Margan -v- University of Technology, Sydney [2003] NSWADT 133

Set aside by Appeal : Set aside by Appeal on 4 December 2003

CITATION: Margan -v- University of Technology, Sydney [2003] NSWADT 133 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Simon Margan RESPONDENT University of Technology, Sydney FILE NUMBER: 021097 HEARING DATES: 03/04/2003 SUBMISSIONS CLOSED: 04/03/2003 DATE OF DECISION: 06/05/2003

BEFORE: Needham J - Judicial Member; Antonios Z - Member; Nemeth de Bikal L - Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Anti-Discrimination Act 1977 Langley v. Niland & Anor [1981] 2 NSWLR 104 CASES CITED: Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Hill v. University of New England (1990) EOC ¶92-291 Z (No 3) v. University of A [2001] NSWADT 182 APPLICANT REPRESENTATION: In person RESPONDENT D O'Hara, solicitor ORDERS: The applicant's complaints are dismissed pursuant to s 111(1) of the Anti-Discrimination Act 1977.

Application 1 The President of the Anti-Discrimination Board received complaints under the Anti-Discrimination Act 1977 (NSW) ("the Act") from Mr Simon Margan, on 7 September 2000 ("the first complaint") and 23 January 2002 ("the second complaint"). Mr Margan (who will be referred to as "the applicant", despite the fact that this is the respondent's application) alleged that he had been discriminated against and victimised on the ground of homosexuality in education - that is, under ss 49ZF, 49ZG and 49ZO, and ss 50 and 53, of the Act. 2 The complaints were investigated and Acting President Smyth declined them as lacking in substance pursuant to s 90(1) of the Act. The applicant requested, on 19 August 2002, that the matters be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal pursuant to s 91(2) of the Act. 3 The matter came before Judicial Member Jane Needham for case conference on 27 September 2002. In accordance with Division practice, the applicant was informed at that case conference that further material should be provided in support of the complaint as it had already been declined by the Anti-Discrimination Board. The matter was listed for a further case conference on 29 November 2002, at which case conference the named respondent, the University of Technology, Sydney ("the respondent"), indicated that it wished to make application pursuant to s 111 of the Act. That section provides, relevantly:- "(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". 4 The s 111 application was listed for hearing on 30 January 2003 but was adjourned since the applicant wished to obtain legal advice and possibly representation. The matter was heard, with the applicant representing himself, on 3 April 2003. Facts 5 The facts in this application are extensive and supported by comprehensive documentation, and what follows is a summary of the important facts as they appear to the Tribunal. The Tribunal has read the entirety of the material placed before it on this application and in support of the original complaints to the Anti-Discrimination Board, and the fact that a particular matter is not mentioned here does not mean that it has been overlooked or ignored. The file is voluminous and covers a great deal of ground, not all of which is relevant to this application. 6 The applicant is a student at the University of Technology. He identifies as homosexual, commencing the first complaint to the Anti-Discrimination Board with "I am a gay student ...". He alleges that he has been discriminated against by reason of his homosexuality. He does not need to be homosexual in order to attract the jurisdiction of the Tribunal (see s 49ZF of the Act). 7 The complaints were summarised by the President of the Anti-Discrimination Board under cover of his letter to Dr FitzGerald, the Registrar of the respondent, dated 3 April 2002. At the first case conference, the applicant acknowledged that that summary was an accurate encapsulation of his complaints. The summary reads:- 1. On 16 February 2000, the registrar advised (the applicant) that his academic record would not be altered from a Master's to PhD to reflect the true nature of his enrolment. In this letter he was advised that he would not be given the possibility of enrolling in a PhD course. The reason given revolved around a computer incident in June 1999. He appears to be alleging that this is an example of victimisation arising from his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn.