Wecker v University of Technology, Sydney (EOD) [2007] NSWADTAP 15

Appeal Panel - Internal

CITATION: Wecker v University of Technology, Sydney (EOD) [2007] NSWADTAP 15

APPELLANT PARTIES: Paul Wecker RESPONDENT University of Technology, Sydney

FILE NUMBER: 069080

HEARING DATES: 14 March 2007

SUBMISSIONS CLOSED: 14 March 2007

DATE OF DECISION: 2 April 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; O'Sullivan M - Non Judicial Member

CATCHWORDS: fail to admit evidence - fail to apply principle correctly to the facts

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 051134

DATE OF DECISION UNDER APPEAL: 12/01/2006

Criminal Code (WA) LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

CASES CITED: R v Falconer (1990) 171 CLR 30 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25

APPELLANT In person REPRESENTATION: RESPONDENT J Oakley, counsel

ORDERS: 1. The decision of the Tribunal to dismiss the application is affirmed.; 2. The Respondent's application for costs is refused.

REASONS FOR DECISION Introduction 1 Mr Wecker was a graduate student at the University of Technology, Sydney (UTS). Following a dispute about his accommodation at a UTS owned residence, he said to a staff member either, "I could get you and your Manager killed" or "I have the power to kill you and your boss, it will be done". Following an investigation, UTS suspended Mr Wecker for 12 months from 8 August 2005. Mr Wecker complained to the President of the Anti-Discrimination Board that he had been discriminated against on the ground that UTS employees thought he had a mental illness. He said that if those making the decisions had not thought he had a mental illness, they would not have imposed such a harsh penalty. The complaint was referred to the Tribunal. 2 Under the Anti-Discrimination Act 1977 (AD Act), discrimination on the ground of disability includes a disability "that a person is thought to have (whether or not the person in fact has the disability) ...": s 49A(b). Mr Wecker said that UTS had discriminated against him contrary to s 49L(2)(c) of the AD Act, by subjecting him to a detriment. The Tribunal found that none of the employees of UTS involved in making decisions about the disciplinary action to be taken against Mr Wecker thought he had a mental illness. The Tribunal dismissed Mr Wecker's complaint on that basis. Alternatively, the Tribunal decided that, if the employees did think that Mr Wecker had a mental illness, they had not treated him less favourably than they treated or would have treated a person who they did not think had a mental illness. 3 Mr Wecker has appealed against the Tribunal's decision on a question of law: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2)(a). He has not requested permission for the appeal to be extended to the merits of the Tribunal's decision: ADT Act, s 113(2)(b). Ground of Appeal 4 Mr Wecker has appealed on three grounds: 1. that the Tribunal failed to admit into evidence the President's Summary of Complaint; 2. that the Tribunal failed to apply the High Court's decision in R v Falconer; and 3. that the Tribunal erred in relation to its findings about the differences in penalties imposed by UTS. Admissibility of evidence 5 Mr Wecker's first ground of appeal relates to the report prepared by the President of the Anti-Discrimination Board when he referred the complaint to the Tribunal. Under s 94A(2) of the AD Act a complaint that the President refers to the Tribunal is to be accompanied by "a report relating to any investigation by the President of the complaint". Attached to the report is the correspondence between the President and the parties and any documents provided by the parties as a result of the President's investigation. In this case the Tribunal admitted into evidence the report together with all the attachments to the report and marked that bundle of documents as Exhibit A. 6 Mr Wecker's first ground of appeal arises from a misunderstanding on his part as to what the Tribunal said at [33] of the decision. The Tribunal said: Mr Wecker did not provide any relevant evidence over and above that which was contained in the report of the ADB, exhibit A. 7 Mr Wecker interpreted this sentence to mean that the Tribunal did not admit into evidence and take into account all the material in the President's Report. That is not correct. The Tribunal admitted the President's Report, including all the attachments to the Report, as Exhibit A in the proceedings. Consequently, Mr Wecker's first ground of appeal fails. Application of decision in R v Falconer 8 Mr Wecker's second ground of appeal is that the Tribunal failed to follow the doctrine of precedence because it did not apply the High Court's decision in R v Falconer (1990) 171 CLR 30. Among other things, that decision interpreted s 23 of the Criminal Code (WA) which provides that "... a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will ..." The High Court decided in that case that psychological trauma resulting in a dissociative state may amount to non-insane automatism for the purpose of s 23 of the Criminal Code (WA). The short answer to Mr Wecker's ground of appeal is that the meaning of s 23 of the Criminal Code (WA) was not in issue in these proceedings, so the Tribunal did not err by failing to apply the High Court's reasoning to the facts of this case. 9 Looking beyond the doctrine of precedence, what Mr Wecker appears to be concerned about is that the Tribunal rejected his submission that he was in a state of shock and that the threats to kill UTS staff were not premeditated. The Tribunal made the following comment in response to this submission at [34]: Further, it was pointed out to Mr Wecker that the defence of automatism was not one which could be upheld merely by an assertion that a person was acting in that state; it required medical evidence to be provided. No such evidence was provided. 