New South Wales Supreme Court CITATION : Wecker v University of Technology, Sydney [2007] NSWSC 927 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 14 August 2007 JUDGMENT DATE : 23 August 2007 JURISDICTION : Common Law Division - Administrative Law List JUDGMENT OF : Associate Justice Harrison DECISION : (1) The appeal is dismissed; (2) The decision of the Administrative Decisions Tribunal Appeal Panel dated 2 April 2007 is affirmed.; (3) The summons filed 1 May 2007 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS : Appeal decision - Administrative Decisions Tribunal Administrative Decisions Tribunal Act 1997 (NSW) - ss 49A, 49B, 49L(2), 113 119 Anti-Discrimination Act 1977 (NSW) - s 96 LEGISLATION CITED : Criminal Code (WA) - s 23 University of Technology Sydney Act 1989 (NSW) - s 29 University of Technology Sydney By-law 2005 (NSW) - cl 44 Latoudis v Casey (1990) HCA 59 CASES CITED : R v Falconer (1990) 171 CLR 30 Wecker v University of Technology, Sydney (No 2) [2006] NSWADT 340 PARTIES : Paul Josef Wecker - Plaintiff University of Technology Sydney - Defendant FILE NUMBER(S) : SC 30043/2007 COUNSEL : Ms J Oakley - Defendant SOLICITORS : Mr P Wecker - Plaintiff in person University of Technology, Sydney - Defendant LOWER COURT JURISDICTION : Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S) : 051134 LOWER COURT JUDICIAL OFFICER : Appeal Panel LOWER COURT DATE OF DECISION : 2 April 2007 LOWER COURT MEDIUM NEUTRAL CITATION : Wecker v University of Technology, Sydney (EOD) [2007] NSWADTAP 15 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON THURSDAY, 23 AUGUST 2007 30043/2007 - PAUL JOSEF WECKER v UNIVERSITY OF TECHNOLOGY SYDNEY JUDGMENT (Appeal decision – Appeal Panel - Administrative Decisions Tribunal) 1 HER HONOUR: By summons filed 1 May 2007, the plaintiff seeks that the orders made by the Appeal Panel of the Administrative Decisions Tribunal (ADT) on 2 April 2007 [be set aside], or alternatively, relief in damages. He was suspended from the University of Technology Sydney for 12 months. This period expired on 8 August 2006, over a year ago. Of particular concern to the plaintiff is that on his academic record, upon completion of the outstanding subject, will appear the notation "suspended 12 months". In his view this notation will affect his employment opportunities and carries with it a social stigma. 2 The plaintiff is Paul Josef Wecker (Mr Wecker). The defendant is the University of Technology Sydney (UTS). Mr Wecker relied on his affidavit sworn 1 May 2007. Mr Wecker presented his case on this appeal. Grounds of appeal 3 Mr Wecker appeals the whole of the decision of the Appeal Panel dated 2 April 2007 on the grounds firstly, that an error law was constituted by the dismissal of the question of "differential treatment" as relevant only to a finding of fact, not a question of law; secondly, that the Appeal Panel failed to take into account the relevant consideration that his explanation of the legal principles as a question of law revealed the factual outcome as "differential treatment" and therefore erred in law constituting a denial of natural justice; and thirdly, the Appeal Panel erred in law when it failed to take into account the relevant consideration that to allow the UTS to breach it's own "Guidelines on Determining an Appropriate Penalty for Instances of Misconduct" was to allow "differential treatment" resulted in a denial of natural justice by denying Mr Wecker's legitimate expectation of equal treatment. Background 4 Mr Wecker has been conferred with Bachelor of Arts. He was enrolled in his last subject before he would be awarded a Masters degree in English at the University of Technology, Sydney. 5 I have reproduced the facts from paragraphs [7] to [10] of the decision of the ADT in Wecker v University of Technology, Sydney (No 2) [2006] NSWADT 340. They read: "7. Generally speaking, and except where indicated below, the facts of this matter are not in dispute. Mr Wecker was a graduate student at UTS. He sought accommodation at a UTS owned residence. He signed a lease or licence agreement prior to inspection of the unit but after inspecting it, he formed the view that it was not suitable because it was in bad condition and very noisy. He then approached the Housing Manager employed by the respondent, Mr Mitra, and sought to terminate the licence. This was accepted on the basis of Mr Wecker paying two weeks' rent and the licence was terminated. Mr Mitra made handwritten notes in relation to that agreement. At some later point, either that day or the next, Mr Wecker returned to the Housing Office. He wished to speak to Mr Mitra. Mr Wecker wished to have a handwritten word, which turned out to be the word "notice", clarified. He asked the person to whom he spoke at the front desk to re-write the word but she suggested he return when Mr Mitra would be in the office. 8. Mr Wecker then said words to the Officer, Ms Hawden, the contents of which are somewhat in dispute, but the effect of which is not. The effect of the words were, either, "I could get you and your Manager killed" or "I have the power to kill you and your boss, it will be done". 9. On either version, neither of which was provided by Mr Wecker, there was, prima facie, a threat to kill Ms Hawden and/or Mr Mitra. 10. Mr Wecker's explanation as to the use of the words was that he uttered them in a state of automatism under provocation, and that the words were not of his doing, but those of a guardian angel. He said that the words were not a threat, because they were, firstly, a reminder of the power of the guardian rather than a threat, and, secondly, colloquially used and not intended to be acted upon." 6 Ultimately, the Vice Chancellor suspended Mr Wecker for a period of 12 months as from 8 August 2005 in accordance with r 16.3.1(5) of the Student and Related Rules of the Rules of the University (made pursuant to s 29 of the University of Technology Sydney Act 1989 (NSW) and clause 44 of the University of Technology Sydney By-law 2005 (NSW)). The history of proceedings 7 On 19 August 2005, Mr Wecker made a complaint against the University to the President of the Anti-Discrimination Board. The President declined the complaint as lacking in substance. 8 Mr Wecker sought and was granted leave to proceed in the Tribunal under s 96 of the Anti-Discrimination Act 1977 (NSW) on 14 December 2005. 9 On 21 June 2006 and 18 August 2006, Mr Wecker's complaint was heard by the Administrative Decisions Tribunal. On 1 December 2006, the Tribunal dismissed Mr Wecker's application. Mr Wecker then appealed to the Appeal Panel. 10 On 14 March 2007, the appeal was heard. On 2 April 2007, the Appeal Panel dismissed his application. 11 The plaintiff appeals to this Court pursuant to s 119(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) which permits an appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings. The proceedings in the Appeal Tribunal 12 The Tribunal's decision of 1 December 2006 is an appealable decision within the meaning of section 113 of the ADT Act. Section 113 of the ADT Act relevantly provides: "(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this part: (a) may be made on any question of law, (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision." 13 Mr Wecker did not seek leave from the Appeal Panel to review the merits of the Tribunal's decision. His appeal to the Appeal Panel was confined to three purported questions of law. They were: (a) that the Tribunal failed to admit into evidence the President's Summary of Complaint; (b) that the Tribunal failed to apply the High Court's decision in R v Falconer (1990) 171 CLR 30; and (c) that the Tribunal erred in relation to its findings about the differences in penalties imposed by UTS. 14 The Appeal Panel dismissed Mr Wecker's appeal on all three grounds. The Appeal Panel held on the first ground that the Tribunal had failed to admit the President's Summary of Complaint because the Tribunal had in fact admitted that document and all annexures to it as Exhibit A. It dismissed the second ground that the Tribunal had failed to apply R v Falconer on the ground that s 23 of the Criminal Code (WA) was not in issue in the proceedings so the Tribunal did not err by failing to apply the High Court's reasoning. The last ground of appeal, that the Tribunal erred in its findings about differences in penalties imposed by UTS was dismissed because firstly, the Tribunal's finding that he had not been subjected to differential treatment did not arise, secondly, it was in any event a finding of fact and lastly, Mr Wecker had not sought leave to extend his appeal to the merits. (1) The first alleged error of law – differential treatment 15 Mr Wecker submitted that the Appeal Panel made two errors of law about the question of differential treatment. According to Mr Wecker differential treatment can be presented as both a question of law and finding of fact. Further, he submitted that this error of law constituted a denial of procedural fairness. 16 The University submitted that there is no error of law in the Appeal Panel's characterisation of the Tribunal's determination that Mr Wecker had not been subjected to differential treatment. Nor, according to the University, had there been a misdirection or lack of evidence for this finding and in any event that finding was not determinative of the ultimate decision. 