Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 39, 47

Disability Discrimination Act 1992 (Cth) ss 31, 32, 33, 34

Discrimination Amendment Act 2016

Discrimination Act 1991 ss 7, 8, 18, 53E

Human Rights Act 2004 ss 27A, 40B

Human Rights Commission Act 2005 ss 7, 8, 53A, 53CA, 53E

Powers of Attorney Act 2006 ss 57, 63

Subordinate

legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 rr 41, 45, 47

Disability Standards for Education 2005 (Cth)

Cases cited: Australian Capital Territory v Wang [2019] ACAT 65

Complainant 201823 v Insurance Australia Group trading as NRMA [2019] ACAT 64

Cheluvappa v University of Canberra [2018] ACAT 108

Cooley v Australian National University [2007] ACTDT 2

Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379

Jamieson Mary v Australian Workers Union and Anor [1999] VCAT 268

Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50

Mewett v University of Canberra [2018] ACAT 61

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 43

Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132

Purvis v New South Wales [2003] HCA 62

TGD v Australian National University [2019] ACAT 81

The State Electricity Commission Board v Rabel [1998] 1 VR 102

Tomlinson v Ramsey Food Processing Limited [2015] HCA 28

UBS AG v Tyne [2018] HCA 45

1. The respondent's application pursuant to section 32 of the ACAT Act is dismissed.
2. The complaint is dismissed.
3. The orders made on 30 April 2020 pursuant to section 39 of the ACAT Act are set aside.
4. There is to be no public access to the Tribunal file.

1. The complainant in this matter, Despina Andreopoulos (complainant), was a student at the University of Canberra (University). In 2015 she enrolled in the Bachelor of Physiotherapy course at the University, for which she received some credits for subjects undertaken earlier as part of her studies for a Bachelor of Science and Bachelor of Arts degree from Monash University.[1]
2. The complainant has suffered from Attention Deficit Hyperactivity Disorder (ADHD) since childhood. At the commencement of her studies at the University, she registered with the University's Inclusion and Engagement Section (I&E). I&E's role includes to provide support for a student with a disability by providing a reasonable adjustment plan (RAP), developed in consultation with the student and the school, which is intended to balance, among other things, the student's disability, the effect of the adjustments on the student's ability to achieve the learning outcomes, the effect of the adjustments on other students, and the requirement to maintain the academic integrity of the course. I&E developed a RAP in consultation with the complainant and the school of physiotherapy in 2015 and again in 2016.
3. Clinical exams, also referred to as Viva exams, are an integral part of the University's assessment requirements for the physiotherapy degree. In the second semester of 2017, to advance to the next stage of the course, the complainant was required to pass a unit known as Musculoskeletal Intervention 1 (MI1). The assessment for MI1 included two Viva exams, comprising 30% and 40% respectively of the total marks for the subject.[2]
4. On 10 August 2017, I&E notified the complainant that that she would receive up to 15 minutes extra time for clinical exams as part of her RAP, effective to the end of the year. She had received a similar adjustment in the second semester of 2016. This changed on 21 September 2017, shortly before she was due to undertake her first Viva exam in MI1, when I&E notified the complainant that she would receive only 5 minutes additional reading time and no additional time for the practical, instead of the additional 15 minutes she was expecting. The University's position is that the considerations involved in the decision not to allow the complainant additional time included course accreditation requirements, patient safety, maintaining academic integrity of the course, preparing students for clinical placement and fairness to other students.
5. The complainant failed her first Viva exam for MI1 in October 2017. The physiotherapy school refused I&E's subsequent request for the complainant to be given additional time for the practical but agreed to offer the complainant an additional one-on-one practice session.
6. The complainant failed her second Viva exam also. She failed MI1 as a result and subsequently withdrew from the physiotherapy course.
7. On 5 August 2019, the complainant made a complaint to the ACT Human Rights Commission (HRC) in which she claimed that the University:

...directly discriminated against me as a student, on the basis of my disability. The education provider failed to continue to make the reasonable adjustments so that I can continue to participate in the physiotherapy course. Without the continuation of my reasonable adjustment I was unable to carry out the inherent requirements of the physiotherapy program, as a result, was forced to end my studies, of three years, costing me a massive loss of $50,000 plus, this includes university accommodation and HECS fees.

1. On 18 November 2019, the HRC notified the complainant that it considered conciliation was unlikely to be successful. On 29 November 2019, at the complainant's request, the HRC referred the complaint to the Tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). A referral from the HRC is treated as an application made under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).[3] We will refer to the application as the 'complaint' to distinguish it from applications for interim or other orders filed subsequently by both parties, to which we refer later.
2. The complaint was listed for hearing for two days, commencing on 25 May 2020. The complainant appeared by video link at the start of the hearing, but subsequently withdrew and the Tribunal proceeded to hear the matter in her absence. The circumstances in which that happened are unusual and require explanation. We do so later in these reasons.

Alleged 'discrimination' in the context of the complaint

1. The complainant claims that the University discriminated against her "by the removal of my fifteen minutes in semester 2 2017 using the Australian Physiotherapy Association as the excuse".[4] She claims the real reason for the University's refusal to give her additional time is because of her disability. Without additional time for the Viva exams, she claims she could not pass the exams and continue the course because of her ADHD.
2. 'Disability' is a protected attribute under section 7(1)(e) of the Discrimination Act 1991 (Discrimination Act). The complainant's ADHD, which causes her problems with concentration, task persistence, time management and anxiety, is a disability.[5]
3. Under section 8 of the Discrimination Act, a person may be directly or indirectly discriminated against, or both. Direct discrimination occurs when a person treats another person unfavourably because of a protected attribute. Indirect discrimination occurs when a person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute. However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
4. Section 18(2)(c) of the Discrimination Act makes it unlawful for an educational institution to discriminate against a student "by subjecting the student to any other detriment".
5. Although the complainant characterises the University's treatment of her as direct discrimination, the essential facts upon which she relies - namely the removal of additional time for the Viva exams, causing her to fail and be unable to continue the course - are equally capable of being characterised as indirect discrimination. Although at one time direct discrimination and indirect discrimination were considered mutually exclusive categories of discrimination under the legislation as it stood at the time, amendments to section 8 by the Discrimination Amendment Act 2016 make it clear that discrimination may occur when a person discriminates directly or indirectly, or both, against a person.[6] They are not mutually exclusive and may arise out of the same set of circumstances.
6. The University conducted its case on the basis that the complaint involves claims of direct and indirect discrimination. Evidentiary issues relevant to a claim of indirect discrimination were discussed in the directions hearings before Senior Member Orlov and the notation appearing at the end of the orders made on 30 April 2020 are directed to that issue. The bulk of the University's evidence concerns the question whether the University acted reasonably in refusing to allow the complainant additional time for the Viva exams and the University made submissions on the premise that indirect discrimination is an issue the Tribunal must decide.
7. We are satisfied, therefore, that the complainant's characterisation of the University's conduct as direct discrimination is not determinative and that it is necessary for the Tribunal to consider whether the evidence establishes that direct or indirect discrimination has occurred.
8. Section 53CA(2) of the HRC Act provides for the onus of proof where a complaint is referred to the ACAT about direct or indirect discrimination.
9. A rebuttable presumption that direct discrimination has occurred will arise in this case if the complainant establishes that the treatment by the University about which she complains - relevantly, the refusal to allow her additional time for Viva exams for which her RAP provided - was unfavourable and was because of her disability. The complainant must present evidence that enables the Tribunal to decide, in the absence of any other explanation, that the unfavourable treatment was because of her disability. If such a presumption arises, it may be rebutted if the University establishes the unfavourable treatment was not because of the complainant's disability.
10. A rebuttable presumption that indirect discrimination has occurred will arise in this case if the complainant establishes that the University's requirement - relevantly that she undertake Viva exams without additional time for the practical component - had, or was likely to have, the effect of disadvantaging her. The complainant must present evidence that enables the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging her was because of her disability. The presumption will not arise if the University establishes that the requirement was reasonable in the circumstances, or may be rebutted if the University establishes that the effect of disadvantaging the complainant was not because of her disability.
11. In Kidman v Casino Canberra Pty Ltd,[7] the tribunal considered the issue of unfavourable treatment to be a question of fact. The test is objective rather than comparative. The Tribunal noted that:

The Discrimination Act does not define 'unfavourable treatment' or what is meant by 'treats or proposes to treat another person unfavourably'. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: "were you treated less favourably than others?" It asks, "were you treated unfavourably?" This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is 'unfavourable treatment' and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[8]

1. 'Unfavourable treatment' has been said to encompass acts or omissions which result in some detriment, being loss, damage or injury.[9]
2. In Australian Capital Territory v Wang, the tribunal noted that the words 'effect' and 'disadvantaging" are not defined in the Discrimination Act.[10] The tribunal adopted the following meaning of 'disadvantage' discussed in Prezzi, Patricia Anne v Discrimination Commissioner[11] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd[12]:

[22] ... While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison... or means specially favourable to success, interest or any desired end ...

[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint...

1. The Tribunal must have regard to the educational context in which the University's alleged conduct occurred. In Purvis v New South Wales, Gleeson CJ held, in respect to the Disability Discrimination Act 1992 (Cth):

The obligations which arise from the Act have to be related to the functions, powers and responsibilities of the first respondent. Furthermore, the conduct of the first respondent can only be evaluated fairly in the light of an understanding of those functions, powers and responsibilities. The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. The first respondent showed concern and sensitivity in its dealings with the pupil. It also recognised its legal responsibilities to the other pupils and to the school staff. If there is a reasonable construction of the Act which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.[13]

1. Section 53E of the HRC Act sets out the matters to be considered and the kinds of orders the Tribunal can make if it finds that discrimination has occurred. Section 53E(2) provides that the tribunal must make one or more of the orders mentioned in the subsection, including that the person complained about pay a stated amount of compensation for any loss or damage suffered by the other person because of the discrimination. In this case, the only relief the complainant seeks is damages for financial loss, comprising her accommodation expenses paid to UniLodge for the three years she resided in Canberra and the HECS fees for which she is liable for the 15 units she undertook towards the Bachelor of Physiotherapy degree. If the complainant establishes that direct or indirect discrimination has occurred, she must present evidence that enables the Tribunal to find, on the balance of probabilities, that the discrimination materially contributed to the losses she claims.[14]
2. For the reasons that follow, the Tribunal is not satisfied that the University directly discriminated against the complainant. The Tribunal is satisfied that the University's refusal to allow her the additional time for Viva exams for which her RAP provided was 'unfavourable treatment' within the meaning of section 8(2) of the Discrimination Act, but the Tribunal is not satisfied that the unfavourable treatment was because of her disability.
3. The Tribunal is not satisfied that the University indirectly discriminated against the complainant. The Tribunal is satisfied the University's requirement that she undertake Viva exams without additional time for the practical component had the effect of disadvantaging the complainant, but the Tribunal is satisfied that the requirement was reasonable in the circumstances.
4. Further, the Tribunal is satisfied that even if the University's conduct did amount to discrimination, the complainant has failed to establish the University's conduct materially contributed to the losses she claims. The complainant failed MI1 because she did not practice, study, or prepare adequately for the Viva exams. The extra time she claims she should have received would not have altered the result.
5. Accordingly, the Tribunal considers the complaint must be dismissed.

