CITATION: Harding -v- Vice Chancellor, University of New South Wales [2003] NSWADT 74 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Kathleen Harding RESPONDENT Vice Chancellor, University of New South Wales FILE NUMBER: 021095 HEARING DATES: 12/03/2003, 13/03/2003 SUBMISSIONS CLOSED: 03/13/2003 DATE OF DECISION: 04/15/2003 BEFORE: Hennessy N - Magistrate (Deputy President); McDonald O - Member; Weule B - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Harding -v- Vice Chancellor, University of New South Wales [2001] NSWADT 205 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Crewdson -v- Niland & Ors (EOD) [2002] NSWADTAP 5 Harding v University of New South Wales [2002] NSWC 325 Armour v Bate [1891] 2 QB 223 Re Orrell Colliery & Fire Bricks Co (1879) 12 ChD 681 Re South American & Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 Crotty v Clarke [1895] 22 VLR 594 CASES CITED: Kok Koong v Leong Cheong Kweng Mines [1964] AC 993 Blair v Curran (1939) 62 CLR 464 Harding -v- Vice Chancellor, University of New South Wales [2001] NSWADT 205 Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60 Langley v Niland & Anor: [1981] 2 NSWLR 104 at 107; Reyes-Gonzales v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Karekar v TAFE Commission of NSW [2000] NSWADT 187 General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales (1999) NSWADT 31 APPLICANT REPRESENTATION: No appearance RESPONDENT J Oakley, barrister ORDERS: 1. Complaint dismissed; 2. Complainant to pay the respondent's costs as agreed. If the parties are unable to agree on the amount of costs, it is to be determined by a costs assessor in accordance with the Legal Profession Act 1987. Introduction 1 These reasons deal with an application by the Vice Chancellor University of Sydney, (the respondent) to dismiss a complaint of discrimination under the Anti-Discrimination Act 1977 (AD Act) made by Ms Harding (the complainant). The application for dismissal was made under s 111 of the AD Act. That provision, so far as is relevant to these proceedings, states that: (1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. . . . (2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. (3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997. 2 The application for dismissal is made on two grounds. The respondent's primary submission is that the complaint is "lacking in substance" and should be dismissed under s 111(1). Alternatively the respondent submitted that the complaint should be dismissed for "any other reason" under s 111(1) that reason being the applicants failure to appear at the hearing. The respondent is also seeking an order for costs under s 111(2) of the AD Act. 3 Although the application for dismissal for failing to appear was not the respondent's primary application, we deal with it first in these reasons because it arises prior to the consideration of the merits or substance of the complaint. Referral of the complaint to the Tribunal 4 The complaint alleges discrimination on the grounds of disability, age and sex as well as victimisation in relation to the respondent's rejection of her application for admission to the Bachelor of Medicine/Bachelor of Surgery course in 2001. The President of the Anti-Discrimination Board (ADB) referred the complaint to the Tribunal on 19 August 2002, having declined it as "lacking in substance" under s 90(1) of the AD Act. 5 Three weeks previously, on 25 July 2002, the President of the ADB had referred another complaint by Ms Harding to the Tribunal (Matter No 021086). That complaint alleged that the respondent had discriminated against her on the grounds of disability, age and sex in education and victimised her in relation to its refusal to enrol her in the Bachelor of Medicine/Bachelor of Surgery course for 2000. The Tribunal dealt with both complaints together at a case conference and identical directions were made in relation to each complaint, except that the first complaint (No 021086) was listed for hearing on 10 and 11 March 2003 and the present complaint was listed for hearing on 12 and 13 March 2003. Background to the complaint 6 There has been a significant amount of litigation over a number of years between Ms Harding and the respondent in the Supreme Court and in this Tribunal. In 1983 the complainant enrolled in the Bachelor of Medicine and Bachelor of Surgery course. At that time the complainant was 42 years old and had obtained a sufficiently high mark in the 1982 Higher School Certificate to obtain admission to the medical course. The complainant discontinued her studies for various reasons in 1983 and 1984. She is recorded as failing all subjects in the course in 1986 and as failing two out of four subjects in 1988. The complainant says that she had a "thyroid crisis" in October 1986 which meant that she was unable to complete the year and sit for the final examinations. 7 In January 1989 the complainant lodged an application for special permission to re-enrol for that year. The application was rejected and the complainant was excluded from re-enrolling for two years. The Appeal Committee confirmed the decision to exclude the complainant for two years and decided that she would have to compete for re-enrolment in the future. 