Rees had already made him aware of the unavailability of the course.

8. [32]

   Ms Stokes said that on 2 December 2022 she learned that the relevant teaching body in Adelaide was no longer going to teach Christian Ministry, thus confirming that the subject would have to be deleted from the Availability List. She also ascertained that the plaintiff was the only enrolled student for the course. On 19 December 2022 Ms Stokes sent the plaintiff a further email, as follows:

9. [33]

   Ms Stokes said that as at 20 December 2022 the University’s records showed that the plaintiff was enrolled in only two subjects for 2023, as a result of the cancellation of Christian Ministry. Those subjects were to be taught in Sessions 2 and 3, respectively. The plaintiff needed three subjects to complete the degree course. Ms Stokes therefore wrote to Dr Rees and asked him to review the plaintiff’s position.

10. [34]

    On 3 January 2023 Centrelink notified the plaintiff that his Pensioner Education Supplement was no longer being paid “as you have reached the end of the period payable for your course”. Ms Stokes said that on 9 January 2023 the plaintiff phoned her to request a meeting with Dr Rees about his academic program. The plaintiff also told her that he needed a letter for Centrelink to confirm that he had not yet completed his degree course. It appeared to Ms Stokes, from looking at the University’s enrolment record, that he had applied for leave of absence for Session 1 in 2023. Her recollection of what she told the plaintiff in this conversation was as follows:

11. [35]

    In the plaintiff’s statement of evidence to the Tribunal he said that Ms Stokes’ words were:

12. [36]

    The plaintiff submitted that Ms Stokes’ words, on his version, amounted to a refusal on discriminatory grounds to assist him with Centrelink and that they constituted discrimination or vilification. Taking the applicant’s evidence at its highest, the Tribunal member concluded that such a negative construction of the alleged words rested only upon speculation by the plaintiff and should not be adopted where “a more probable and innocent explanation is available”; namely, that Ms Stokes was expressing her understanding that he would be ineligible for the benefit if you were not enrolled for any subject that was going to be taught in Session 1 of 2023. There was no error in that approach to fact-finding.

13. [37]

    On 11 January 2023 at 9:00 am Dr Rees sent an email to the plaintiff to advise him on course options for 2023, as Ms Stokes had requested. Dr Rees noted that the plaintiff was at that date enrolled in one subject for each of Sessions 2 and 3 in 2023. He suggested two subjects from which the plaintiff might choose one, to study in Session 1. His email concluded as follows:

14. [38]

    Before the Tribunal and again before the Court the plaintiff disputed that he ever sought leave of absence for Session 1 in 2023. It is inconsequential whether he did or did not seek such leave. It is possible that the University system would automatically show a student as taking leave of absence for any session in which he or she was not enrolled for any subject. The documentary evidence clearly shows that after Christian Ministry was cancelled, the plaintiff did not enrol for any other subject for Session 1 until 12 January 2023.

15. [39]

    At 1:14 pm on 11 January 2023 the plaintiff sent an email to Dr Rees asking when he would be available for a meeting and stating that he needed a letter for Centrelink certifying that he was still completing his degree. Dr Rees’ reply at 2:04 pm included the following:

16. [40]

    Later again on 11 January 2023 Dr Rees sent by email to the plaintiff a signed letter, addressed to the plaintiff, containing the following confirmation for the benefit of Centrelink:

17. [41]

    Dr Rees’ letter of 11 January 2023 was provided by the plaintiff to Centrelink that day. Centrelink also required “a document that shows what subject you are enrolled into and studying for Semester 1 in 2023”. On 12 January 2023 the plaintiff enrolled in the subject “Paul and His Letters” for Session 1 in 2023, commencing 27 February 2023 and continuing to 16 June 2023. That single subject amounted to a 25% course load for the session. A record from Centrelink shows that after provision of that information, the plaintiff’s Pensioner Education Supplement was approved to continue from 12 January 2023. However, according to an email dated 15 January 2023 from the plaintiff to a staff member at the University’s Canberra campus, Centrelink restored payment of the benefit on condition that the plaintiff would undertake a full-time study load. This would require enrolment for a minimum of three subjects in each session.