Events and procedural history leading up to the hearing

1. On 6 January 2020, the complainant filed and served a timeline of events.[15] The timeline asserts that:

(a) the RAP provided to the claimant on enrolment in January 2015 included a 15-minute extension when undertaking Viva assessments;

(b) the RAP applied to 2015 semester 1 and 2 and continued in 2016 semester 1 and 2;

(d) in 2017 semester 2 "my adjustment plans were abruptly removed without explanation";

(e) an email from Professor Jeremy Witchalls[16] to I&E on 18 September 2017 (the contents of which are discussed later) "shows direct discrimination by the education provider because the faculty staff were all aware that I had an adjustment plan in place for three years. The faculty staff were also aware that in my previous viva assessments the additional time was included in the practical component";

(f) the claimant failed her first Viva assessment "due to the abrupt removal of the adjustment plan" and that Professor Witchalls did not provide her with any feedback.

1. In a separate document, also filed on 6 January 2020, the complainant claims that "due to my severe anxiety I was unable to complete the viva assessment on time".[17]
2. The University filed a response to the complaint and a chronology of events on 24 January 2020.[18]
3. On 29 January 2020, the complainant wrote to the tribunal at length, setting out various reasons for 'rejecting' the University's response to her discrimination claim and alleging that an email dated September 2017, upon which the University intended to rely, was fabricated. The complainant alleged that "the University's reply is fraudulent and warrants a full investigation to [sic] the authenticity of such emails that has been produced as evidence in an attempt to dismiss my complaint of direct discrimination."[19] In the same letter, the complainant refers several time to the head of the physiotherapy program, whom she identified as 'Ms Jenni Scarveli', 'Ms Jenni Scraveli' and "Ms Jenni Scravelli".[20] The complainant claims to have been "in close contact" with 'Ms Scravelli' and that "faculty's senior staff, were aware...[she]...was assisting and supporting me because of [sic] the faculty withdrew the additional time for the VIVA assessment". The complainant went on to state:

The emails between myself and Ms Jenni Scravelli, were dated in September 2017, in the same month the so called email has been dated, therefore why wasn't the head of physiotherapy Ms Jenni Scravelli also produced as evidence, raising questions as to the legitimacy of the so called emails.

Ms Jenni Scravelli may no longer be the head of the physiotherapy program, even so, the university had the responsibility to contact such an important senior staff member... since a student has complained of discrimination. However, it seems, it wasn't in the university's best interest to do so, and decided to ignore the emails that proves why I had failed the VIVA assessment, because the university abruptly withdrew the additional time that I was allowed for the VIVA assessment.

Unfortunately, the day the university received my discrimination complaint, I lost access to my university email account. The university intentionally barred me from using my account to download further emails for evidence to the tribunals.

As such, I am also requesting to permission to access my university emails to be able to download the emails between myself and the head of the physiotherapy program to prove to that I have been discriminated on the basis of my disability. [errors in original]

1. On 29 January 2020,[21] and again on 12 February 2020,[22] the complainant wrote to the tribunal reiterating her claim that the University had directly discriminated against her and commenting on documents and the University's response. On the second occasion, the complainant wrote:

Please note, that due to the complexity of the case, the contradicting information provided by the university and the bullying while [sic] a student to remove the additional time, I am now having legal representation to act on my behalf, I suffer from severe anxiety, and would be unable to cope with such intimidation from the witnesses. Further, I will NOT be taking the stand due to medical advice. I believe there is sufficient evidence in the Respondent's response for the tribunal to make a fair and reasonable decision to the outcome of my complaint/claim.

1. On 16 April 2020, the University filed an application for summary dismissal of the complaint pursuant to section 32(2) of the ACAT Act, on the grounds that the complaint was frivolous or vexatious, or lacked substance.
2. The application precipitated a flurry of emails from the complainant in which she responded to the University's submission.[23] She also filed an application for a suppression order pursuant to section 39 of the ACAT Act.
3. On 30 April 2020, the tribunal, constituted by Senior Member Orlov, heard the applications. The hearing was conducted by WebEx. [24] The complainant appeared by telephone, having previously informed the tribunal that she did not have access to a computer.
4. Whether it was the complainant who appeared by telephone on that day and a subsequent occasion, or her mother, becomes important later.
5. At the start of the hearing, an ACAT registry staff member telephoned each party from the telephone located in the hearing room to commence the hearing. The audio recording of the hearing records the staff member saying: "Is this Despina?" to which a female voice responds, "Yes, it is" after which there is the following exchange:

Senior Member Orlov: Ms Andreopoulos, you are appearing in person?

Response (female voice): Yes, you mean right now or in the courtroom. I am confused.

Senior Member Orlov: You are representing yourself?

Response (female voice): Yes, correct. That's correct.

1. At various times during the hearing, Senior Member Orlov addressed the person participating as the complainant by name. The person did not say anything to contradict the impression that it was the complainant who was participating in person.
2. The tribunal made orders pursuant to section 39 of the ACAT Act prohibiting, until further order, publication of matters contained in documents filed with or received by the tribunal and requiring any hearing to take place in private. The tribunal dismissed the University's application for summary dismissal and made orders for the filing and service of evidence. The tribunal discussed evidentiary issues with the parties to ensure the complainant had a fair opportunity to obtain evidence that may support her claim. Commendably, Ms Cuthel, who appeared for the University, agreed to enquire about the present whereabouts of "Professor Scravelli"[25] and a person whom the complainant was able to identify only as "Cheri", both of whom the complainant said could give evidence favourable to her case. The complainant described "Jenni Scravelli" as "the head of physiotherapy at the time when I started".[26] This was captured in a notation to the orders.
3. On 13 May 2020, the tribunal, constituted by Senior Member Orlov, held a directions hearing with the parties by telephone to confirm their readiness for the hearing, which was listed for two days commencing on 25 May 2020. At the start of the directions hearing, an ACAT registry staff member telephoned the parties from the telephone located in the hearing room. The audio recording records the staff member saying: "Ms Andreopoulos?" to which a female voice responds, "Yes" after which there is the following exchange:

Senior Member Orlov: Ms Andreopoulos, can you hear me?

Response (female voice): Yes, thank you very much Senior Member, I can.

1. In reply to the tribunal's enquiry whether the complainant would be legally represented at the hearing, the person replied, "I will appear by myself".[27]
2. The person participating as the complainant reiterated that she was unable to obtain access to a computer and that she would have to appear by telephone. Ms Cuthel, appearing for the University, submitted that the University was concerned that the person holding herself out to be the complainant was not Ms Andreopoulos, but her mother. The tribunal responded that a serious allegation of that kind must not be made without prior notice and without a proper basis. The tribunal informed the complainant that she was not required to do anything in response to the University's submission.
3. On 21 May 2020, the University filed an ex-parte application for an order that the complainant be required to appear by visual medium and for a suppression order in respect to the University's submissions in support of the application.[28] The evidence in support of the application included examples of the writing style of the complainant and the complainant's mother, particularly the tendency of the latter to capitalise words for emphasis in emails, letters written by medical practitioners referring to the mother's mental health issues, including a letter written by the complainant in support of a scholarship application to the University that referred to such issues and a video recording of the complainant's Viva exam in MI1 on 10 October 2017.[29]
4. On 22 May 2020, the tribunal, constituted by Senior Member Orlov, ordered the complainant to appear at the hearing by video link for the purpose of being identified visually and by voice and, in the event of non-compliance, that the tribunal would hear submissions as to how the matter should proceed, including whether the complaint should be dismissed as an abuse of process. The tribunal refused to grant the University's application for a suppression order and directed that the application and submissions be served on the complainant by 5:00pm that day.
5. On 23 May 2020, the complainant informed the tribunal that her mother,[30] Effie Terzakis, held a power of attorney authorising her to represent the complainant in proceedings before the ACAT. The power of attorney is dated 6 June 2017[31] and, although given in connection with a rental dispute, is expressed to be ongoing. The complainant first remembered giving a power of attorney to her mother on 23 May 2020, when she was checking the ACAT rules after being served with a copy of the University's application and the tribunal's orders.[32]
6. Ms Cuthel, on behalf of the University, emailed three documents to the tribunal and the complainant on 24 May 2020 at 12:56pm,[33] the relevance of which she explained as follows:

Please find attached three attachments which relate to the Applicant's application and award of the UC Foundation Scholarship for Students with a Disability, awarded in 2015. We are bringing this to the Tribunal and Applicant's attention as we may seek to cross examine the Applicant in relation to these documents. These documents are relevant to the Applicant's allegations in respect of her enrolment as raised in her human rights complainant [sic] which was provided to the Tribunal upon referral to the Human Rights Complaint [sic].

In addition, noting the applicant has foreshadowed an application to be represented by her mother Effie Terzakis, the Tribunal may wish to consider this material in the event of that application.

Further we request that the Applicant has the materials including the statements of the Respondent's witnesses and their attachments on hand for the duration of her evidence, as we will be referring to some of these attachments in cross examination...

1. One of the attachments was a letter from the complainant to the University in support of her scholarship application, in which the complainant wrote:[34]

I have been raised by my single mother who suffers from a psychiatric condition. As such, I have been economically disadvantaged from an early age because my siblings and I were always in need of financial assistance.

1. The complainant replied by email at 1:12pm on the same day,[35] foreshadowing an application to appoint a litigation guardian. On the issue of cross examination, the complainant stated:

However, what ever decision the Tribunal decided there will be no direct cross examining only through either my representative or my litigation guardian.

As you have legal knowledge the reason why a court appoints a litigation guardian is because that person has no legal capacity or mental capacity as such the person appointed then is cross examined not the person with the disability. [errors in the original]

1. In a further email to Ms Cuthel at 2:06pm on 24 May 2020,[36] the complainant reiterated that "the hearing may be adjourned depending on what the University agrees to because I am also requesting an order that all cross examination goes through either my representative or my litigation guardian..."
2. An email sent to Ms Cuthel at 2:37pm on the same afternoon, purporting to be from the complainant, but which the Tribunal considers was written by her mother,[37] asserted:

Furthermore, please be advised that the information that you have provided about my mother's past illness is not the fact and was not the fact I had written this due to believing so, therefore in the MORNING I am OBTAINING A MEDICAL PROFESSIONAL WHO KNOWS MY MOTHER WELL AND WILL CLARIFY THE MATTER IN HAND. THIS MEDICAL DOCUMENT WILL VERIFY THAT AT NO STAGE DID MY MOTHER HAVE A MENTAL ILLNESS AS I HAVE WRITTEN. THIS WAS MY MISTAKE AND I BASED THIS ON THOUGHTS BUT NO FACTS.