8 The complainant appealed to the Supreme Court, and ultimately to the Court of Appeal, against the Appeal Committee's decision. The Court of Appeal concluded that the Appeal Committee was improperly constituted when it heard the complainant's appeal and that its decision was invalid. However, no relief was granted because there was no utility in doing so. 9 The applicant also lodged complaints with the Anti-Discrimination Board in relation to her treatment by the respondent in 1989 and 1998. In Harding -v- Vice Chancellor, University of New South Wales [2001] NSWADT 205 the Tribunal dismissed the following complaints of discrimination by Ms Harding: (1) On the ground of her physical and intellectual impairment, the respondent unlawfully discriminated against the complainant as it failed in 1989 to grant her application to show cause why she should not be excluded from the second year of the medical course at the University of NSW in 1989 and that the University determined that the complainant be excluded from the medical course at the University for 2 years with re-admission subject to re-competing for a place after that period. (2) A complaint that on the grounds of her physical and intellectual impairment, the complainant was unlawfully discriminated against by the respondent for its failure to grant to her special consideration in relation to her performance in bio-chemistry in 1998; and 10 Ms Harding appealed to the Appeal Panel of this Tribunal against the Tribunal's dismissal of her complaints. In Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 the Appeal Panel dismissed the appeal. We understand that there is an appeal pending to the Supreme Court in relation to this decision. 11 The Court of Appeal handed down a further decision involving Ms Harding and the respondent on 25 September 2002. (Harding v University of New South Wales [2002] NSWCA 325) Ms Harding refers to that decision in her affidavit in these proceedings, saying that the Court of Appeal "has confirmed allowance must be made for my medical condition and for the invalid Appeal Committee decision of 1989." In that case the Court of Appeal decided that the respondent had not complied with an undertaking given to Ms Harding as to the manner in which they would assess her application for admission in 2002. However, the Court of Appeal did not grant Ms Harding any remedy in relation to this finding. 12 The Supreme Court proceedings do not raise any question of discrimination under the AD Act, so they are not directly relevant to the Tribunal's determination of this matter. Failure to appear at the hearing History of the proceedings 13 The history of the complaint presently before the Tribunal is as follows: 19 August 2002: Complaint of sex, disability and age discrimination and a complaint of victimisation referred from the President of the ADB to the Tribunal; 24 September 2002: Both parties attended a case conference in which the following directions were made: Complainant to file Points of Claim and any witness statements by 22 November 2002; Respondent to file Points of Defence and any witness statements by 20 December 2002; and Matter to be set down for hearing on 12 and 13 March 2003. 22 November 2002: Complainant filed Points of Claim and a statement; 20 December 2002: Respondent wrote to the Tribunal and the complainant seeking an extension of time to 21 January 2003 to file and serve documents; 20 December 2002: a staff member of the Tribunal spoke to the respondent's representative advising him to contact the complainant to obtain consent to the extension of time and if consent was not forthcoming, request that the matter be re-listed for a further case conference; 6 January 2003: complainant agrees to extension of time to 21 January 2003; 15 January 2003: Tribunal writes to parties approving extension of time to 21 January 2003 to file material in reply; 10 February 2003: respondent files and serves Points of Defence and witness statements; 18 February 2003: letter from complainant requesting that the hearing dates be vacated and setting out reasons for that request; 19 February 2003: letter from Tribunal to the parties advising that hearing dates will not be vacated and providing reasons; 2 March 2003: letter from complainant to the Tribunal and the respondent in relation to vacation of hearing dates stating that she will not be attending on the dates set down for hearing, that she has been reinstated to the course and that she is attempting to settle the matter with the respondent; 3 March 2003: letter from Tribunal to parties advising that if complainant does not appear, orders may be made in her absence; 5 March 2003: letter from respondent to Tribunal advising of letter sent to complainant indicating that they would be applying for the matter to be dismissed under s 111 of the AD Act and an order for costs if the complainant did not appear at the hearing; and affidavit from respondent's solicitor, William George Murphy, dated 10 March 2003, which states that the complainant told him on 7 March 2003 that she would not be appearing at the hearing and in which he advised her that if she does not appear he will be seeking orders striking out the proceedings. Reasons for non-attendance 14 The complainant did not appear at the hearing on 12 March 2003. The uncontroverted evidence is that Ms Harding made a deliberate decision not to appear, presumably for the reasons set out in her correspondence with the Tribunal. Those reasons, in summary, were that: The respondent was allowed an extension of time to file its documents but it did not lodge its material by that time and sought no further extension of time; The two days allocated for the hearing will not be sufficient to dispose of the matter; Many of the respondent's submissions are not