18. [42]

    On 16 January 2023 at 3:45 pm Dr Rees emailed to the plaintiff a further letter addressed to him, which commenced as follows:

19. [43]

    At 5:39 pm the plaintiff replied, expressing dissatisfaction with Dr Rees’ outline of how the balance of his degree course could be completed and nominating additional subjects that he wished to study. The plaintiff’s email then digressed into assertions that his academic endeavours were being thwarted by, amongst others, “the no voters”. That is a term that the plaintiff used in his correspondence and in these proceedings to refer to people whom he perceived as having opposed legislative change to permit same-sex marriage. The email included the following (errors as in original):

20. [44]

    At 6:34 pm Dr Rees replied, explaining that the course plan he had laid out was only addressed to completion of the Bachelor of Theology degree course and that he had not been asked to consider additional subjects beyond the course requirements. His email continued as follows:

21. [45]

    As at 20 January 2023 the plaintiff understood that, in order to continue receiving his Pensioner Education Supplement, Centrelink still required him to be a full-time student. On 20 January 2023 he requested Dr Rees to provide “a university letter for centrelink for a part-time study load”. Dr Rees replied to the request as follows:

22. [46]

    On 31 January 2023 Dr Rees wrote the plaintiff yet another letter for him to provide to Centrelink, to support his benefit claim – as follows:

23. [47]

    In late January and in early February 2023, the plaintiff contacted teaching staff at St Marks Theological Centre in Canberra for advice on a course plan to complete his studies for the degree and at the same time to satisfy Centrelink’s benefit eligibility requirements. He also sent emails to Ms Renee Kelly (an administrator at the United Theological College) and Ms Melanie Rumble (the University Ombudsman), amongst others. In those communications the plaintiff made allegations that Ms Stokes was “keen to get rid of me”, that she had engaged in “disability discrimination … that resulted in my [Pensioner Education Supplement] payments being cut for my whole degree”, that she should stop “cancelling my subjects” and “cancelling my disabilities studies payments”. He asserted that University staff had lied to Centrelink “about my studies to get me cut off from my part-time disability study load payments”. The evidence before the Tribunal and now before the Court does not disclose any foundation for any of those claims.

24. [48]

    By email of 2 February 2023 to the plaintiff, Dr Rees referred in general terms to “allegations you have made in recent communications with me” and allegations that the plaintiff had made on a University information platform known as ASKCSU. Those allegations were defamatory of Ms Stokes. Dr Rees referred to the assistance he and others had recently provided to enable the plaintiff to meet his course requirements. He noted that the plaintiff had been “offered the support of a student advocate and referral to counselling if the need should arise”. Dr Rees’ email included the following:

25. [49]

    On 3 February 2023 the plaintiff replied to Dr Rees, with a copy to Ms Rumble and others. The email included the following:

26. [50]

    The matters that the plaintiff referred to in that email as “evidence” were false assertions, contradicted by the correspondence that has been referred to earlier in these reasons. While claiming that Ms Stokes had refused to assist with a letter to Centrelink, the plaintiff said nothing about Ms Stokes’ referral of the request to Dr Rees or about the multiple letters that had then been written to Centrelink, signed by Dr Rees and in at least one case prepared by Ms Stokes.

27. [51]

    On 6 February 2023 the Ombudsman, Ms Rumble responded to the plaintiff in an email that included the following:

28. [52]

    Ms Rumble’s email concluded with a reference to the University’s published policy for prevention of bullying, discrimination and harassment. Specifically, she referred to prohibition on bullying constituted by “repeatedly criticising or making comments intended to discredit or undermine a person or devalue their work”. Ms Rumble repeated Dr Rees’ statement to the plaintiff of 2 February 2023: that if he did not make a formal complaint supported by evidence, to enable a meaningful investigation of his allegations against Ms Stokes to be conducted, then the matter would be treated as closed.

29. [53]

    The plaintiff did not lodge a formal complaint. He persisted in his misconceived allegations by responding to Ms Rumble the same day with the following claims, amongst others:

30. [54]

    On 8 February 2023, in another email to Ms Rumble, the plaintiff listed a number of aspects of his own activities with respect to which he claimed to have experienced discrimination, without specifying what steps had been taken against him that constituted the discrimination. Part of the email was as follows:

31. [55]

    The plaintiff’s persistent harassment of staff by making widespread defamatory criticisms, without formal complaint to enable those criticisms to be tested, led to a notification on 13 February 2023 from Dr Stacey Jenkins, the University’s Executive Director for Safety, Security and Wellbeing, that a suspension order would be made against him. The plaintiff was invited to make any written submission before the suspension came into force. On 16 February 2023 Ms Jenkins informed the plaintiff by email that the suspension order had taken effect, to which he replied the same day requesting “an extension of time” with detailed argument about what had taken place between himself, Ms Stokes and Dr Rees. Although the plaintiff was suspended from attending classes, he was permitted to continue his studies online.

