Rochas v The University of Sydney [2004] NSWADT 14

CITATION: Rochas v The University of Sydney [2004] NSWADT 14 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Laslo Rochas RESPONDENT The University of Sydney FILE NUMBER: 031092 HEARING DATES: 10/12/2003 SUBMISSIONS CLOSED: 12/10/2003 DATE OF DECISION: 01/21/2004

BEFORE: Ireland G - Judicial Member; Nemeth de Bikal L - Member; Greenhill K - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 APPLICANT REPRESENTATION: In person RESPONDENT G Fredericks, solicitor ORDERS: 1 The Tribunal determines that the application under s 111(1) of the Act, made by the respondent, be not acceded to and be dismissed; 2 The Tribunal also determines that there be no order made for costs in relation to the respondent's application

Background 1 The applicant lodged a complaint under the Anti-Discrimination Act 1977 (the Act) with the Anti-Discrimination Board (the Board) on 4 November 2002. 2 After investigating the complaint, the Board declined to entertain the complaint. The Acting President of the Board, on the request of the applicant, referred the complaint to the Tribunal for its inquiry, under s 91(2) of the Act. 3 The complaint referred to a job application made by the applicant to the respondent on 16 May 2002. The applicant applied for the position of Student Adviser (Prospective and International) in the Faculty of Nursing. 4 In his complaint document, the applicant referred to 4 additional job applications which he made to the respondent University in August and September 2002. 5 The applicant was unsuccessful in each application. He complained that in each of the 5 positions he applied for, the successful applicant was a young female. The applicant is a male who was aged 52 in 2002. He alleged that for each job he was better qualified than the person who was appointed. He complained that in each of the 5 applications, he suffered unlawful discrimination on the grounds of sex (ss 24 and 25 of the Act) and on the ground of age (s 49ZYA and s 49ZYB of the Act.) Application under s 111(1) of the Act 6 The respondent has applied under this section for the complaint to be dismissed on the basis that the complaint is misconceived and is lacking in substance. 7 Section 111(1) states: 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. 8 The application under s 111(1) is made at a preliminary stage of the inquiry by the Tribunal. Two case conferences have been held to attempt to clarify the issues for determination at a hearing of the inquiry. These conferences have not been productive as the applicant is not represented and has no experience in the preparation or presentation of his case. As he acknowledged at the hearing of this application, he has not referred to the provisions of the Act and he does not understand the construction of the Act or the requirements of the sections of the Act which he has to establish in order to succeed in his complaint. 9 As a consequence of the applicant's difficulty in formally relating his complaint to the provisions of the Act, directions have not been made by the Tribunal at this stage, for the filing of points of claim or other supporting statements of witnesses. The only material exhibited before the Tribunal in this application is the report to the Tribunal by the Acting President of the Board dated 22 July 2003 which contains 4 tabulated documents arising out of the Board's investigation of the complaint. 10 The difficulty of the applicant in formally presenting his complaint to the Tribunal is a reason for the respondent making this application. The main reason for this application is the respondent's submission that no amount of time or assistance to the applicant will enable the applicant to substantiate his complaint that the respondent unlawfully discriminated against the applicant in any or all of the 5 job applications about which the applicant complains. The respondent submitted that the material in the Acting President's report demonstrates that in each job application the persons chosen for interview and the persons selected for the position were the most appropriate candidates and there is no real likelihood that the applicant can establish that those selections were made on the ground of the sex or age of the candidates or that the applicant was selected against because of his age or sex. Scope of the complaint 11 The absence of points of claim or other clarification by the applicant of the complaints as they relate to the provisions of the Act, gives rise to a difficulty for the Tribunal to determine the application by the respondent to dismiss the complaint at this stage in the inquiry. 12 The fact that the applicant has shown little or no capacity to properly formulate his complaint for the purposes of the inquiry, is itself a matter which could demonstrate a basis for dismissing the complaint under s 111(1) of the Act. Where, as in this case, the applicant is unrepresented the Tribunal considers it would not be justified in taking such a final step, particularly as there has been no direction given by the Tribunal requiring the applicant to file points of claim. 