relevant; The complainant has not had time to apply her mind adequately to the respondent's material and formulate a reply; and The hearing of the second matter cannot justly proceed before the decision on the first has been handed down. 15 The Tribunal responded to these reasons by advising that since Ms Harding had four weeks to consider the respondent's reply and statements, there had been no denial of natural justice. The Tribunal also advised that if the time for hearing the matters was insufficient, then further hearing dates could be arranged. The hearing dates were not vacated. Statutory provisions 16 Section 73(4)(c) of the ADT Act states that "The Tribunal is to take such measures as are reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings." Section 73(5) states that "The Tribunal is to act as quickly as is practicable." 17 The Tribunal's Practice Note on vacation of hearing dates states, in part, that: A hearing date will only be changed where it can be shown to the satisfaction of the Presiding Member that circumstances have arisen which are beyond the control of the parties or their representatives. Previous cases 18 In Crewdson -v- Niland & Ors (EOD) [2002] NSWADTAP 5 the Appeal Panel upheld a decision of the Tribunal to dismiss a complaint for want of prosecution under s 111(1). In the course of its reasoning, at [33] to [37] the Appeal Panel stated that: It is against this background that the construction of the phrase "for any other reason the complaint should not be entertained" falls to be determined. It was under this limb of s 111(1) that the Tribunal dismissed the Appellant's complaint (para 40). Whilst the Tribunal had regard to the ejusdem generis rule of statutory construction, it concluded that "any other reason" was sufficiently broad to allow for a want of prosecution. The ejusdem generis rule (that general matters, which follow a reference to specific matters, are limited to things of the like kind to the specific matters) is in fact merely a subsidiary aid to the construction of terms, once it has been determined that general words are to be limited in their operation by specific words. That determination is made by reference to the context and subject matter of the legislation: see Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368; Gas & Fuel Corp (Vic) v Comptroller of Stamps [1964] VR 617. Whilst it is beyond doubt that the AD Act is remedial legislation and should thus be construed beneficially, it is not the case that every provision within the Act falls to be construed that way. As was observed by the Federal Court in Rose v Secretary, Department of Social Security (1990) 92 ALR 521 at 524, such a statute "calls for no narrow or pedantic construction; but, [where] it contains both enabling and excepting provisions [the latter] do not therefore necessarily require beneficial interpretation. It depends on the particular statutory provision and an analysis of its language and purpose." The language and purpose of s 111(1) suggests that a beneficial construction (that is, one which favours the Appellant as the person claiming victimisation) is not called for. Its purpose is to allow the Tribunal in certain circumstances and in the exercise of its discretion to dismiss a complaint at any time in the course of proceedings. There is nothing on the face of the provision which warrants limiting "any other reason" to a genus of frivolous or vexatious or lacking in substance or misconceived. Given that these bases for dismissal include both objective and subjective features of the complaint itself, the phrase "any other reason" must refer to something other than the content or character of the complaint. In other words, it must be capable of encompassing some aspect of the proceedings themselves, such as a failure to diligently prosecute a complaint. The legislation thereby recognises that a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet if the complainant has demonstrated either an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed. The Panel has not overlooked the obligation on the Tribunal to exercise the power to summarily dismiss a complaint with caution. We are not persuaded that the Tribunal disregarded the rights of the Appellant or failed to have regard to the exceptional nature of the power, or erred in the exercise of the discretion to exercise the power. The power exists in almost every jurisdiction and has been the subject of comment by the President of the NSW Court of Appeal in Fairey v Fairey (No 2) [2000] NSWCA 173 :- "The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants and preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case." Tribunal's reasoning and conclusion 19 We agree with the observations of the Appeal Panel in Crewdson, and adopt them in relation to the present proceedings. The phrase "for any other reason" can include the failure of the applicant to appear. 20 The position at common law is that if the defendant appears at the trial and the plaintiff is absent, the defendant is entitled to judgment dismissing the plaintiff's claim. The effect of the judgment is the same as if it were a judgment dismissing the action on the merits: Armour v Bate [1891] 2 QB 223; Re Orrell Colliery & Fire Bricks Co (1879) 12 ChD 681 at 682; Re South American & Mexican Co; Ex parte Bank of England [1895] 1 Ch 37 at 45; Crotty v Clarke [1895] 22 VLR 594 at 602; Kok Koong v Leong Cheong Kweng Mines [1964] AC 993. 