Further to this I INVITE THE UNIVERSITY OF CANBERRA TO SUBPOENA INFORMATION REGARDING ANY PSYCHIATRIC TREATMENT. AS THE CASE WILL NEED TO BE ADJOURNED FOR THIS INFORMNATION TO BE DELIVERED TO THE TRIBUNAL. [Emphasis in original]

1. In a series of emails to the tribunal on the morning of the hearing, 25 May 2020,[38] the complainant filed two applications for interim or other orders. The first sought an order pursuant to section 47(3) of the ACAT Act appointing a litigation guardian or alternatively, staying the proceedings until a litigation guardian could be appointed. In support of the application the complainant filed a 'Consent and Undertaking by Person to Act as Litigation Guardian' signed and dated by her mother on 24 May 2020. The second application sought orders restricting the ambit of cross-examination by the University and an order that "all questions are made through and only to my representative / or my litigation guardian".
2. The complainant's submissions in support of the application for appointment of a litigation guardian were contained in an email sent to the tribunal at 5:08am on 25 May 2020.[39] The submissions stated in part:

Finally, my mother has made an application to be my litigation guardian, as such, upon Gretta finding out send by email on Saturday my application for the disability scholarship [sic]. Please note, that the university had requested each applicant to write a short reason why this scholarship is important, as such i wrote = I have been raised by a single mother who suffers from a psychiatric condition and that I have been economically disadvantaged from an early age and in need of financial assistance. As you can see these words were a cry for help and emotional plea as the scholarship money was 2500 dollars. As such, I am more than happy to take an oath that my mother has never been diagnosed with disorders.

1. The information supporting the complainant's scholarship application included letters from the complainant's treating doctor and her mother's treating doctor, confirming the truth of the complainant's statement about her mother's medical condition. The evidence to the Tribunal does not provide any basis to think that the letters from the medical practitioners are not authentic, or that the information they contain is false.

1. On 25 May 2020, the hearing commenced again by WebEx. The complainant appeared with her mother. The following exchange happened at the start:

SENIOR MEMBER ORLOV: Now, I see that the applicant is there. Is that Despina Andreopoulos? Would you identify yourself, please?

MS ANDREOPOULOS: Yes. My name is Despina Andreopoulos and I'm the applicant.

SENIOR MEMBER ORLOV: Right, and the person sitting on your left?

SENIOR MEMBER ORLOV: All right. Now, would you identify yourself, please. That's Mr [sic] Terzakis, is it?

SENIOR MEMBER ORLOV: All right. Now, Ms Cuthel, I can see you.

MS CUTHEL: Yes, senior member, it's Ms Cuthel. I've also got Deputy General Counsel of the university, Ms Lauren Pinkerton.

SENIOR MEMBER ORLOV: Now, Ms Terzakis, I take it from your voice that you're the person that I've been speaking to in the several directions hearings that we've had in this matter?

SENIOR MEMBER ORLOV: So, Despina, are you saying that you're the person that I've been speaking to?

MS ANDREOPOULOS: Yes, and I've allowed my mum to speak on behalf of me as well.[40]

1. The Tribunal has listened carefully to the audio recordings of the interlocutory hearings before Senior Member Orlov on 30 April 2020 and 13 May 2020 and watched the video of the complainant's Viva exam on 10 October 2017 in which her voice, tone and manner of speaking is readily apparent. We have compared what we heard and observed there with the voice, tone and manner of speaking of Ms Andreopoulos and her mother at the hearing. We are satisfied that the person who identified themselves as the complainant and spoke at the interlocutory hearings on 30 April 2020 and 13 May 2020 was Ms Terzakis and not Ms Andreopoulos. Ms Andreopoulos did not speak on either occasion. Her presence, if she was present, was not disclosed to the Tribunal.
2. Shortly after the start of the hearing, the following exchanges occurred. We have set out the relevant parts of the transcript at some length because they exemplify how Ms Terzakis' conducted herself at the hearing, which ultimately led to the complainant withdrawing:[41]

SENIOR MEMBER ORLOV: Now, Ms Andreopoulos are you going to be conducting this hearing or is your mother?

MS ANDREOPOULOS: No, I've asked if my mum can do on behalf of me, if it's okay.

MS ANDREOPOULOS: Just I don't feel confident, I don't feel - yes. I get - - -

SENIOR MEMBER ORLOV: No, please stop, please stop. So I'm asking some questions of your daughter and I'd like to hear from her. In due course I'll ask some questions of you, all right, but please don't interrupt your daughter and please don't interrupt me. Thank you. Please go on, Despina.

SENIOR MEMBER KATAVIC: Ms Terzakis, I also - can you please not speak to your daughter while she's giving her answers?

MS TERZAKIS: Firstly, I need to say that under the law here - I've actually got the write-up of the authority - unless someone in the tribunal has to put - has to put an order in that I cannot, then we're going to have to subpoena and we're also going to have to get a litigation guardian.

So at this moment, at this present time, I put the - I've got the authority. Sorry, so that's how it is. We're just going by the law here. So, Member Orlov, yes, I understand, but I'm not going to be intimidated by the others, and we've got the right here just like every other person in every other tribunal since there's a power of attorney in place. It is valid and therefore I'm allowed to be on daughter's behalf.

SENIOR MEMBER ORLOV: Yes. Ms Terzakis, let me make some things perfectly clear to you and to your daughter. Firstly, I'm satisfied that the power of attorney is regular and therefore you are, at least for the moment, authorised to appear on behalf of your daughter.

Secondly, notwithstanding that your daughter has an authorised representative, the tribunal is entitled to require her to appear before the tribunal and if necessary to answer questions. Thirdly, if the tribunal is satisfied that it's appropriate to do so, I can make an order which requires you to cease acting as your daughter's authorised representative and - - -

SENIOR MEMBER ORLOV: No, please do not interrupt me, please do not interrupt me, and if you continue to interrupt me, I will make such an order. I want to be clear about that. Now, the next point is that your authority under the power of attorney operates only if and to the extent that your daughter is not under a legal disability, so that - - -

MS TERZAKIS: Yes, but she is - Member Orlov, I'm sorry, she is. We didn't get enough time to file all the relevant applications here. My daughter needs a litigation guardian. She is under a legal disability. I mean, she hasn't got a legal disability person. So that's just - I'm not going to - I've had enough with all the University of Canberra, what they've done to my daughter. We've been traumatised and therefore we've got the right to bring all the documents to a tribunal.

If you want to adjourn it, we're more than happy because my daughter needs a litigation guardian and he will ask the court - and we've got the psychiatrist reports and everyone else to prove it. In fact VCAT easily appoints us immediately.

SENIOR MEMBER ORLOV: Ms Terzakis, I'm going to ask you, and for your daughter, to listen very carefully and not interrupt, and I'm telling you this in your daughter's interest. Okay?

Now, firstly, I told you that I accept, or the tribunal accepts, that you are, at least for the moment, an authorised representative because of the - you hold the power of attorney. However, rule 41(4) of the ACAT rules allows you to act as the authorised representative of your daughter only if she is a person who does not have a legal disability. So, if you assert - - -

MS TERZAKIS: She can say the matter but she does - - -

SENIOR MEMBER ORLOV: Do not interrupt me. Do not interrupt me, and please listen carefully. If your daughter does, or you assert that she does have a legal disability, firstly, you have no authority to act on her behalf and - - -

SENIOR MEMBER ORLOV: Your daughter cannot appear through you as her power of attorney. Secondly, we would have to determine now on the available evidence whether your daughter is in fact a person who suffers from a legal disability, and thirdly, if the tribunal finds that she is a person who suffers from a legal disability, it would be necessary for the tribunal to order somebody to be appointed as her legal guardian or litigation guardian. And I can indicate to you now that the tribunal would not appoint you - - -

SENIOR MEMBER ORLOV: - - - the litigation guardian.

MS TERZAKIS: I don't have a problem at all with that, at all.

1. Rule 41(4) of the ACT Civil and Administrative Tribunal Procedure Rules 2020 (ACAT Rules) permits only a person who does not have a legal disability to be represented by a person who holds a power of attorney. A person with a legal disability (i.e. a person who is not legally competent) must have a litigation guardian appointed under rule 47 of the ACAT Rules.
2. The Tribunal ascertained that Ms Andreopoulos wished to proceed with the application for the Tribunal to appoint a litigation guardian. The Tribunal stated that it required to hear from her without interruption from her mother and that if her mother continued to interrupt, the Tribunal would terminate her authority to act as her daughter's representative. Ms Terzakis continued to whisper in her daughter's ear, prompting a further warning from the Tribunal.[42]
3. The Tribunal advised Ms Andreopoulos that she would be asked to give some evidence in relation to the issue of competency. Ms Andreopoulos gave an affirmation and was asked the following question:[43]

SENIOR MEMBER ORLOV: Now, you understand that the application that your mother wishes to make is to declare you as being legally incompetent. I understand that you are or have been receiving some psychiatric consultations or treatment. Can you tell us about that, please?

1. Ms Terzakis interrupted immediately and continued to interrupt, preventing her daughter from answering the question, prompting a final warning from the Tribunal, leading to the following exchange:[44]

SENIOR MEMBER ORLOV: Ms Terzakis, I'm going to give you a last chance. Pursuant to rule 45(1), I may by order stop an authorised representative from taking any part in the proceeding. If you interrupt one

more time I'm going to make that order. Is that clear?

MS TERZAKIS: Senior Member, if you'd like to make that order, it's your wish. Like I said, what - what's happening today, I will be taking it with her doctors and I'm going to be appealing it.

SENIOR MEMBER ORLOV: Right, but do you understand that if you interrupt one more time, I'm going to make that order, then the matter will continue and you will be asked to leave the room. Is that clear?

MS TERZAKIS: And my daughter is coming with me as well, she'll be coming with me.

SENIOR MEMBER ORLOV: It's in your interests that your mother not interrupt you. We are proceeding to hear your matter, so you need to speak to your mother, and please do so in Greek to maintain privacy but - - -

MS TERZAKIS: Can we have five minutes, please? No, sorry, I - I need five minutes with my daughter. Okay?

1. The Tribunal granted short adjournment. Ultimately, the hearing did not resume until about 1:05pm. Ms Andreopoulos resumed giving evidence. Ms Terzakis could be seen whispering to her daughter as she attempted to answer the Tribunal's questions. When asked to stop, Ms Terzakis again commenced to argue with the Tribunal.
2. The following exchange occurred:[45]

SENIOR MEMBER ORLOV: I'm about to make a ruling, so if you would listen carefully.

On 6 June 2017, the applicant, Despina Andreopoulos, appointed her mother - - -

MS TERZAKIS: If you're going to make a ruling now, I'm going to leave the tribunal. My daughter is coming with me, sir. I'm letting you know that she's coming with me.

SENIOR MEMBER ORLOV: - - - Efthemia Terzakis, as her attorney for the purposes of acting on behalf of her daughter in relation to proceedings before the ACT Civil and Administrative Tribunal and her being named as a party. The power of attorney is expressed to be ongoing and accordingly, for the purpose of the present application, which is before the tribunal pursuant to a referral from the ACT Human Rights Commission, Ms Terzakis is the authorised representative of the applicant. Through the course of this morning's hearing, Ms Terzakis has repeatedly interjected and in various ways disrupted the hearing.

I am satisfied that the continued involvement of Ms Terzakis as the authorised representative of the applicant is not conducive to the fair and just determination of the issues in these proceedings. I am satisfied that the continuation of the involvement of Ms Terzakis as the authorised representative of the applicant would be inconsistent with the objects of the Act, that is, the ACT Civil and Administrative Tribunal Act, and some of the objects of the rules. Accordingly, I make an order, pursuant to rule 45(1), that that authority of Efthemia Terzakis to act as the authorised representative of Ms Andreopoulos is withdrawn.

Now, Ms Andreopoulos, it's a matter for you how you wish to proceed. We are hearing the matter and I strongly suggest to you that it's in your interest to participate and that your mother is to take no further part in the proceeding. Is that clear?

1. Ms Terzakis continued to interject and disrupt the hearing, resulting in a direction that she must remove herself from the hearing immediately.[46] This led to the following exchange:[47]

SENIOR MEMBER KATAVIC: It seems we're getting nowhere. Senior Member Orlov has been trying to explain to you how this is going to proceed. Now, there are two things that can happen. The first is, based on the material that you have filed over the weekend, the tribunal can consider the request that's been made for the appointment of a litigation guardian. It can do that now on the material that we have.

In addition to that, you should be aware that the tribunal can proceed to hear this matter today in your absence if you choose to remove yourself from the hearing. That means that it can continue to deal with it in your absence and then the tribunal will make a decision finally about the merits of your case and make any orders that it considers appropriate after considering the evidence that it's got.

Now, you have a choice to make. We can make a decision now about the application for the appointment of a litigation guardian and tell you what those findings are orally, and then if you choose to participate or not after that, that's a matter for you, but you should know that the tribunal has considered that it will participate with or without you.

SENIOR MEMBER KATAVIC: Now, you need to tell us what you want to

do. Now, we can decide that first, deal with it. That means we don't want any further interruptions from your mother.

SENIOR MEMBER KATAVIC: And then we can deal with one thing and the next, but you should know, as I said, this will go on. If you choose to not participate any further, we will continue. Okay?

MS ANDREOPOULOS: Yes, okay. Thank you. Do I answer now or - - -

SENIOR MEMBER KATAVIC: If you are able to. I've given you a choice about what you want to do.

MS ANDREOPOULOS: I choose to have a litigation guardian.

SENIOR MEMBER KATAVIC: You'd like us to consider that application, would you?

1. Following a further brief adjournment, the Tribunal resumed and refused the application to appoint a litigation guardian and gave oral reasons.[48] The Tribunal also stated:[49]

SENIOR MEMBER KATAVIC: Having regard to those findings, the tribunal is not satisfied that the applicant has established that she has a legal disability, therefore the application to appoint a litigation guardian is dismissed. In relation to the question of participating with a power of attorney, an order has already been made by the tribunal that Ms Terzakis is prevented from taking any further participation in this hearing. If she no longer wishes to continue, the tribunal can continue this hearing without the participation of the applicant and it can continue to hear the application and make a decision in her absence.

1. The Tribunal explained to the complainant and her mother that, pursuant to section 44 of the ACAT Act, the Tribunal had power to proceed with the substantive hearing in the complainant's absence. The mother did not remove herself from the hearing. She moved out of view of the video but remained audible and eventually terminated the connection.
2. Senior Member Orlov telephoned Ms Andreopoulos' mobile number and spoke briefly to her mother. The transcript records Senior Member Orlov saying to the other persons in the hearing:[50]

SENIOR MEMBER ORLOV: Well, I don't know if that came through on the transcript, but that was the applicant's mother indicating that they're going off to have a litigation guardian appointed.

1. The Tribunal proceeded with the hearing. The respondent sought leave, which was granted, to make an oral application pursuant to section 32 of the ACAT for orders dismissing the application on the grounds that it was an abuse of process, or alternatively, lacked substance.

1. The Tribunal received into evidence all of the documentation the complainant provided to the tribunal to ensure that everything upon which she conceivably may have wished to rely was available to the Tribunal.[51] Much of the material comprises assertions and submissions rather than evidence in the strict sense. The complainant did not provide a witness statement setting out her evidence-in-chief, although the tribunal's earlier directions required her to file and serve of all of the evidence on which she intended to rely. Nor did she provide a witness statement setting out her evidence-in-reply to the witness statements of the University's witnesses. However, as the rules of evidence do not apply, the Tribunal stated that it would decide matters of relevance and weight for itself, rather than waste time on objections.[52] The University was content for the Tribunal to proceed on that basis.
2. The University tendered evidence in support of the application for summary dismissal and in answer to the complaint as a whole, including a substantial body of evidence going to the issue whether the University's requirement that the complainant complete the Viva exams without additional time for the practical component was reasonable in the circumstances.[53] The evidence included the video of the complainant's Viva exams on 10 October 2017 [exhibit R12] and 7 February 2018 [exhibit R13] and signed witness statements from the following persons:

(a) Scott Pearsall, Dean of Students and Director of Student Life, dated 1 May 2020 [exhibit R4].

(b) Tom Arthur, Senior Inclusion Advisor, Inclusion & Engagement at University of Canberra, dated 4 May 2020 [exhibit R5].

(c) Dr Bernie Bissett, Discipline Lead in Physiotherapy at University of Canberra, dated 3 May 2020 [exhibit R7].

(d) Dr Angie Fearon, Clinical Assistant Professor, Physiotherapy, dated 9 May 2020 [exhibit R8].

(e) Ms Hayley Torabi, Senior Equity and Diversity Consultant, The Australian National University, dated 7 May 2020 [exhibit R9].

(f) Professor Jennie Scarvell, Associate Dean Research and Innovation, dated 6 May 2020 [exhibit R10].

(g) Dr Irmina Nahon, Professional Practice Coordinator and Senior Lecturer Physiotherapy at University of Canberra, dated 21 May 2020 [exhibit R11].

1. The Tribunal directed that a series of relevant emails from the complainant to the tribunal dated 23, 24 and 25 May 2020, which the University of Canberra did not wish to tender, should form part of the evidence but not be treated as part of the complainant's case.[54]
2. The University made some preliminary submissions about abuse of process on 25 May 2020. However, the substantive application was heard on 26 May 2020. The Registry staff of the ACAT emailed an invitation to Ms Andreopoulos to observe or participate in the hearing by WebEx. The start of the hearing was delayed until 10:07am to give her an opportunity to log in. However, she did not do so, and the hearing proceeded in her absence.

The University's application for summary dismissal of the complaint

1. Section 32(2) of the ACAT Act confers power on the tribunal, among other things, to dismiss the whole or part of an application if the tribunal considers the application is frivolous or vexatious, lacking in substance, or otherwise an abuse of process.
2. The principles that apply to an application for summary dismissal in a discrimination matter were restated recently in Cheluvappa v University of Canberra (Cheluvappa), as follows:[55]

(5) In an application, the respondent bears the onus of showing that the complainant's case ought not be allowed to proceed...

(6) For a dismissal or strike out to succeed, a respondent must show...that the complainant's case is obviously hopeless and untenable or that it could on no reasonable view justify relief. The Tribunal's power to dismiss or strike out a complaint should however be exercised with caution and consistently with the objectives of the Act.

(7) In dealing with a dismissal or strike out matter a clear distinction must be drawn between the complaint or claim itself and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.

(8) A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where the respondent can show a defence sufficient to warrant the summary termination of the complaint.

(9) The Tribunal should not apply technical, artificial, or mechanical rules in coming to a view about the case that a complainant wishes to advance.

Two additional comments should be made. First, if the material before the Tribunal shows that there is a dispute between the parties as to a fact in issue and the material does not assist the Tribunal to resolve the dispute, then it would be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.

Second, if the respondents have satisfied the Tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element essential for the complainant to prove in order to substantiate the complaint at a full hearing, then the complaint or the relevant part of the complaint should be dismissed or struck out.

1. We have applied these principles in considering the University's application.
2. The University outlined the grounds for the application as follows:

MS CUTHEL: Now, we are making an application this morning to request ACAT consider striking out the applicant's application, on the basis of two grounds within section 32 of the ACAT Act, specifically, abuse of process, which is subsection (2)(c) and that the complaint lacks substance.

Now, I just want to commence by acknowledging that the submissions that we are about to make, in relation to the abuse of process, are largely concerned with the complainant and not the complaint.

The abuse of process, we say, that relates to the complainant, demonstrates, we say, such a substantial question in relation to her conduct that it warrants a dismissal of the application in totality. Our submissions, in relation to a lack of substance, relate directly to the complaint. It is the university's position that the information before the tribunal demonstrates, on two distinct grounds, that the matter should be dismissed.

As we say, firstly, that the complainant has engaged in an [abuse of] process and, secondly, that the complaint sent to the tribunal, and the evidence that forms part of the complaint, is so lacking in substance that it warrants dismissal. Put together we say the university ultimately submits that in these very highly unusual circumstances it has reached the high threshold required to warrant a section 32 dismissal.[56]

1. The University submits that section 7 of the ACAT Act requires the Tribunal, in exercising its functions under the Act, is to ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice, and to observe natural justice and procedural fairness. The University points to aspects of the complainant's conduct which it submits interfere with the Tribunal's ability to achieve these objectives, particularly to achieve justice. The University submits that, viewed as a whole, the complainant's conduct amounts to an abuse of the process of the tribunal.
2. The circumstances upon which the University relies include the following:

(a) The University has been "consistently concerned" that the complaint was not brought by the complainant, but by the complainant's mother. Although the complainant's evidence to the Tribunal establishes that the complainant has legal capacity and that she knowingly participated in making the complaint, it was her mother who had appeared by telephone at the interlocutory hearings and held herself out to be the complainant. The University has significant concerns about being required to respond to a complaint that appears to be driven by the complainant's mother.

(b) The complainant did not disclose to the Tribunal or the University that she was being represented by her mother, or that her mother was authorised to do so pursuant to a power of attorney. If that had been disclosed earlier, the University would have objected on the basis that the complainant's mother is a person with impaired decision-making capacity, which automatically revokes the power of attorney pursuant to section 63 of the Power of Attorneys Act 2006.

(c) The complainant stated, in connection with the application for her mother to be appointed as her litigation guardian, that her scholarship application to the University was, in effect fabricated, as it related to her mother's medical condition. The University submits in respect to this:[57]

MS CUTHEL: The respondent's concerns about the scholarship application are substantial. On one hand, if the scholarship application is not fabricated it supports our position that the complainant's mother may have had impaired decision making capacity and therefore was completely unsuitable to at any time act for the complainant under the power of attorney, not that we were aware that she was using that. Further, and perhaps more concerning for the present application, is that the complainant is prepared to make the very serious application that this application for a scholarship was fabricated, in order to further her position at the tribunal hearing, the point of which being that her mother was able to represent her.

(d) The University submits that there are other examples where the complainant, with the significant involvement of her mother, "either purposefully or recklessly made unsubstantiated submissions"[58] to further her position at the expense of the University, including making "serious allegations of professional misconduct against [Ms Cuthel] and the University, [that] are either false or completely reckless"[59] as to their truth or falsity.

(e) The University submits also that there are issues as to the authenticity of signatures purporting to be the signature of the complainant on official documents provided to the University and the tribunal,[60] giving rise to "concerns that the original complaint referral from the Human Rights Commission wasn't even signed by the applicant".[61]

1. The Tribunal summarised the University's submission as the inability of the Tribunal to achieve justice consistent with its principles based on the way in which either the complainant has conducted herself or been prepared to conduct herself or permitted Ms Terzakis to say and do things purportedly on her behalf or with her knowledge in the course of the proceedings. [62]
2. The University did not direct the Tribunal's attention to any authorities on what conduct may amount to abuse of process.
3. In Michael Wilson & Partners Limited v Nicholls, the plurality observed that the term "abuse of process of the court" may be used in many senses and stated:

As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW), "[what] amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings "instituted for an improper purpose", and to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." [63]

1. In Tomlinson v Ramsey Food Processing Pty Limited, the plurality stated that "abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute".[64]
2. The Tribunal notes that the power given by section 32(c) of the ACAT Act is conditioned expressly on the tribunal being satisfied that an application - in this case, the complaint - is "otherwise an abuse of process". The Tribunal must be satisfied that the conduct of the complainant is such as to result in the complaint being an abuse of process.
3. The Tribunal makes the followings findings in relation to the complainant's conduct:

(a) The complainant does not lack legal capacity.[65]

(b) The complainant prepared the complaint together with her mother[66] and had input into communications with the tribunal.[67] Whether or not the complainant was the author of all or some of the communications, they were made with her knowledge and consent.

(c) The complainant's mother held herself out to be the complainant on both occasions when she appeared by telephone at the interlocutory hearings on 30 April 2020 and 13 May 2020, with the complainant's knowledge and consent.[68]

(d) At all material times before the tribunal made an order on 22 May 2020 requiring the complainant to appear in person by video so as to be identified visually and by voice, the complainant intended that her mother should appear in her place at the hearing. Assertions that the complainant did not have access to a computer and was able to appear only by telephone were intended to facilitate this and to conceal the fact that it was the mother and not the daughter, who was appearing.

(e) The mother's conduct cannot be explained or justified on the basis that she was authorised by the power of attorney to appear on her daughter's behalf and to represent her in proceedings before the ACAT. First, the complainant did not recall that she had given her mother an ongoing power of attorney until 25 May 2020.[69] Second, the authority conferred by the power of attorney did not authorise the mother to mislead the tribunal by participating in interlocutory hearings as if she was the complainant appearing in person.

(f) The late application for a litigation guardian to be appointed, which the Tribunal has found lacked substance, was precipitated by the tribunal's order requiring the complainant to appear in person, thus exposing the deception, rather than the existence of any genuine basis for the assertion that the complainant lacked legal capacity.

1. The Tribunal considers that the complainant's conduct referred to in (c) to (f) above falls into the category of invoking the tribunal's procedures for an illegitimate purpose and amounts to an abuse of process. If the purpose of the conduct had been achieved - i.e. to mislead the Tribunal as to the true identity of the individual holding themself out to be the complainant at the hearing - the Tribunal considers that public confidence in the administration of justice would have been undermined.
2. However, the purpose of the complainant's conduct was not achieved. The intended deception was exposed before any irreversible damage was done. The Tribunal accepts that the complainant's conduct may have contributed to forensic and practical difficulties for the University to identify and answer the complainant's case and may have resulted in the University having to do more work and incur more costs than might have been the case if the complainant had run her case differently. However, we do not accept that such difficulties rise to the level of being "unjustifiably oppressive" to the University. The substantial body of evidence the University prepared for the hearing demonstrates that the University was able to overcome the difficulties. Further, the University did not submit that the complainant's conduct has caused unreasonable delay or obstruction.
3. For the University's application to succeed, the Tribunal must be persuaded that the complainant's conduct prevents the Tribunal from doing justice between the parties.[70] We do not accept that the complainant's conduct has that effect. An issue the University raised at the outset, and the primary reason the University gave for seeking to have the complaint dismissed as an abuse of process, is a concern that the University is disadvantaged by being unable to cross-examine the complainant on matters where her honesty and credibility was likely to be in issue.[71] Clearly, the complainant's conduct is relevant to an assessment of those matters. The complainant's withdrawal from the hearing means that her 'evidence' cannot be tested. We accept that the Tribunal's task of making factual findings may be more difficult in those circumstances, but the difficulties are not insurmountable as the balance of these reasons demonstrate.
4. As Gordon J stated in UBS AG v Tyne[72] (although Her Honour was in the minority):

The onus of satisfying the court that a proceeding is an abuse of process is a "heavy one". Although the power to grant a permanent stay is one to be exercised "only in the most exceptional circumstances", the exercise of the power can be justified by considerations which may include finality, fairness, and the maintenance of public confidence in the administration of justice.[Citations omitted]

1. We are not satisfied that the complaint should be dismissed for abuse of process. The University has not established that the Tribunal is unable, in the events that happened, to achieve justice between the parties. Although the circumstances may appropriately be described as "exceptional", nevertheless the Tribunal does not consider that dismissing the complaint as an abuse of process, without considering the complaint on its merits in circumstances where all of the evidence is before the Tribunal, is justified by considerations of finality, fairness or the maintenance of public confidence in the administration of justice.

Section 32(b) - the 'lacking in substance' ground

1. The University's submissions do not address the requirements for a discrimination claim under sections 8 and 18(2)(c) of the Discrimination Act, or the evidentiary requirements under section 53CA of the HRC Act, nor did the University take the Tribunal to any relevant authorities.
2. Critically, the University's submissions do not focus on the onus of proof under section 53CA(2) of the HRC Act - namely, whether the material comprising the complainant's 'evidence' was sufficient to enable the Tribunal to decide, in the absence of any other explanation, that the complainant had been treated unfavourably because of her disability, or that the University's requirement had the effect of disadvantaging her, so as to give rise to a rebuttable presumption that direct or indirect discrimination had occurred.
3. The University's submissions refer, in broad terms, to the lack of material to support the claims and focussed primarily on the answers provided by the University's evidence. This is understandable given the University's description of working overnight "trying to determine what exactly were the facts in issue in this matter because they were so contrasting, so varied and difficult to determine whether or not they were true".[73]
4. As the principles applying to summary dismissal in discrimination cases discussed in Cheluvappa[74] make clear, the onus lies on the University to satisfy the Tribunal that the complainant's case is so lacking in substance that it should not be allowed to proceed - i.e. proceed to a final hearing on the merits. We are not satisfied that the University has done so. The Tribunal is not satisfied the complaint should be dismissed for lacking substance.
5. Applications of this kind normally are made before a respondent incurs the time, trouble and expense of preparing evidence for a final hearing, as happened earlier in this case when the University sought and was refused an order that the complaint be dismissed on the grounds that it lacked substance. The context in which the present application is made is different. All the evidence is before the Tribunal. The Tribunal is able to decide the complaint on its merits. We see no utility in deciding separately whether the complaint lacks substance in the sense necessary to justify an order under section 32(2) of the ACAT Act. Doing so at this late stage, in our view, would not be consistent with the objects in section 6(c) and (d) of the ACAT Act. In the present circumstances, where all of the evidence is before the Tribunal, a proper exercise of the Tribunal's discretion under section 32(b) is to decide the issues on the merits considering all of the evidence.

1. The Tribunal therefore must find the relevant facts from all the available evidence. The task of piecing the story together has been considerably more time consuming and difficult because of the lack of a comprehensive, agreed bundle of emails and other documents, organised chronologically, upon which both parties relied. Not all of the evidence to which we refer below is necessarily directly relevant to the determinative issues, as the Tribunal sees them, and, if the hearing had proceeded in the usual way, it may not have been necessary to refer to some emails and other documents in detail, if at all. However, the disparate and disorganised nature of the material upon which the complainant said she intended to rely, and the fact that the hearing was conducted in her absence, means that doing justice between the parties requires the Tribunal to take a much more inclusive approach to relevance than may have been necessary if the hearing had been conducted in the presence of both parties.
2. We have given primary significance, wherever possible, to contemporaneous documents, including emails and written records of oral communications. It is well recognised that contemporaneous documents generally are a more reliable source of evidence of events, than witnesses' recollections written down for the first time several years after the events in question. This is particularly so in this case, where evidence the complainant might have given must be distilled from written submissions to the HRC and the tribunal, much of it tendentious, and the evidence of the respondent's witnesses, although in the form of signed statements, was unsworn in a formal sense and was not tested in cross-examination.

The regulatory framework for making reasonable adjustments

1. We have referred earlier to the fact that the complainant enrolled as a student in the Bachelor of Physiotherapy degree at the University in 2015 and that, upon enrolment, she registered with I&E. I&E is required to work with students with disabilities and ongoing health conditions to determine reasonable adjustments where appropriate.[75]
2. Reasonable adjustments must balance a broad range of factors set out in the Disability Standards for Education 2005 (Education Standards or Standards) and the University of Canberra's Disability Policy.
3. The Education Standards is a legislative instrument formulated by the Commonwealth Attorney-General under 31 of the Disability Discrimination Act 1992 (Cth) and came into effect on 18 August 2005. The Standards set out a process to be followed, to ensure that students with disability are given opportunities to realise their potential by participating in education and training on the same basis as other students. An education provider is required to make any decisions about admission, enrolment or participation on the basis that reasonable adjustments will be made where necessary so that the student with a disability is treated on the same basis as a student without the disability. [76]
4. Section 32 of the Disability Discrimination Act makes it unlawful for an education provider to contravene the Education Standards. However, pursuant to section 34, if an education provider acts in accordance with the Education Standards, Part 2 of the Act (which prohibits disability discrimination) does not apply to the acts.
5. Part 3.3 of the Education Standards provides for making reasonable adjustments. Paragraph 3.3 (Adjustments) states:

For these Standards, each of the following is an adjustment:

(a) a measure or action (or a group of measures or actions) taken by an education provider that has the effect of assisting a student with a disability:

(i) in relation to an admission or involvement - to apply for the admission or enrolment; and

(ii) in relation to a course or program - to participate in the course or program; and

(iii) in relation to facilities or services - to use the facilities or services;

on the same basis as a student without a disability, and includes an aid, a facility, or a service that the student requires because of his or her disability;

(c) If a change is made to an adjustment mentioned in paragraph (a) or (b) - the adjustment as affected by the change.

(1) For these Standards, an adjustment is reasonable in relation to a student with a disability if it balances the interests of all parties affected.

(2) In assessing whether a particular adjustment for a student is reasonable, regard should be had to all the relevant circumstances and interests, including the following:

(b) the views of the student or the student's associate, given under section 3.5;

(c) the effect of the adjustment on the student, including the effect on the student's:

(ii) ability to participate in courses or programs; and

(d) the effect of the proposed adjustment on anyone else affected, including the education provider, staff and other students;

(e) the cost and benefits of making the adjustment.

(3) In assessing whether an adjustment to the course of the course [sic] in which the student is enrolled, or proposes to be enrolled, is reasonable, the provider is entitled to maintain the academic requirements of the course or program, and other requirements or components that are inherent in or essential to its nature.

Before the education provider makes an adjustment to the student, the education provider must consult the student, or an associate of the student, about:

(b) the extent to which the adjustment would achieve the aim mentioned in paragraph...5.2(2)(b), 6.2(2)(b)...in relation to the student; and

(c) whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student.

1. The aims mentioned in paragraph 5.2(2)(b) and 6.2(2)(b), in essence, are to ensure that the student is able to participate in the courses, programs or learning experiences provided by the educational institution, and use the facilities and services provided by it on the same basis as a student without a disability.
2. Paragraph 3.6 (Deciding on an adjustment to be made) states:

In deciding whether to make a particular reasonable adjustment for a student, the education provider must:

(a) assess whether there is any other reasonable adjustment that would be less disruptive and intrusive and no less beneficial for the student; and

(b) assess whether the adjustment may need to be changed over the period of a student's education or training.

1. The University's Disability Policy[77] was prepared having regard to the requirements of section 40B(1)(b) of the Human Rights Act 2004, which makes it unlawful for a public authority to make a decision without giving proper consideration to a relevant human right. Relevantly, section 27A of the Act provides that everyone has the right to have access to further education and vocational and continuing training.
2. The principles set out in the Disability Policy include:
   1. The University will ensure that reasonable adjustments are made to ensure that people with disabilities have access to and participate in the academic, occupational and/or social activities of the University. In cases, where the adjustment could bring unjustifiable hardship on the University, it may be deemed that the University is not obligated to provide the requested or recommended adjustment.
   2. In making reasonable academic adjustments, the University will ensure that the academic integrity of courses and programs offered is maintained to the appropriate standards.
   3. The University will promote access to employment and education for people with a disability, maintaining consistency with the merit principle.
3. Implementation of the policy is stated to be the responsibility of all staff and students at the University. A note at the end states that students requiring an adjustment should discuss their needs for academic adjustment with a University Inclusion Advisor in the first instance and that adjustments will be made in line with legislative requirements.

1. The following summary is based on evidence of Mr Tom Arthur, the Senior Inclusion Advisor in I&E at the University of Canberra.[78]
2. A student's RAP is designed in consultation with the student, information from their treating practitioner and the course requirements. A student's RAP is a live document, in the sense that it may be amended from time to time for a variety of reasons, including changes in the student's circumstances and course requirements. Amendments are done in consultation with the student and sometimes relevant staff in the course or programme the student is undertaking.
3. Mr Arthur states:[79]

RAP's are not amended based solely on feedback from a faculty alone. However, if a faculty contacts us, or the student, and raises concerns about a RAP then we will discuss this collaboratively. The student may consent to an amendment to the RAP on this basis. The process for an amendment of a RAP involves the consent of the student, whether that be in person, via the phone or an email. We then amend the RAP and send it to the student via their student email account.

1. A student's RAP may not necessarily be applied prescriptively to every assessment and may be applied differently depending on the assessment task. This is discussed with the student when the RAP is first drafted and should be clearly expressed[80] in the language of the document.
2. Mr Arthur states:

In some cases, adjustments that are implemented require further discussion with the relevant school and student. We take on board academics' knowledge of the accreditation and inherent requirements in a course when determining adjustments, but these are not the defining factor.

1. Students are not required to sign their RAP, including if it is amended later. They are required only to sign a consent form and distribution form upon registration with I&E.

The complainant's RAP issued in semester 1, 2015

1. Hayley Torabi and Tom Arthur shared responsibility as the complainant's contact with I&E from 2016, until Ms Torabi went on maternity leave in April 2017. It is unclear who was the contact at I&E in 2015. Ms Torabi was the complainant's primary point of contact in 2016.[81] Mr Arthur was her point of contact in the second semester of 2017, when the events giving rise to the complaint happened.
2. The complainant was issued her initial RAP in April 2015, at around the start of the first semester, in which she undertook the following units: Introduction to Statistics, Introduction to Physiotherapy and Regional Anatomy and Physiology. The RAP remained unchanged until it was amended in the second semester of 2016.
3. The initial RAP did not provide adjustment for Viva exams. The RAP provided the following adjustments for in-class tests and end of semester exams: [82]

Additional time for Moodle quizzes: 7 minutes per 20 minutes (35 sec per minute)

1. The complainant passed all her units in the first semester of 2015. In the second semester she undertook two units - Biochemistry of Exercise, which she passed and Neuromuscular Interventions 1 (NM1), which she failed and had to repeat in 2016.[83] The assessment for NM1 included a Viva exam of 20 minutes duration.

The complainant's amended RAP issued in semester 2, 2016

1. The unit convenor for NM1 in 2016 was Dr Angie Fearon. NM1 covers the basic concepts of assessment and management of musculoskeletal and neurological conditions. Students learn how to assess the active and passive range of movement of a joint and the muscle length and strength of muscles that cross the joint. Students also learn about assessing gait and common gait variations associated with musculoskeletal and neurological pathologies, how to test reflexes and how to evaluate sensory changes. Assessment in NM1 consists of weekly online (Moodle) quizzes, a Viva exam in week 10 and an end of year written exam. The Viva exam approximates a real-life interaction between a patient and a clinician. Students are provided with a written scenario to evaluate during 'reading/thinking time', followed by a face-to-face assessment with a fellow student acting as a 'patient' and a staff member as the examiner. The Viva assesses the student's clinical knowledge and technical ability.[84]
2. Dr Fearon explains the content of the Viva exam in NM1 as follows:[85]

The viva exam in NM1 involved a student presented with a highly simplified patient scenario. The clinical reasoning aspect of the exam expected students to be able to differentiate, at a single joint, between one of three problems: a problem that was due to a joint issue, a muscle strength (or lack thereof) issue, or a muscle length issue. It was not a full clinical format exam. This means that students were given a highly structured and simplified scenario. Students were not asked to undertake a subjective assessment or to perform special orthopaedic tests at the affected joint. They were not asked to assess the joint above or below (standard practice in full clinical assessments) or to provide a differential diagnosis. Following screening movements, students were expected to perform, at a specified joint, one active and one passive range of movement test, one or two muscle length tests and/or one or two muscle strength - a total of four tests. Further, students were provided with a few leading questions, and some kind words (e.g. to "stop, breathe, think about the basics") should they be having difficulties gathering their thoughts. Following this, students were asked to provide the "patient" with one appropriate exercise.

1. On 12 August 2016, Dr Fearon wrote to the complainant asking after her welfare, as she had missed the first week of classes in NM1. The complainant did not respond. Dr Fearon followed up with further emails on 26 and 29 August 2016.
2. The complainant replied on 1 September 2016, stating that she had "not been feeling the best" but would be attending tutorials from next week. She continued:[86]

I have done this unit with Cherie last year so I am familiar with all the tutorials.

I have done the tutorial questions and case studies from each week and was wondering if I could also make an appointment to see you so that you can go over my answers with me? To make sure I am going on the right page. [errors in original]

1. On 2 September 2016, Dr Fearon replied:[87]

I will address your points in the order you have raised them.

I know that people can overcome fear and embarrassment - the difficulty is that maybe trying to get through the physio course and dealing with your issues simultaneously is, in my opinion, a fraught exercise. What I mean by that is, do you want to have this discussion with a new unit convenor every semester for the next 3 or 4 years? Do you really want to put yourself in that situation?

You failed the unit last time. Indeed you did undertake this unit - but you did not pass it.

I am wondering if you have worked out why this was the case. You are unlikely to improve your understanding by yourself. If it was due to absences - you have missed 1/3 of the semester - you are at risk of failing a second time (sadly). You also need to be aware that content changes, as does the delivery - you will have missed some of this. I don't want to sound mean, but you may like to consider withdrawing before the end of today.

As with all students, there is a drop in time, late Thursday afternoon - you are welcome to come then along with the other students - with specific questions. As with others who have been unwell, it is your responsibility to catch up with the content by asking your colleagues - it is not my responsibility to check your work. So, no, I will not be going over four weeks' worth of work with you.

Thanks for being honest about your embarrassment and fears. What you describe is really tough. I think you have some difficult decisions to make in the short term.

1. Later the same day, the complainant wrote:[88]

Yes, I understand I would like to discuss with you my disability adjustment plan. I really do not want to withdraw because I need to pass so I can continue next year again, I have been studying every night for this unit, I feel embarrassed coming into a small group of a class as I get social anxiety quite often. Yes I would love to improve but I struggle when it comes to presenting in front of people I do not know and I am trying to find a way to combat this fear but it is really difficult for me when all my family lives in Melbourne.

1. On 3 September 2016, the complainant's mother wrote to Dr Fearon, accusing her of humiliating and victimising her daughter and asserting that the following clause would be added to her daughter's RAP that week:[89]

Despina will be allowed to present her viva's [sic] and any other presentations, to a small group, that will include ONLY her educators, rather than to a whole class of peers.

1. On 5 September 2016, Dr Fearon reissued the invitation for the complainant to meet with her and advised that she had been in touch with an I&E staff member who was happy to attend the meeting to support the complainant and provide them with assistance.[90] The I&E person was Ms Torabi.
2. On 6 September 2016, Ms Torabi wrote to the complainant, introducing herself as the I&E team leader and suggesting a meeting to discuss "the most recent request for additional adjustments" to her RAP.[91]
3. The complainant wrote to Dr Fearon on 7 September 2016, advising that she had not been feeling well and had only just arrived back in Canberra after visiting her family in Melbourne. [92] On the same day she asked to see Dr Fearon to discuss the upcoming Viva exam.[93]
4. An adjustment for the upcoming Viva exam must have been discussed in the following days. On 10 September 2016, the complainant wrote to Ms Torabi asking whether she had informed Dr Fearon that "I need the 10 mins added to the practical component. I do not need the 5 mins extra reading time".[94]
5. The complainant met with Ms Torabi on 12 September 2016. They discussed the complainant's condition and how it affected her studies. Towards the end of the meeting they were joined by Dr Fearon.[95] Dr Fearon remembers the meeting as follows:[96]

[The complainant] presented as shy, and a bit nervous. We discussed the unit, and I thought I had allayed her fears in relation to her fellow students. At the end of that meeting [the complainant] and I agreed that I would meet her outside the tutorial room prior to the next tutorial so that she didn't have to come into the room on her own. Also, we agreed that, if asked, we say she'd been unwell, so hadn't been to class. I do not recall us discussing the viva at this meeting.