17 In order to properly understand the decision of the Appeal Panel, it is necessary to refer to particular sections of the Anti-Discrimination Act 1997 (NSW) which were put in issue by Mr Wecker. They are ss 49L(2), 49A and 49B. 18 Section 49L(2) reads: "(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." 19 The UTS is an educational authority and a suspension is a detriment so these elements of s 49L(2) are satisfied. 20 Section 49A reads: "Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)." 21 Section 49B relevantly reads: "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." 22 The Appeal Panel stated at paragraphs [11]-[14]: "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." 23 The ADT made a finding of fact that Mr Wecker did not have a disability within the meaning of s 49A. One may find this surprising but this finding was made when the evidence from the plaintiff and the evidence from the members of the University was evaluated by the Tribunal. If Mr Wecker did not have a disability, it follows as a matter of law, that s 49B can have no application. The issue of whether or not he was treated less favourably does not come into play. The Appeal Panel was correct. 24 It is my view that the plaintiff was given an opportunity to present his case and make submissions before the Appeal Panel. There was no denial of procedural fairness. (2) Discrimination on the ground of presumed disability 25 It is difficult to understand the second ground but doing the best I can, the plaintiff submitted that because on 11 April 2005 the Registrar of the University firstly sent a letter to him putting him on notice of the fact that his conduct as reported could constitute a breach of the University's rules and policies and that he would, if the matter were not resolved, be liable to a charge of misconduct; and secondly, advised him that if he obtained a Psychiatrist's report indicating that Mr Wecker was receiving treatment or that he did not require treatment and was not a risk to others' safety then the matter could be regarded as resolved. It follows, according to Mr Wecker, that these actions amounted to the University acting on the basis of this "presumed disability", and that the Appeal Panel erred by not taking this into account. The actions of the Registrar occurred prior to the Vice Chancellor making his decision to suspend Mr Wecker. It is the Vice Chancellor's decision that was the subject of complaint. The Vice Chancellor's evidence was that he did not presume one way or the other that Mr Wecker suffered from a psychiatric illness. 26 The defendant submitted that in effect Mr Wecker is seeking a merits review of the Tribunal's decision rather than an appeal of the Appeal Panel's decision on a question of law. 27 The ADT at paragraph [36] and [42] stated: "36 Both the Registrar, Dr FitzGerald, and the Vice-Chancellor, Professor Milbourne, gave evidence that they did not presume one way or the other that Mr Wecker suffered from a psychiatric illness. Dr FitzGerald said that he was seeking, in his letter of 11 April 2005, an explanation of the conduct and a reassurance that it would not happen again. He was not cross-examined on this evidence. Professor Milbourne said that "in the absence of (Mr Wecker) providing a psychiatric report one way or another it was simply not possible to have a view on (the question of whether Mr Wecker suffered from a psychiatric illness)". Professor Milbourne was not cross-examined on his evidence. … 42 The Tribunal is of the view that Mr Wecker has not been able to demonstrate that there was anything more than a query raised in the minds of the Registrar and the USCC as to Mr Wecker's psychiatric health, nor that, as a result, he was treated less favourably. The University relied on its Rules relating to conduct, which require that students are "required to maintain an acceptable standard of conduct at all times while on university premises … and in relation to both academic and non-academic matters" (see Rule 2.1.1). A failure to maintain that standard is an act of misconduct (Rule 2.1.10(1)). The evidence was, and it is accepted by the Tribunal, that a threat to kill, prima facie, is a serious act of misconduct when made by a student to a university employee and one which falls within the Rules. The defences raised by Mr Wecker - that of non-insane automatism, that the words were uttered by a guardian angel, or that they did not constitute a threat - are not matters which are accepted by the Tribunal as exculpatory of the conduct (even if the Tribunal's role were, in effect, as an appeal body from the SMAC, which it is not)." 