21 In this case, all the documentary evidence had been filed and served when the complainant requested that the hearing dates be vacated. There was nothing further that either party had to do to comply with the Tribunal's directions. The complainant had four weeks to consider the respondent's case and formulate any response she wished to make. In our view that time was more than adequate. 22 The complainant did not provide a substantive reason for her non-attendance, other than that she has not had time to apply her mind adequately to the respondent's material and formulate a reply. Given that she had a month to do so, that reason is not persuasive. In our view the complainant made a deliberate decision not to attend without any justifiable reason for doing so. In those circumstances the complaint is dismissed, pursuant to s 111(1) for "any other reason". Lacking in substance Introduction 23 The respondent's primary submission was that the complaint should be dismissed as lacking in substance. As an alternative to dismissing the complaint because of the non-appearance of the complainant, we consider below whether the complaint should be dismissed as "lacking in substance." Determining whether complaint is lacking in substance 24 We have applied the following principles in determining whether the complaint lacks substance: The respondent to the complaint bears the onus of showing that the complaint should be dismissed; A complaint will be lacking in substance when there exists no factual basis for the allegations, or the allegations lack merit: see Langley v Niland & Anor : [1981] 2 NSWLR 104 at 107; Reyes-Gonzales v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) at 6; a complaint lacks substance if it contains "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.A.; "If the Tribunal can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated": Professor Bernard Cairns, Australian Civil Procedure , 4th ed, Sydney: LBC Information Services, 1996 at page 242; the Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action: Karekar v TAFE Commission of NSW [2000] NSWADT 187 at [36]. See also General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 ; Tannock v State of New South Wales (1999) NSWADT 31 (11 May 1999). Legislative provisions 25 The following legislative provisions are relevant to the complaints. For each ground (disability, age and sex) the definition of discrimination is set out followed by the substantive provision relating to discrimination by an educational authority against prospective students. The complainant also relied on a breach of the victimisation provision. Section 49B What constitutes discrimination on the ground of disability (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 a 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) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (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. Section 49L Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of disability: (a) by refusing or failing to accept his or her application for admission as a student, or (b) in the terms on which it is prepared to admit him or her as a student. (2) 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. (3) Nothing in this section applies to or in respect of: (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant. (4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority. (5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability 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. Section 49ZYA What constitutes discrimination on the ground of age (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, 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 a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group. (3) In this section: "associate" of a person means any person with whom he or she associates, whether socially or in business or commerce, or otherwise. "relative" of a person means: (a) any person to whom the person is related by blood, marriage, affinity or adoption, or (b) any person who is wholly or mainly dependent on, or a member of the household of, the person. Section 49ZYL Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of age: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of age: (a) by denying or limiting access to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of: (a) the admission of, or the refusal of admission to, a person to a school, college, university or other institution if the level of education or training sought by the person is provided only for students above a particular age, or (b) a private educational authority, or (c) an education authority prescribed by the regulations in relation to such circumstances (if any) as may be so prescribed. (4) Nothing in this section applies to or in respect of a refusal by an educational authority to enrol at a government school or registered non-government school a child who is not of or above the age of 6 years. In this subsection, "registered non-government school" has the same meaning as in the Education Reform Act 1990 . (5) Nothing in this section applies to or in respect of benefits, including concessions, provided in good faith to a student by reason of his or her age. Section 24 What constitutes discrimination on the ground of sex (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex 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 of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, 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. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs: (a) are a woman who is pregnant and a man, or (b) are not of the same marital status. Section 31A Education (1) It is unlawful for an educational authority to discriminate against a person on the ground of sex: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of sex: (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. (3) Nothing in this section applies to or in respect of: (a) a private educational authority, or (b) a refusal or failure to accept a person's application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students of the opposite sex to the sex of the applicant. (4) The admission into any such school, college, university or other institution of a transgender person as referred to in Part 3A who identifies with the sex of persons for whom the school, college, university or other institution is conducted does not, for the purposes of subsection (3) (b), affect its status as a school, college, university or other institution conducted solely for students of the same sex. 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. Points of Claim 26 The complainant's Points of Claim were as follows: Failure to accept the effect of my disability on my academic record. Failure to grant special consideration. Method of assessing my application to re-commence medical study inappropriately applied and in a number of ways. Failure to allow for my invalid exclusion in 1989. Imposing an unnecessarily restrictive basis for academic rehabilitation and that rehabilitation being required because of failure to adjust for UNSW's previous wrongful actions. Failure to allow for the difficulties experienced by the complainant as a result of late advices and enrolment in a restricted course for a academic rehabilitation and years away from appropriate related study. Restricted consideration of application. Failure to allow for "mark downs" and compelling reasons for not completing a full year in 2000. Failure to offer adequate support for the imposed form of rehabilitation. Requiring rehabilitation. Misrepresenting my medical condition. Failure to accept application and restricting terms. Failure to acknowledge sex discrimination as thyroid problems are more prevalent in the female population. Evidence 27 The evidence before the Tribunal was the President's Report, a statement from the complainant dated 21 November 2002 and the affidavit of William Murphy dated 10 March 2003. 28 In her statement, the complainant says that in late 2000 she applied through the Universities Admissions Centre (UAC) for re-admission as a medical student to the faculty of Medicine for the year 2001. On 17 November 2000 she submitted an application for Special Consideration in accordance with the respondent's requirements for students whose academic performance had been affected by illness or any other matter. In January 2001, the complainant was advised by UAC that her application had been unsuccessful. 29 Much of the remainder of the affidavit is not part of the complaint as referred by the President, out of time, not relevant or relates to issues which have already been determined by the Tribunal. Not part of the complaint 30 Section 96 of the AD Act states that: "The Tribunal shall hold an inquiry into each complaint or matter referred to it under section 91 (2), 94 (1) or 95." Circumstances which were not part of the complaint as referred by the President, cannot be considered as part of the complaint before the Tribunal. Paragraphs 14 and 20 of the complainant's statement relating to her experiences during the first weeks of the first semester of 2000 when she was enrolled in various science subjects, are not the subject of any complaint to the President of the ADB. Relevance 31 The complainant refers to a number of circumstances, but does not explain their significance in relation to her complaint of discrimination or victimisation. 32 In paragraph 9, of her statement, the complainant says that "UNSW is still denying the effects of my medical condition on my academic performance and I am not receiving the consideration due because of that condition and this has now been established in the Supreme Court of Appeal (2002)." We assume that the complainant is referring to the Court of Appeal decision of Harding v University of New South Wales [2002] NSWC 325 (25 September 2002). The complainant did not identify precisely what the Court of Appeal has established or point to any passage in this decision in support of her contention. We are unable to glean from the information provided, the point that she is attempting to make. 33 The complainant asserts at paragraph 10, that the respondent should be assessing her applications as a non-excluded student "by virtue of the invalid and void decision of 1989 of its 'Appeal Committee'." The undertaking given by the respondent related to her application for admission in 2002, not to her application in 2001. The complainant refers to the Court of Appeal decision again a paragraph 17. Those proceedings related to the breach of the respondent's undertaking, not to any allowance being made for the complainant's medical condition, per se. 34 Paragraph 11 of the complainant's statement appears to relate to submissions in previous proceedings before the Tribunal which are not relevant to the current proceedings. 35 Paragraph 12 of the complainant's statement asserts that the summary of the complaint by the President of the ADB is incorrect. The complainant then sets out her version of the factual circumstances in 1988 which are not relevant to these proceedings. 36 The file note referred to in paragraphs 15 and 16 relates to the complainant's application for admission in 2000, not to the application for admission that is the subject of these proceedings. 37 The "Glover letters" referred to in paragraph 19 were written some 14 years ago and there is no evidence that they were connected in any way with the decisions which are the subject of the present complaint. Issue estoppel 38 Any judicial determination of issues of fact or law disposes once and for all of that issue, so that it cannot be raised again between the same parties. (See Dixon J in Blair v Curran (1939) 62 CLR 464 at 531.) In paragraphs 6, 7 and 8 the complainant criticises previous findings of the Tribunal and the Appeal Panel. Those issues are subject to appeal in the Court of Appeal. As the respondent correctly points out, The Tribunal has already dealt with the complaints relating to the respondent's treatment of the complainant in 1989 and 1998 and found that the complaints were not substantiated. 39 The complainant's assertion at paragraph 21, that the respondent has not provided a plausible and non-discriminatory reason for why she was not offered a place in the year 2000, misunderstands the requirements of the AD Act. While the onus is on the respondent to establish that the complaint should be dismissed, that does not involve providing a plausible and non-discriminatory reason for not offering the complainant a place in the year 2000. 40 Having made these general observations about the complaints, each alleged breach of the Act will be dealt with in more detail below. Disability discrimination 41 In the complainant's letter to the President of the ADB, dated 11 September 2001, the complainant states that ". . . my application was refused, this is disability discrimination as no allowance was made for the unsuccessful tablet regime in 1988, for the compression in 1986." According to the President of the ADB in his summary of the complaint, "the references to the tablet regime and compression are references to the thyroid problems the complainant had for a number of years." The President went on to say that "It would appear that the complainant no longer has this problem, or if it exists it no longer causes her any difficulty as also in her letter of 11 September 2001, she states: . . . it clearly shows on my medical records . . . 'no need for thyroxine', and I have now been thyroid hormone replacement free for 5 years." 42 We agree with the President's assessment that the complainant is not alleging a current disability, but rather a disability "that a person had in the past" as provided by s 49A of the AD Act. 43 As far as the Tribunal is able to discern, the complainant appears to be alleging that in not admitting her in 2001, the respondent is failing to take into account her past disability, for which she applied for special consideration in 1988 and 1989. According to the complainant, that disability affected her academic performance. 44 The Tribunal decided (and the Appeal Panel confirmed) that no discrimination on the ground of disability occurred in relation to the 1989 complaint. Consequently any submission that a decision in 2001 is in breach of the AD Act because it perpetuates previously discriminatory conduct, must be rejected. Since that is apparently the central basis for the complaint on the ground of disability, that aspect of the complaint lacks substance. There is no other evidence that the respondent's decision not to accept the complainant's application for admission to the Bachelor of Medicine/Bachelor of Surgery course for 2001 was made "on the ground of" her past (or present) disability. Age discrimination 45 The only allegation put forward by the complainant in support of this ground of discrimination is a letter written by Professor Glover, the Dean of the Faculty in 1988. That letter was not in evidence. Professor Glover's correspondence, in so far as it related to the complaint of disability discrimination, was referred to in the Tribunal's previous decision, Harding -v- Vice Chancellor, University of New South Wales [2001] NSWADT 205 at [114]. The Tribunal considers that those letters by Professor Glover illustrate that he, throughout the relevant period for the purposes of her complaints, was the Dean of the Faculty and held an adverse attitude to the Applicant's circumstances and was not sympathetic to her claims of adverse impacts of her medical condition on her ability to pass the examinations. The evidence before the Tribunal, however, falls short of satisfying the Tribunal that the opinion held by the Dean of the Faculty of Medicine had a material influence on the decisions taken adversely to the Applicant by the Assessment Committee of the faculty when it dealt with her application for special consideration in December 1988, or on the decision of the Appeal Committee which considered her appeal against her exclusion from the medical course in 1989 and 1990. Professor Glover was a member of the Assessment Committee of the Faculty which dealt with her application for special consideration although he was only one of a number of members of that Committee. Professor Glover was not a member of the Appeal Committee that considered the Applicant's appeal in 1989. 