Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coomaraswamy v Campbelltown Anglican Schools Council [2015] NSWCATAD 271 Hearing dates: 10 November 2015 Date of orders: 10 November 2015 Decision date: 10 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination to proceed. Catchwords: ANTI-DISCRIMINATION - leave sought to proceed with declined complaint - allegation of race discrimination by student teacher against a school - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Shvetsova v State of New South Wales (Department of Education and Communities) [2012] NSWADT 253 Category: Principal judgment Parties: Mohan Coomaraswamy (Applicant) Campbelltown Anglican Schools Council (Respondent) Representation: Counsel: R Graycar (Respondent)

Solicitors: M Coomaraswamy (Applicant in person) Minter Ellison (Respondent) File Number(s): 1510622 Publication restriction: Nil

ex Tempore reasons for decision 1. DEPUTY PRESIDENT HENNESSY: This is an application to the Tribunal for leave to proceed with a complaint under the Anti-Discrimination Act 1977 (NSW) in circumstances where the President of the Board has declined the complaint because he was satisfied that it was lacking in substance under s 92(1)(a). Under s 96 of the Anti-Discrimination Act a complaint referred under that provision may not proceed without leave being granted by the Tribunal. 2. The principles for granting leave were set out in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] to [38], and commented on by Sackville AJ in Jones v Ekermawi [2009] NSWCA 388 at [48] and following. The relevant test is whether it is fair and just in the circumstances for leave to be granted. 3. Ms Graycar, representing the respondent, set out a brief history of the background to the complaint from the respondent's point of view in her helpful submissions from para 7 to 16. The respondent is a high school at which the applicant undertook a student practicum as part of his enrolment in a teaching degree at the University of New South Wales (UNSW). He was at the respondent's School undertaking his practical teaching for the period 29 August 2012 to 21 September 2012. No complaint was made to the school about anything that happened during that period prior to the complaint being lodged with the ADB in March 2014. In 2013, it appears from the material in the President's file that the applicant undertook another student practicum which was also considered unsatisfactory as a result of which he apparently failed the unit Professional Experience II and was unable to complete the course that would have qualified him to teach. The UNSW Head of School, Professor Davison, informed him of the decision by email dated 15 June 2013. The applicant sought a review of the Head of School's decision of 15 June 2013, relating to his progress and enrolment, by means of UNSW's internal review procedures. That appeal was unsuccessful. He then appealed against that decision … The focus of concern in that process at both stages, was his more recent practicum, that is, the one that took place at Castle Hill high school in June 2013 which appears to have precipitated the Head of School's decision. In fact, in neither his original communication to UNSW, nor in his later submission to the UNSW Review Committee, does the applicant refer to the respondent or any conduct of the respondent. The appeal was focused only on UNSW and the school at which he undertook his PE 2 placement in 2013 - Castle Hill High School. After his UNSW appeal was unsuccessful, the applicant indicated his intention to pursue the matter by complaint to the Ombudsman. The Ombudsman declined to investigate the complaint, inter-alia on the basis that the University's internal appeal process was transparent and had been followed, and the applicant had been afforded the opportunity to put all relevant circumstances to the University's Complaint Appeals Committee. In the letter he received from the Office of the Ombudsman, he was advised that, as he had raised concerns that Professor Davison of UNSW "may have been motivated by racial prejudice", he could pursue this aspect of his complaint with the ADB. The applicant was dissatisfied with the Ombudsman's decision and sought to have the Ombudsman reconsider the matter. The former Ombudsman, Mr Barbour, wrote to him on 10 February 2014 indicating he did not intend to change the decision declining the complaint and noting that the Ombudsman does not "review the merits of academic decisions in the absence of clear evidence of some procedural or administrative from conduct" … It was after those unsuccessful attempts to seek a remedy at both UNSW and via the NSW Ombudsman that the applicant lodged his complaint with the ADB on 20 March 2014.