13 A number of issues have been identified which require to be clarified. These issues include: (a) Whether the complaints encompass, in addition to the circumstances relating to the job application made by the applicant on 16 May 2002, the job applications made subsequently by the applicant to the respondent and identified by the applicant in his original complaint to the Board as 'job nos. at B32/002894, B32/002896, B32/002813, A34/002948'. The respondent submitted that the original complaint was made in respect of a job application made on 16 May 2002 and that the inquiry should be limited to matters arising in relation to that complaint. This submission is supported by the lack of any details of the additional applications referred to in the complaint. The only other reference in the original complaint to these later applications, is the statement of the applicant 'I obtained 4 more committee reports and job applications recently and compared the successful applications against mine and not in any one case did I feel that my qualifications/experience were inferior to the successful applicants. In all 5 cases the successful applicant was a young female in her early 20s.' The applicant in the original complaint did not supply copies of the reports and job applications that he referred to. He supplied only copies of the job application and curriculum vitae of the successful applicant for the position of student adviser for which the applicant applied on 16 May 2002. It is not clear from the Acting President's report to the Tribunal whether the Board considered the complaint covered all 5 of the applications. In its letter of 8 January 2003 to the respondent advising the respondent of the complaint, the Board does not specify which job applications were the subject of the complaint. The Board simply enclosed a copy of the original complaint document. In reply to the Board, the respondent stated 'the complainant alleges that Mr Rochas suffered discrimination on the ground of his age and sex by being denied an interview in respect of his employment applications for 5 positions with the University'. The letter deals separately with the circumstances of each of the 5 positions. It is clear that at the time of writing that letter the respondent considered that the complaint related to the 5 job applications. The Tribunal considers that this is the correct position in the interpretation of the complaint and has proceeded to determine the respondent's application on this basis. However, in view of the respondent's submission to the contrary, the matter would need further clarification at the hearing of an inquiry into the complaint. (b) Does the claim of unlawful discrimination relate, in each job application, to the rejection of the applicant as a candidate to be interviewed for the position (s 25(1)(a) in the case of sex discrimination and s 49ZYB(1)(a) in the case of age discrimination), or does the claim relate in each case to the failure of the respondent to appoint the applicant to the positions applied for (s 25(1)(b) in the case of sex discrimination and s 49ZYB(1)(b) in the case of age discrimination)? Or alternatively, do the allegations include both situations? The applicant was not able at the hearing of this application, to assist the Tribunal on this issue. It is an essential element in the applicant's complaint that requires specification. (c) Whether the complaint, when reduced to the specific items of complaint, relates to claims of direct or indirect discrimination. In addressing the Tribunal on this application, the applicant did not seek to distinguish the claims under these categories. His submissions were in general terms which encompassed both categories without recognition of the distinction. This is understandable for a person without a legal background. The situation would require clarification at a hearing on the merits of the complaint. Tribunal determination 14 The respondent submitted that the material in the Acting President's report to the Tribunal demonstrates that the belief held by the applicant that the University in making appointments to the positions for which the applicant had applied, preferred appointing females and not males and to appointing young persons in preference to persons of more mature age such as the applicant, could not be supported and that there was no likelihood that the applicant could produce evidence that would support his belief. The respondent pointed to the applicant's acknowledgment that he could produce no direct evidence that would show that in making its selection in each job application, the respondent gave preference to the appointment of a young female. It was acknowledged by the applicant that in order to establish his case, he would rely on inferences to be drawn from a comparison of his qualification and experience against the qualification and experience of the persons who had been selected by the respondent. 15 The applicant stated that he held copies of the job application documentation including curriculum vitae of each of the successful applicants for the 5 job positions and that if given the opportunity, he could demonstrate that his experience and qualifications exceeded those of the selected applicants. The applicant pointed out that he held a degree in economics from the respondent University and that he had also obtained a superior degree in economics from the University of Budapest. His curriculum vitae showed that he had experience in senior management positions throughout his employment history. 16 In addition, the applicant referred to the Annual Report of the respondent University for the year 2002. The applicant did not produce that document to the Tribunal. The applicant stated that given the opportunity to produce the document, it would demonstrate that two-thirds of the administrative staff of the respondent University at Levels 4 and 5, being the relevant levels to which the 5 job applications related, were held by females over the preceding 5 years. There was a total of 1,059 administrative staff at the respondent University in the year 2002. 17 The applicant also stated that he had been informed by a person who he said would be in a position to know, that the University did adopt a program of giving preference to appointing females to positions in preference to males at that level in the University's administrative staff. When questioned by the Tribunal, the applicant acknowledged that he did not expect that he would be able to demonstrate that the University had an employment policy which specified that females were to be preferred to males in filling those positions. 