46 As the complainant dealt with by the Tribunal in this decision did not involve an allegation of age discrimination, that aspect of Professor Glover's letter was not mentioned. In her statement, the complainant says that Professor Glover's letters were written in 1988 and in 1989. She alleges that the Tribunal's summary of Professor Glover's opinion is incorrect as is Professor Glover's opinion. Ms Harding stated that Professor Glover also referred to my age and ability to repay the government. Ms Harding has failed to make any connection whatsoever between a reference to age in a letter written some 14 years ago and the decision of the respondent not to accept the complainant's application for admission to the Bachelor of Medicine/Bachelor of Surgery course for 2001. That aspect of the complaint lacks substance. Sex discrimination 47 The complainant characterised her complaint as one of indirect gender discrimination. The basis for that contention is that "thyroid conditions are more prevalent in the female population than the male population." Even if this evidence is accepted on its face, we have found that the complaint on the ground of the complainant's past disability (a thyroid condition) lacks substance. Consequently, a complaint of sex discrimination which depends on a finding of disability discrimination, lacks substance. Victimisation 48 The complaint of victimisation is "on the basis of litigation existing between the parties as they have chosen to act in support of their previous wrongdoings." No particulars of the alleged breach were provided, apart from those in the statement relating to matter 021086. In that statement to the Tribunal, the complainant says that: The University complained that they were not notified of my complaint re 1988 until the year 2000, therefore Professor Dowton's record of a meeting with me in 1999 is incorrect. He said to me "you've come about the legal" I replied, "no, I've come about a new application", the only litigation he could have been referring to was with respect to the Supreme Court and this supports my view of victimisation, hence the re-written (typed) summary, quite obviously prepared in 2000 and not a true record although it is correct in certain respects. 49 The meeting with Professor Dowton occurred on 30 August 1999, that is more than six months prior to 2 May 2000, the date on which the complainant lodged her complaint with the ADB. A complaint cannot include acts which occurred more than 6 months before the date of the complaint, unless the President accepts the complaint out of time under s 88(4) of the AD Act. Consequently any alleged act of victimisation which occurred in August 1999 cannot form part of the complaint. Even if it is part of the complaint, the complainant provided no particulars as to how the allegations meet the requirements of s 50 of the AD Act. The complaint of victimisation lacks substance. 50 Each complaint is dismissed as lacking in substance. Costs 51 The respondent applied for an order for costs pursuant to s 111(2) of the AD Act. That provision gives the Tribunal a discretion to order the complainant to pay the costs of the inquiry, when the complaint is dismissed under s 111(1). The provision does not create a presumption in favour of a costs order. Each case must be considered on its merits. 52 In Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 the Appeal Panel considered the principles that should apply when considering whether to make a costs order under s 111(1). In that case limited costs were awarded against Mr Tu for failing to prosecute his complaint. The Appeal Panel found that Mr Tu had failed to co-operate with the Tribunal's directions and respond to them in a timely way. This failure on his part contributed significantly to the costs of the University. The Appeal Panel stated that: The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith; (at [42]) Where a matter is found to be 'misconceived' or 'lacking in substance' there is greater caution in making an adverse costs order. (at [43]);. 53 In Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 at [19] the Tribunal made the additional point that in cases where a complaint has been declined by the President of the Anti-Discrimination Board, and the complainant has exercised his/her right to have the case determined by the Tribunal, there may also be strong grounds for ordering costs against the unsuccessful complainant (see Crewdson v President, Anti-Discrimination Board [2000] NSWADT 60). 54 In this case, the President of the ADB declined the complaint as lacking in substance. We have decided that the complaint should be dismissed, not only because it lacks substance, but because of the complainant's failure to appear at the hearing. In Australian Civil Procedure, 5th edition, Lawbook Co 2002, at p 486, Cairns states that "A default judgment for the defendant on the plaintiff's failure to attend the trial usually orders the plaintiff to pay the costs of the proceeding." This comment is made in the context of a rule that costs generally follow the event. While this is not the costs rule under with this Tribunal generally operates, the complainant has deliberately chosen not to attend the hearing, having been advised by the respondent that an application for a costs order would be made. Ms Harding had the opportunity to withdraw her complaint. Instead she put the respondent to considerable unnecessary expense by simply not appearing at the hearing. In addition, the President of the Board and this Tribunal declined her complaint as lacking in substance. In our view, while not necessarily amounting to an abuse of process, these circumstances justify an order for costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.