1. The complainant did not attend class after the meeting.
2. Dr Fearon received an email from the complainant's mother on 25 September 2016 claiming that her daughter was entitled to receive an additional 10 minutes for the Viva exam.[97] Dr Fearon replied on 28 September 2016, in an email addressed to the complainant, stating:

Thank you for your email regarding the Viva exam. Your RAP notes that you may have additional time for Moodle assessments...Viva assessments are designed to simulate a clinical placement, with appropriate modifications to take into account the year level of a student. As a result, your viva duration will not be amended. There will be a 10 minute reading time followed by a 20 minute practical assessment. There will be three other students reading with you (no talking will be allowed). During the practical component, there will be one student acting as a patient for you, so that you can demonstrate your skills, and the examiner (myself). Please note that I have allocated you to be a patient for the next student. If this is a problem for you I can change this.

1. On 6 October 2016, Ms Torabi and Melanie Kovacs, the Manager of Inclusion and Welfare, previously known as I&E, met with Dr Bernie Bissett, and Dr Fearon to discuss an additional adjustment for the Viva exams. The evidence does not explain what led to the meeting, but we infer that either the complainant or her mother was not happy with decision communicated by Dr Fearon on 28 September 2016. To maintain consistency, we have continued to refer to Inclusion and Welfare as I&E.
2. Dr Fearon said that she and Dr Bissett "advocated firmly to preserve the Viva exam in the current format as we were concerned about the impact it would have on the integrity of the course, the safety of patients that [the complainant] would come into contact with and her own competence when she undertook clinical placement."[98] Dr Bissett's evidence was to similar effect.[99]
3. Ms Torabi's file note of the meeting states:

Discussed that Despina has condition which impacts on reading, writing, concentration, memory with a recommendation of 30 minutes per 60 minutes extra in exams. Discussed complexity around viva exams and adjusting time in these. Discussed essential requirements in these assessments including ensuring student meets safety assessment and completes the assessment in a mock environment as they are expected to do on clinical placement. I advocated for Despina to receive extra time in both reading prior to practical assessment, and extra time in practical component. It was negotiated that due to the nature of the assessment, 5 minutes extra reading (50% extra) and 5 minutes extra in the practical component (25% extra) will be provided. RAP to be adjusted to reflect this. This will need to be negotiated on a unit by unit basis dependent on unit requirements.

1. Ms Torabi wrote to the complainant later the same afternoon, stating:

I will be modifying your Reasonable Adjustment Plan to reflect this as an ongoing adjustment. However, please be aware that this may need to be negotiated each semester depending on specific viva requirements in each unit as they differ between units and years.[100]

1. Shortly after, Dr Fearon wrote to the complainant about the arrangements for her Viva, which was scheduled for the following week. The email stated:

In line with what Inclusion and Welfare have recommended I have amended your viva start time by bringing your reading time forward 5 minutes. Start reading time at 9:55am on Wednesday 12th of October. The practical component time will also increase by 5 minutes. It will start at 10:10am and run for 25 minutes. Normally students become patients/models for the following student. While Hayley and I didn't discuss this I am willing to arrange for someone else to do that for you [if you] would rather not take part in that aspect of the viva.[101]

1. The next day, the complainant's mother wrote to Dr Fearon:

However, Hayley [Torabi] and Melanie [Kovacs] have incorrectly read the recommendation of her Doctor. I have communicated to both informing that they misread the Doctor's recommendation. As soon as Despina forwards the third-party consent, whether they want to or not they need to discuss Despina's welfare with myself and her Doctors, as we have her best intentions. In the meantime, though please be advised, that Despina's wish is to have the 10 mins added to her Practical. Not the extra five minutes added to the reading time. Despina will also let you and Hayley know as soon as possible. Therefore, it will be 10 mins added to her practical only, that is where she feels the need for the extra time.[102]

1. The complainant's mother mentioned the earlier email from Dr Fearon to the complainant on 29 August 2016 (see earlier in these reasons) and continued:

The above, could be interpreted by different people, differently, in my opinion you are suggesting that Despina is too weak for this profession. As such, please understand that assuming you fail her on her upcoming VIVA for what you believe may be valid reasons. In accordance to your advice on the 29 August, in her second attempt, there will be a formal letter sent to the Vice principal requesting that an independent qualified assessor be in the room when you are assessing Despina for a second time. As its my opinion, that maybe you may be marking her harshly, perhaps to prove the point of a fraught exercise. Nevertheless, I do hope that this is not the case, but in case it is.

1. We consider the allegation made against Dr Fearon to be completely unfounded.
2. The complainant did not undertake her scheduled Viva exam on 6 October 2016. On 10 October 2016, she emailed a medical certificate to Dr Fearon and requested the Viva be rescheduled to the following week. She reiterated that she needed 10 minutes of extra time for the practical component and not an extra 5 minutes of reading time.[103]
3. On 11 October 2016, Ms Torabi wrote to Dr Fearon, Dr Bissett and Professor Scarvell, to inform them that the complainant had provided additional medical documentation and it was necessary to ascertain whether the complainant's request for additional time was reasonable and, if not, the reasons why not. [104] Dr Fearon replied by email, suggesting that 10 minutes extra for the practical component (effectively a 50% increase) "is likely to provide the student with an unfair advantage over the other students". Dr Bissett agreed, stating:

...a 50% increase in available time for a practical exam of this nature is beyond the realms of reasonable adjustment and extends into the territory of an unfair advantage. This is particularly the case given the inherent requirements of the practical task being assessed, where management of time and efficiency is an assessable component. A 50% increase in allowable time would also set an unmanageable precedent for other practical exams across the curriculum where a 50% increase would unfairly advantage a student and be prohibitive (most definitely beyond the limits of reasonable) for staff administering such exams.

We believe we should stand by the negotiated 25% increase (5 minutes) as of our meeting last Thursday and perceive this to be an upper threshold of the adjustment that should be allowed for a practical exam of this nature.

1. However, the final decision rested with Professor Scarvell, at the time the Head of School of Health Sciences and Discipline Lead in Physiotherapy. Following a conversation with Ms Torabi on 12 October 2016, Professor Scarvell agreed that a 50% increase in time for the Viva exam was a reasonable adjustment in the circumstances. She confirmed the basis of the agreement in an email to Ms Torabi on 12 October 2016, which was copied to Dr Fearon and Dr Bissett, in which Professor Scarvell wrote:

Thank you for the very constructive conversation today. I would like to clarify with you my understanding and what we agreed. You have advice from Prof Fleming, Dean of Students. Rachelle has confirmed there is adequate medical grounds to determine that a 50% increase on the practical exam provides reasonable adjustment.

You have asked me to confirm how this impacts on the integrity of the degree. Physiotherapy is a clinical degree and patient care is the first priority for clinicians. The viva exams are our closest assessment to clinical practice, and assess whether students are ready to go into practice. This assessment includes the effectiveness and efficiency of the Student as a clinician. Patients are usually unwell or elderly, fatigue quickly and need treatments to be efficient. In first year viva exams are short and skills based. In second and third year they are longer and clinical reasoning as well as skills based (45 mins). I am happy to agree to 50% increase in viva time for a first-year student on a short exam, but in pre-clinical viva exams I would place a cap of 15 minutes maximum allowable extra time. This is clinically appropriate. A cap of 15 minutes of extra time for any viva exam (clinical exam) would maintain the integrity of the degree while allowing reasonable adjustment.[105] [Our emphasis]

1. Although the complainant was now in her second year of the course, NM1 was a first-year unit. We discuss the relevance of the last sentence later.
2. Professor Scarvell's email also discussed communications with Ms Terzakis, the complainant's mother. Professor Scarvell advised that no third-party consent for the release of private information relating to the complainant had been received and confirmed that the University would not communicate directly with Ms Terzakis and would not respond to emails from her sent from the complainant's University email account.
3. On 18 October 2016, Ms Torabi wrote to Professor Scarvell advising that she had met with the complainant and modified her RAP to provide "Recommended 50% additional time is applied (maximum of 15 minutes additional time allowable)" and that a new RAP would be distributed automatically via email to her unit conveners that week. She also advised that the claimant provided a signed consent for I&E to communicate with her mother about her support needs and University studies until the end of the second semester of 2016. The email stated that "this will be reviewed on a semester-by-semester basis".
4. We mention this because Ms Torabi said in her witness statement that, when discussing the amended RAP with the complainant on 18 October 2016, "it was discussed that this would be reviewed on a semester by semester basis to ensure consistency of the RAP with the inherent requirements of the course".[106] However, neither Ms Torabi's file note of the meeting,[107] nor the earlier mentioned email to Professor Scarvell on 18 October 2016 provides support for this. Both indicate that the matter to be reviewed on a semester-by-semester basis was the consent for I&E to communicate with the complainant's mother. Previously, Ms Torabi had advised the complainant in an email sent on 6 October 2016 that the adjustment negotiated at that time "may need to be negotiated each semester depending on specific viva requirements in each unit as they differ between units and years". However, the evidence does not establish whether the complainant was informed on 18 October 2016 that this was intended to apply also to the adjustment approved by Professor Scarvell.
5. An amended RAP for 2016 Semester 2 was issued and emailed to the complainant on 19 October 2016.[108] The amendments to the previous RAP issued for 2015 Semester 1 included: (a) extensions of up to 7 days for assignments (previously none); (b) additional time of 10 minutes (instead of 7 minutes) per 20 minutes for Moodle quizzes; (c) additional time of 30 minutes (instead of 20 minutes) per 60 minutes for in-class tests; additional time of 30 minutes (instead of 20 minutes) for exams; and "Extra time for viva exams (clinical exams). Recommended 50% additional time is applied (maximum of 15 minutes additional time allowable)."
6. The Viva exam for NM1 was rescheduled to 24 October 2016.[109] The evidence does not establish how the complainant performed in the Viva exam. However, she obtained an overall pass for the unit with a mark of 56.[110]

The complainant's RAP issued at the start of semester 2, 2017

1. The complainant deferred her course in 2017 semester 1, after withdrawing from Unit 8890 - Electrophysical Agents. She resumed her studies in the second semester. Ms Torabi was on maternity leave and responsibility for liaising with the complainant on behalf of I&E was taken over by Mr Arthur.
2. On 11 August 2020, Mr Arthur emailed the complainant forwarding a copy of the RAP that would apply to 31 December 2017.[111] The adjustment for Viva exams was identical to the RAP issued on 19 October 2016. The covering email stated:[112]

For the VIVA exams, you receive 50% additional time up to a maximum of 15 minutes. This is due to governing body and accreditation purposes for physiotherapy. The Faculty advised us previously this is the maximum allowed.