10 In his submissions to the Appeal Panel, Mr Wecker included medical definitions of shock, which he says he assumed the Tribunal had understood when he described his mental state at the time the threats were made. The Tribunal's comment about lack of medical evidence does not relate to the definition of "shock". What the Tribunal meant by its comment at [34] was that there was no medical evidence from a qualified medical practitioner expressing an opinion about Mr Wecker's mental state at the time the threats were made. In the absence of such evidence, the Tribunal decided that Mr Wecker's conduct could not be discounted or excused because he was in a state of automatism. Difference between penalties imposed 11 Conduct will not amount to unlawful discrimination unless, among other things, there has been "differential treatment". Differential treatment is treatment that is less favourable 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 ...: AD Act, s 49B(1)(a). The third ground of appeal is that the Tribunal wrongly decided that a 12 month suspension was not out of proportion with the UTS's Rules, Guidelines or Precedents and that therefore Mr Wecker had not been subjected to differential treatment. 12 This ground of appeal only arises if the Tribunal was wrong in its primary finding that none of the employees of UTS involved in making decisions about the disciplinary action, thought Mr Wecker had a mental illness. That finding means that Mr Wecker does not have a disability as defined by the AD Act, so any conduct could not have been "on the ground" of Mr Wecker's disability. As Mr Wecker did not appeal against the Tribunal's finding of fact on that point, the question of whether there has been any conduct amounting to differential treatment does not arise. 13 In addition, the Tribunal's finding that Mr Wecker had not been subjected to differential treatment was a finding of fact and Mr Wecker did not ask the Appeal Panel to extend the appeal to the merits of the Tribunal's finding on that point. Contrary to Mr Wecker's submission, the way UTS applied its own Rules and Guidelines to his situation was not a question of law for the Tribunal. The question of law, if any, was whether UTS had breached s 49L of the AD Act, not whether it had correctly applied its own Rules and Guidelines to the issue of the penalty that Mr Wecker should receive. 14 Even if Mr Wecker had requested leave to appeal against the Tribunal's findings of fact about differential treatment, his submissions on this ground of appeal are based on a misunderstanding of the status of UTS's Guidelines on Determining an Appropriate Penalty for Instances of Student Misconduct. Mr Wecker said that UTS applied their Guidelines incorrectly because they suspended him for 12 months when the Guidelines do not recommend suspension for that period of time for what he regards as a first minor instance of misconduct. Mr Wecker appeared not to appreciate that the Guidelines are not binding on UTS. Even if UTS did not apply the Guidelines, that would not necessarily mean that it had treated Mr Wecker less favourably than it would have treated a student whom it did not think had a disability. However, as we have said, this ground of appeal fails for other reasons. Costs 15 UTS applied for costs because it said Mr Wecker has continued to pursue a case that has all the hallmarks of being unmeritorious and doomed to fail. UTS also said that it had attended an interlocutory hearing and a first instance hearing, extending over two days, without applying for costs. 16 The same costs provisions apply on appeal as applied at first instance: Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 at [60]. Consequently, s 110 of the AD Act is the relevant costs provision. That provision states that "each party is to pay his or her own costs" except as provided by s 110(2). Section 110(2) states that: "[where the] Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit". 17 Success or failure on appeal is not a circumstance that, by itself, would generally justify making an order for costs. Something more is necessary. In this case, Mr Wecker was of the view that he had presented a flawless legal argument on appeal. Our findings demonstrate that we do not agree with that assessment, however Mr Wecker has neither legal qualifications nor, apparently, the means to engage a lawyer. He has not conducted the appeal in a manner that justifies an order for costs. Order 1. The decision of the Tribunal to dismiss the application is affirmed. 2. The Respondent's application for costs is refused.