28 Mr Wecker also complained to this Court that the President of the ADT misinterpreted his psychic force/guardian angel analogy, which he used to explain the motivating force in non-insane automatism, to the extent that it constitutes a presumption of reasonable evidence for supposing mental illness (religious delusions). Mr Wecker expanded upon this concept during the hearing of this appeal. He explained the interaction of a person's electromagnetic forces with the electromagnetic forces of others. He elaborated that when he was subjected to shock his free will dissipated and the electromagnetic forces took him over so that the words he allegedly uttered were not his own. According to the plaintiff this process is also known as "temper trapping". However, this appeal point was not raised before the Appeal Panel. It cannot be said that the Appeal Panel made an error of law in this regard. 29 In oral submissions, Mr Wecker stated that UTS erred in the application of its guidelines. He submitted that UTS should have applied the minor sanction contained in r 16.3.1(16) not and the more serious r 16.3.1(5). The guidelines are headed "Schedule 5 – Guidelines on determining an appropriate penalty for instances of student misconduct". The guidelines state: "Whilst these guidelines provide general parameters for determining penalties, the appropriate penalty for an instance of misconduct ultimately must depend on the facts found in each case, and a body is free to depart from the principles set out in these guidelines where the facts indicate that such a course is appropriate. The appropriate penalty remains at the discretion of the body imposing it given that the circumstances of an instance of misconduct and the student present an almost infinite variety from case to case." 30 Rule 16.3.1(16) provides for a reprimand or caution in cases and reads: · First minor instance of misconduct · Usually imposed with other penalties · A caution is a formal warning to the student that any future instance of misconduct will be treated most seriously and will result in a more severe penalty · A formal reprimand by the Vice-Chancellor for misconduct is communicated to the student in a letter. The letter of reprimand is placed on the student's confidential file and remains confidential. It does not appear on a student's transcript either internal or external. 31 Rule 16.3.1(5) is more serious. The guideline in relation 17 to it reads: · Damage to University property or misuse of University facilities · Disruption to University activities and or freedom of other persons · Academic misconduct including plagiarism, exam malpractice · Repeat cases of academic and/or non-academic misconduct · Failure to comply with any penalty imposed for an instance of misconduct 32 The plaintiff referred to Latoudis v Casey (1990) HCA 59, particularly at 451-452 where Mason CJ said: "But it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity. I venture to repeat the comments made by Deane J. and myself in Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, at p 519: "The point of preserving the width of the discretion which Parliament has created is that it maximizes the possibility of doing justice in every case. But the need for consistency in judicial adjudication, which is the antithesis of arbitrary and capricious decision-making, provides an important countervailing consideration supporting the giving of guidance by appellate courts, whether in the form of principles or guidelines." 33 The plaintiff referred to other cases determined by the University. With the one exception (a person running around naked in the toilets), no-one was required to obtain a report from a psychiatrist and therefore he should not have been required to do so. But as stated earlier, this requirement was not one that the Vice Chancellor imposed. 34 The guidelines are discretionary. The guidelines themselves say so. Even if the University was obliged to apply the guidelines, it was open to the Vice Chancellor to apply the more serious guideline. 35 The appeal is dismissed. The decision of the Administrative Decisions Tribunal Appeal Panel dated 2 April 2007 is affirmed. The summons filed 1 May 2007 is dismissed. 36 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed. The Court orders that: (1) The appeal is dismissed. (2) The decision of the Administrative Decisions Tribunal Appeal Panel dated 2 April 2007 is affirmed. (3) The summons filed 1 May 2007 is dismissed. (4) The plaintiff is to pay the defendant's costs as agreed or assessed. ********** 23/08/2007 - Change plaintiff's middle name from "Jason" to "Josef" - Paragraph(s) Judgment citation and paragraph {1} of judgment 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.