BKY V The University of Newcastle [2014] NSWCATAD 124

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BKY V The University of Newcastle [2014] NSWCATAD 124 Hearing dates: On the papers final written submissions received 30 May 2014 Decision date: 01 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J Conley, Senior Member Decision: The respondent is ordered to pay the applicant's costs as agreed or as assessed within 28 days from the date of these reasons Catchwords: Application for costs - successful applicant Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW); Anti-Discrimination Act 1977(NSW); Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT, 302; AT v Commissioner of Police, NSW [2010] NSWC, 131; Cooper v Western Area Local Health Network[2012] NSWADT 39; Meriton Properties Pty Ltd v DCM Leases Five Pty Ltd (No2) [2010] NSWADT 11. Category: Costs Parties: BKY (Applicant) University of Newcastle (Respondent) Representation: Counsel N Obrart (Applicant) Keith Hurst & Associates (Applicant) Hicksons Lawyers (Respondent) File Number(s): 131018 Publication restriction: s 64 of the Civil and Administrative Review Act 2013 applies

reasons for decision

Background 1The applicant made a complaint that the respondent discriminated against her on the grounds of disability. As part of her complaint the applicant indicated that she would be seeking an order for costs if successful. 2The basis of the complaint was that in 2004 the applicant (BKY) commenced a course for the study of a Bachelor of Medicine (the medical degree) at the University of Newcastle (the respondent). The medical degree is a 5 year full time course. The respondent had a requirement that the medical degree be completed within 8 years. If the degree was not completed within this time an extension of time must be sought in order to be allowed to complete the degree. By January 2012 the applicant had not yet completed her medical degree. She was advised by the respondent that she would need to seek an extension of time to complete the degree. She subsequently sought an extension of time which was declined. 3The applicant claimed that the University of Newcastle discriminated against her on the grounds of her disability. She claimed that for the period of her enrolment with the respondent she had been diagnosed with the psychiatric conditions Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors and that she had symptoms of these conditions present during the course of her study. She claimed that she had a disability within the meaning of the Anti-discrimination Act 1977 and that the respondent either directly or indirectly discriminated against her on the grounds of her disability. It was alleged that the respondent was vicariously liable for the acts of it's employees. 4At the commencement of the hearing the applicant applied for a suppression order pursuant to section 75 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Given the sensitive nature of the Applicant's disability in relation to this application and her future career prospects the Tribunal was satisfied that an order should be made pursuant to section 75(2) of the ADT Act that:1)The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant is prohibited;2)The doing of any other thing that identifies or may lead to the identification of the Applicant is prohibited; and3)The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal is prohibited. 5The matter came before the former Administrative Decisions Tribunal (the ADT) for hearing for hearing over three days on 16 to 18 October 2013. On the third day of the hearing the respondent indicated that it had become apparent after hearing oral evidence that it had not fully complied with a summons for the production of documents. The matter was adjourned to enable this issue to be dealt with. The hearing was resumed on 31 October 2013 and was able to be concluded on that date. At the conclusion of the hearing the parties sought to file written submissions. Leave was granted for the filing of submissions with a time-table set. Final written submissions were then submitted by 5 February 2014. 6This matter was initially commenced in the former ADT in 2013. The hearing was concluded on 31 October 2013 with final submissions filed in February 2014. The matter was determined on 28 March 2014. 7On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, the matter was a "part heard" proceeding. 8In respect of the complaint the Tribunal found in the applicant's favour. It was determined that the respondent had discriminated against the applicant on the grounds of her disability. The Dean of the Joint Medical Program for the respondent was directed to exercise his discretion to extend time for the applicant to complete her medical degree by 18 months. Written reasons for decision were provided. 9The Tribunal directed that any submissions as to costs be filed and served and a timetable was given. The Tribunal received submissions in writing from both the applicant and the respondent, final submissions were received on 30 May 2014.