Lotfizadeh v University of Western Sydney [2016] NSWCATAD 205

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lotfizadeh v University of Western Sydney [2016] NSWCATAD 205 Hearing dates: 5 July 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The Applicant's application for leave for the complaint of disability discrimination to proceed is dismissed. Catchwords: HUMAN RIGHTS – complaint of disability discrimination – declined as lacking in substance by President of Anti-Discrimination Board – whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 4A, 48B, 49 and 96 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 O'Callaghan v Loder [1983] 3 NSWLR 89 Purvis v New South Wales (2003) 217 CLR 92 Category: Principal judgment Parties: Allan Lotfizadeh (Applicant) University of Western Sydney (Respondent) Representation: Counsel: P Thew (Respondent) Solicitors: Applicant (self-represented) Office of General Counsel, Western Sydney University (Respondent) File Number(s): 1610083 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. Mr Lotfizadeh complains that Professor Wilkes bullied him in a meeting and that the University of Western Sydney did nothing when he complained. He claims that the alleged bullying and the University's lack of response were because of his disability which he describes as chronic leg pain and hearing loss. He also complains that the University did not give him enough time to complete his Confirmation of Candidature (CoC) before terminating his enrolment. 2. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. The question in these proceedings is whether it is fair and just for Mr Lotfizadeh's complaints to go ahead: Anti-Discrimination Act 1977 (NSW), s 96(1). The onus is on him to satisfy the Tribunal that the complaints should proceed to a hearing. 3. It is unlawful for an educational authority, such at the University, to "discriminate" against a person on the ground of disability by expelling him or her or subjecting him or her to any other detriment: Anti-Discrimination Act 1977, s 49L. Mr Lotfizadeh is complaining about being expelled before he was given more time to comply with the University's requirements. Mr Lotfizadeh also says that the University has subjected him to a detriment in the manner in which Professor Wilkes spoke to him and because the University did not deal with his bullying complaint in a constructive and supportive manner. 4. The Supreme Court set out the principles to be applied when determining whether to grant leave for declined complaints to proceed in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:◦ (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. Mr Lotfizadeh is aggrieved by what he sees as inappropriate behaviour by Professor Wilkes. But bullying and harassment on the ground of disability are not terms used in the Anti-Discrimination Act. To substantiate the complaints, he would have to prove that the University has discriminated against him. The words Professor Wilkes is alleged to have said are unlikely to meet the threshold of subjecting Mr Lotfizadeh to a detriment on the ground of disability. Nor would Mr Lotfizadeh be able to prove that the University discriminated against him on the ground of disability by failing to respond to the complaint. They did respond but Mr Lotfizadeh chose not to pursue the course they suggested as a first step. Finally, the University gave Mr Lotfizadeh ample time to complete his CoC even taking into account his disabilities. If this matter went to a hearing it would be highly unlikely that Mr Lotfizadeh would be able to establish a breach of the Anti-Discrimination Act. 2. For those reasons, which I will explain further, I have decided to refuse leave for each of Mr Lotfizadeh's complaints to go to a hearing.