32. [56]

    There followed a charge against the plaintiff of general misconduct, which resulted in his exclusion from enrolment for five years, as earlier referred to. A letter dated 14 March 2023 from Ms Michelle Jones, Secretary of the Student Misconduct Committee, notified the plaintiff of the Committee’s determination. The Committee’s reasons included the following:

33. [57]

    The reference to previous misconduct was to a charge that in 2017 the plaintiff had raised his voice, used expletives and slammed his hand on the table in the course of heated discussion during a Students Representative Council meeting. The charge was found proved. In February 2018, when an appeal by the plaintiff was heard by the General Misconduct Appeals Committee, the plaintiff was still known by his pre-transition female name. He was referred to by that name in the Appeals Committee’s record of proceedings in 2018. By letter of 6 March 2018 the plaintiff was notified that the Committee had denied his appeal and had upheld the penalty imposed, which was a reprimand. The notification continued as follows:

34. [58]

    In 2023, after conclusion of the internal appeal from the decision excluding the plaintiff for five years, the plaintiff was issued with a Trespass and Exclusion Notice by the University’s Chief Security Officer. He was thereby prohibited from entering the School of Theology’s teaching sites.

The complaint to the President

1. [59]

   The plaintiff’s complaint to the President of the Anti-Discrimination Board was lodged on 21 June 2023, alleging discrimination, vilification and victimisation. The following is the text of the complaint, which I have divided into separate numbered points for ease of reference:

2. [60]

   Those particulars of complaint may be contrasted with the summary of communications and events given earlier in these reasons. The actual communications and events are beyond contest by the plaintiff. They are documented in the very records that he provided to the President and again to the Tribunal and the Court. The refutation of everything that the plaintiff complained of to the President is as follows, using the same numbering as adopted above:

3. [61]

   Thus, the communications and events of which the plaintiff complained to the President were shown by the documents that he relied upon not to have taken place as he described them. Further, in the plaintiff’s evidence to the President and to the Tribunal and to this Court, there is no trace of proof that anything that did occur between the University and the plaintiff resulted from or involved discrimination or vilification on the basis of his transgender status or autism. There is no evidence that he was in any way victimised by reason of having made complaint about discrimination or vilification.

4. [62]

   The reasons given by the President for her conclusion of 26 February 2024 that the plaintiff’s complaint was “lacking in substance” were as follows:

5. [63]

   The second and third points refer to a grievance that the plaintiff has expressed in his emails with the University and in his representations to the President, although not in his filed complaint under the Anti-Discrimination Act. The grievance is that that the University’s records from the time of his original enrolment in 2014 identify him as female, with a feminine name. Those records have not been retrospectively altered by the University following his gender transition.

6. [64]

   As earlier mentioned, the documents that the plaintiff has tendered to the Tribunal and to the Court are what the President received in support of the plaintiff’s complaint of discrimination. Applying the relevant provisions of the Act, as referred to at [66]-[69] below, to the facts disclosed by those documents, the President’s conclusion that the complaint was “lacking in substance” was inevitable.

The plaintiff’s grounds of review

1. [65]

   At the hearing of the Notices of Motion and of the proposed Amended Summons, the plaintiff relied upon his affidavit sworn 17 March 2025 as a submission. It purported to identify “104 errors of law in the […] NCAT decision under review”. The 104 errors corresponded with the 104 paragraphs of the Tribunal’s reasons. In many of those paragraphs the Tribunal merely recounted the contents of emails and other documents that the plaintiff had tendered and that etablished uncontested facts. The plaintiff’s submissions in this Court did not identify any paragraph containing a finding of fact that was properly amenable to judicial review, having regard to the principles noted at [20] above.

2. [66]

   Numerous paragraphs of the reasons were taken up with the quotation of relevant sections of the Anti-Discrimination Act and analysis of what those sections require to be proved in order to establish each of the categories of wrong that the plaintiff alleged in his complaint to the President. With respect to Pt 4A of the Act, entitled “Discrimination on the ground of disability”, the Senior Member quoted s 49B and analysed the difference between direct and indirect discrimination, in pars (a) and (b) respectively of s 49B(1). Section 49L(2), by which it is made unlawful for an educational authority to discriminate on the ground of disability, was considered, together with the statutory concept of unjustifiable hardship (in s 49C) as a circumstance excusing such discrimination.