18 In response to the material to which the applicant referred, the respondent referred to the letter from its solicitors to the Board dated 21 February 2003. In that letter the respondent set out statistics relating to the applicant and to the persons appointed to the 5 administrative positions for which he applied. Those statistics showed the number of females and males who applied for each position, the number of females and males selected for interview, but did not show the age of each of the applicants nor did it show the sex or age of the person who was appointed to the positions. The statistics of the persons who applied and who were selected for interview showed that for the 5 positions a total of 103 females and 62 males applied for the appointments of whom 26 females and 7 males were selected to be interviewed. 19 The respondent submitted that these statistics support the submission that the applicant would not be able to establish the inferences that the University had applied a preference for the appointment of young females either specifically to the 5 positions for which the applicant applied or generally in appointments to its administrative staff. 20 The question of the application by the Tribunal of s 111(1) of the Act to dismiss a complaint at a stage in the inquiry into a complaint where the only evidence before the Tribunal comprises material in the report of the President of the Board to the Tribunal, has been a matter of concern to the Tribunal. This concern is exacerbated, as it is in this case, where the applicant is unrepresented and has no legal background. If the material shows that there is a reasonable avenue for the applicant, given further opportunity to do so, to produce evidentiary material that would establish the claim, mainly because of the preliminary and incomplete nature of the material before the Tribunal, the Tribunal has erred on the side of caution and has not allowed the dismissal application and has given that opportunity to the applicant. 21 The position was recently reviewed and restated by the Appeal Panel of the Tribunal in Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65. The views expressed by the Appeal Panel in that case are apposite to the consideration by this Tribunal in this application. Relevant paragraphs of the decision of the Appeal Panel are quoted as follows: 11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of 'taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken 'at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred. 12 Mr Margan relied on the decision in Z (No. 3) v University of A ([2001] NSWADT 138 revised - 16/04/2002) which made a similar point. In the course of its decision, the Tribunal said, at [45]: The Tribunal is aware of the difficulties associated with establishing a case of unlawful discrimination in the absence of direct evidence. Often the primary source material from which inferences might properly be drawn to prove an applicant's case is in the possession of the respondent. Often too, the only mode of proof available to an applicant is to rely upon a concatenation of circumstances from which an inference might properly be drawn of unlawful discrimination : see the remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626. 13 Wilson J in Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 at p. 78,900 rejected the onerous test of "no real prospect of success." His Honour said at 78,900 "A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance." That test has been adopted by the Federal Court in Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54). 14 However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J's approach in Assal because in those cases the "complainants had had their day before the Commission." In McGlade, the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that "there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end." We agree with and adopt Ormiston JA's approach. 15 The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party's request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant's version of events, the application would most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal's jurisdiction – one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act – then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost. 22 Adopting the statements of the Appeal Panel for the purposes of this application, the Tribunal considers that it would be premature to dismiss the complaint of the applicant, based only on the material in the report of the Acting President of the Board to the Tribunal. The applicant has material available to him which he can produce at a hearing of the complaint and he has alluded to evidence of at least one witness whose evidence may be of assistance to the applicant. 23 The Tribunal has earlier referred to the lack of a formal statement by the applicant of his allegations of unlawful discrimination by reference to the provisions of the Act. It will be necessary for the applicant to file points of claim so that at the hearing the Tribunal and the respondent will be in a position to determine the issues to be decided and the relevance of evidence in determining those issues. Finding of the Tribunal 24 The Tribunal determines that the application under s 111(1) of the Act, made by the respondent, be not acceded to and be dismissed. The Tribunal also determines that there be no order made for costs in relation to the respondent's application. 25 It is necessary then to determine a program to have the matter brought to a hearing before the Tribunal. The Tribunal will arrange for a conference between the parties to establish the appropriate program in this regard.