3. [67]

   The Tribunal’s reasons contain extracts from Pt 3A entitled “Discrimination on transgender grounds”, including s 38B in which the Act specifies what constitutes that form of discrimination. The reasons contain extracts from and analysis of s 38K, which prescribes the circumstances that make it unlawful for an educational authority to discriminate against a person on transgender grounds.

4. [68]

   The Senior Member cited authorities that establish the onus of proof born by a complainant to prove that he or she was treated less favourably “on the grounds of” or “because of” or “due [at least in part] to” disability or transgender status.

5. [69]

   Part 5 of the Act proscribes some forms of conduct in addition to discrimination. Notably, s 50 prohibits victimisation by subjecting a person to any “detriment” on the ground that the person victimised has, amongst other things, alleged that the person carrying out the victimisation has contravened the Act. The Senior Member quoted that section and analysed the elements required to be proved. Cases were cited in which the concept of “detriment” in s 50 has been expounded and in which it has been held that the words “on the ground that” require a direct causal link between the relevant act of victimisation and the reasons for that act.

6. [70]

   The plaintiff submitted that each one of the paragraphs in which the Senior Member undertook the above citation and analysis of the law, from [16] to [42] of the reasons, gave rise to a separate ground of error. He did not specify any mis-quotation of the statute or of the cases, nor did he particularise any respect in which the Senior Member had misunderstood the sections or the precedents. A cavalier, indiscriminate submission of that nature did not deserve close consideration. However, making due allowance for the plaintiff’s position as an unrepresented litigant, I have reviewed carefully the law quoted by the Tribunal. I can find no error in the impugned paragraphs of the reasons.

7. [71]

   A further ground of review propounded by the plaintiff is that the Tribunal Member failed to act upon his evidence “at its highest”. The testimonial evidence in the case was minimal and not significant. The only difference between the plaintiff and any other witness concerned the terms of his conversation with Ms Stokes on 9 January 2023 (see [35]-[36] above). That difference was immaterial, for reasons already given. What the plaintiff refers to in support of this ground is the Senior Member’s refusal to accept his bald assertions that actions contrary to his wishes were undertaken “on the ground of” discrimination against his disability and/or transgender status. Those assertions were no more than self-serving speculative opinions from the plaintiff. The Senior Member was right to discount them. In his dealings with the University up to May 2023 and in the subsequent complaint and legal proceedings, the plaintiff has routinely characterised all conduct that falls short of his wishes as discriminatory on the grounds of his autism and transgender status.

8. [72]

   The plaintiff submitted that the Tribunal Member failed to tell him the proceeding before her was a leave application. The transcript of proceedings in the Tribunal shows that that was made clear to the plaintiff on more than one occasion. He was also aware of the requirement for leave when the President notified him that his complaint was declined: see [12] above.

9. [73]

   A further contention by the plaintiff was that the Senior Member had undertaken that she would receive oral evidence from him. That, also is refuted by reference to the record of proceedings in the Tribunal. The plaintiff was informed that he could give evidence either orally or by written statement and he adopted the latter means.

Conclusion

1. [74]

   The documents tendered by the plaintiff include an autobiographical article. From that it is evident that he suffered a great deal of adversity in his early home life and in foster homes and institutional care. The plaintiff’s autism and change of gender have added to his difficulties. The plaintiff is deserving of a great deal of sympathy for the personal hardships he has had to bear.

2. [75]

   The University’s communications with the plaintiff have at all times exhibited patience, respect and a conscientious endeavour to make allowances. Dr Rees’ emails, particularly, are not merely administrative notifications on behalf of the faculty. They are written with warmth, care and individual consideration. The University clearly endeavoured to provide a nurturing and safe environment for the plaintiff’s learning experience, recognising the personal challenges he faces.

3. [76]

   Sadly, the plaintiff’s interactions with the University deteriorated into irrationality and embitterment on his part. In addition to finding no fault in the Tribunal’s disposition of the leave application, I am unable to discern anything in the conduct of the University that could explain the plaintiff’s apparent fixation upon the belief that he has been discriminated against in contravention of the statute.