1. Mr Arthur says in his witness statement that he believes the complainant reasonably would have assumed that she would receive additional time for Viva exams based on the RAP.[113] We agree.
2. Mr Arthur suggests that he issued the RAP in error, not realising the basis of the previously agreed adjustment for Viva exams and being unaware that the complainant had deferred her studies in the first semester of 2017. As a result, he reactivated the complainant's RAP from semester 2 of 2016 without change.
3. The suggestion that the RAP was issued in error assumes that the previous RAP was intended to apply only to the Viva exam in NM1. We discuss whether this is correct in the next section.
4. Regardless whether the RAP was issued in error, the RAP was valid for all enrolled units until the validity date stated on the plan, which was 31 December 2017.[114]

Academic staff refuse to allow additional time for Viva exams

1. Two of the units in which the complainant enrolled in semester 2 were Cardiothoracic Interventions 1 (CI1) and Musculoskeletal Interventions 1 (MI1). The assessment for both units included Viva exams. Dr Bernie Bissett was the unit convenor for CI1. Professor Jeremy Witchalls was the unit convenor for MI1.
2. Professor Witchalls explains in his witness statement that the assessments in MI1 include a written exam and two Viva exams that are designed to mimic real time treatment of a patient and prepare students for clinical placement the following year. The assessable components of the Viva exams include professional communication skills, professional demeanour and efficient and effective clinical assessment processes.[115]
3. The Unit Outline for MI1[116] states that "students will learn the clinical reasoning and practical skills required for assessment and intervention" and describes the learning outcome as follows:
   1. Undertake a subjective and objective patient assessment and from the information plan and implement a simple treatment program.
   2. Develop basic knowledge and skills in effective selection, safe implementation and delivery of a basic range of treatment interventions.
   3. Apply methods of measuring the outcome of these interventions.
4. On 6 September 2017, the complainant's mother emailed Professor Witchalls "to let you know Despina's RAP for this semester. Her reasonable adjustment plan apply changes to assist with her anxiety. Mainly, extra time, to complete her assessments. However, one of these changes requires the support of her learning within small groups. As her anxiety affects her concentration and performance ability in large groups."[117]
5. On 17 September 2017, the complainant's mother emailed Professor Witchalls again "just to let you know that you have not included the 15 mins additional time for her VIVA" and requesting him to change the timetable to include the additional time for the mock Viva and the Viva exam. She stated:

I understand that VIVA's are a very important part of her learning process, and that is why there has been an adjustment made to assist the student to learn with confidence and to be stronger and quicker for the real patient time, and also to achieve a pass.

There is a need for an adjustment, and the nature of an adjustment has been determined in consultation with all concerned as well as the faculty.

1. On 17 September 2017, Mr Arthur wrote to the complainant, stating "It is imperative we meet tomorrow morning to discuss the VIVA exam". Presumably this was prompted by an earlier communication from one of the academic staff.
2. In the morning on 18 September 2017, Professor Witchalls wrote to Mr Arthur:[118]

I have been made aware that Despina Andreopoulos has been told that she can have extra time for a viva exam. This has not been the case historically. The viva exam we run in physiotherapy is a normal clinical interaction. The students are modelling an interaction with a patient, during which they examine and treat a person in real time. To achieve the necessary assessment aims, it has to be run under normal clinical conditions, including clinical practice time periods. For this reason, we have not ever granted a student an extended time to perform a clinical viva. Can you let me know the basis on which Despina has been told otherwise, please? I have to confirm a final viva timetable by close of business today.

1. Shortly after, Professor Witchalls wrote to Mr Arthur, again stating:[119]

Further to my earlier email, I have had a discussion with the other unit convenors for clinical units that Despina is studying this semester, and with our Discipline Lead. Please see the email from Bernie Bissett, below. She was present when an extension was negotiated on Despina's behalf during semester 2, 2016. The extension granted to Despina for Neuromuscular Interventions (8978), was specific to the viva within that unit. It was negotiated on the basis that this viva it is not a full clinical practice format, so an extension was granted for that specific assessment piece. This did not apply to Despina's whole course, it will not be applied within the clinical units this semester. I would appreciate if you could correct this on her file, and let Despina know this through the proper channels, in whatever format I&E recommends. I would also like to take this opportunity to alert you to the fact that her mother is still sending us emails through Despina's account. I am not sure whether this is the best line of communication with Despina, if she wishes for confidentiality or self-determination in these matters, and I would appreciate your advice on Despina's preferred methods for communication.

Was the RAP issued in semester 2, 2016 intended to apply to NM1 only?

1. The email from Dr Bissett to which Professor Witchalls referred, stated in part:[120]

I was present at the meeting with I&W with Angie Fearon in 2016, where (with great reluctance on our part) it was negotiated that Despina could have an additional 15 minutes for the NM1 practical exam. However, this was NEVER meant to be an ongoing precedent, and we strongly stressed that when Despina got to 2nd year, this would not be the case due to the nature of vivas in MI1 and CI1. It is very upsetting that I&W appear to have taken this 15 minute provision as an ongoing arrangement, Angie and I could not have been more clear that this was not supposed to be the case.

1. There is an obvious tension between Dr Bisset's recollection of events (although it is an accurate statement of her and Dr Fearon's position at the time) and the contemporaneous record of Professor Scarvell's agreement with Ms Torabi that, for pre-clinical exams in second and third year, "a cap of 15 minutes of extra time for any Viva exam (clinical exam) would maintain the integrity of the degree while allowing reasonable adjustment". Professor Scarvell reiterates in her witness statement that:

We discussed balancing the RAP with the preparedness for clinical placement. I explained to Ms Torabi that whilst I was open to an adjustment for a first-year exam but for the second and third-year exams I would only agree to a cap of 15 minutes maximum allowable.

1. It is that agreement that was the basis upon which the adjustment was made in the modified RAP issued for 2016 semester 2. We do not accept that the adjustment was intended to apply only to Neuromuscular Interventions 1, as Dr Bissett contended in her email to Professor Witchalls. We accept that this reflected Dr Bissett's firmly held opinion as to what should happen, but the terms in which the adjustment was agreed with I&E, and Professor Scarvell's reasons for agreeing that additional time should be capped at 15 minutes maximum, recorded contemporaneously and confirmed in her evidence to the Tribunal, in our view establishes that the adjustment was intended to continue in the following year.
2. We accept, that Professor Scarvell intended that the adjustment should be reviewed each semester to ensure that it complied with the unit objectives and course requirements.[121] The need to do so, in our view, is apparent from the language in which the adjustment is expressed. There is only a "recommendation" that 50% additional time is applied. In contrast, the adjustments for Moodle quizzes and written exams are expressed in absolute terms. The qualification - "maximum 15 minutes additional time allowable" - leaves open the possibility that less than 15 minutes may be allowed, depending on the unit objectives and course requirements, and that the allocation of additional time to the reading and practical components of the Viva exams may need to be negotiated on a case-by-case basis.
3. Professor Scarvell ceased her role as Discipline Lead in Physiotherapy in January 2017 and took up the position of Head of School of Health Sciences. In September 2017 she became Associate Dean of Research and Innovation at the University. Accordingly, the decision whether the reasonable adjustment for Viva exams agreed in October 2016 should continue to apply in the second semester of 2017 was no longer Professor Scarvell's to make. However, the fact that Professor Scarvell considered a maximum of 15 minutes additional time for pre-clinical Viva exams, in the second and third year of the course, to be both clinically appropriate and provide reasonable adjustment for the complainant, is relevant to the assessment the Tribunal must make whether the subsequent removal of that adjustment and the substitution of a different adjustment was reasonable in all the circumstances. We discuss this issue later in these reasons.

I&E consults the complainant before amending the adjustment

1. On 18 September 2017, the complainant's mother wrote to Mr Arthur (possibly prompted by his urgent request to meet with the complainant sent the day before):[122]

Further to our conversation, Despina will make a time as soon as possible.

However, please note that additional time has been recommended by her doctor to enable her to become familiar with the surroundings of a viva, and to gain strength and confidence for the Real patient placement early in 2018.

As mentioned, there is a Mock Viva, and a real marked assessment.

The additional time is required as she gains strength and confidence in both.

In addition, it is a requirement that all education providers give students with needs the same opportunity to participate in education as everyone else.

In Despina's case, Jeremy does not want to give her this opportunity because he says that by giving the extra time she will not be prepared for the Real Time Patient in hospital early 2018. This is baseless, and untrue.

Her placement officer, Irmina Nahon, mentioned to Despina, in a meeting, that 20 students, had failed their hospital placement.

Therefore, on what fact, has Jeremy, based his assertion that Despina will not be prepared for the real patient hospital time if she was allowed the extra time.

In the program, it is a requirement that all students pass their VIVA's prior to gaining Hospital Placement.

Apparently, these 20 students who failed their hospital placement, had passed their school-based viva in the required timeframe, but still failed their hospital placement.

Therefore, Jeremy's assertion, its baseless, unjustified and unfair.

The university is governed by policies, one of them, is to give this student the same opportunity to participate in education as everyone else. [emphasis in original]

1. In her witness statement, Dr Nahon disputes that she ever told the complainant that 20 students had failed their hospital placement. Her evidence is that "I do not discuss failing students with any student. In a pre-clinical lecture, I mention that up to 10% of students fail a placement as a motivation to get students to take placement preparation seriously. This 10% goes across all clinical placements and does not refer to hospital placements only. During the complainant's time in the course this amounted to approximately seven students over all five placements."[123]
2. Mr Arthur met with the complainant on 20 September 2017. His file note of the meeting states in part:[124]

Despina dropped in to speak with IA re VIVA exams. She stated very clearly that she understands receiving additional time for the VIVAs isn't ideal and, therefore, is happy to have the 15 mins removed from her RAP ASAP. Student to possibly request 5 minutes for marked VIVA in approx. 2 weeks; this week's VIVA will be conducted with no additional time at all. IA encouraged she consider removing consent for her mum to speak on her behalf to UC staff and allowing her unlimited access to her email account. Despina apologised for her mum Effie and admits she can sometimes be overzealous with her advocating. RAP amended; email sent to Jeremy, Geetha and Scott P.

1. On the same day, Mr Arthur wrote to Professor Witchalls:[125]

Despina has just dropped into I&E to speak with me regarding her VIVAs. I'm pleased to notify you that she is more than open to negotiating additional time for her upcoming mock VIVA and marked VIVA in approx. 2 weeks time. For her VIVA exam this Friday she doesn't wish to have any additional time. The 5 minutes that everyone receives at the start to review the referral is ok with Despina. When she sits her marked VIVA in a few weeks time, she is happy to drop to only receiving 5 minutes extra reading time on top (depending on how this week goes). If she feels confident after her mock, she will notify you that she doesn't wish to have any additional time at all. If she feels the opposite and this week doesn't go so well, she may request the additional 5 minutes at the start to assist with her reading only. Despina request I make it clear that she is completely aware that when on placement she will not receive any additional support regarding time. She wants to prepare as best she can for May and understands having 15 minutes isn't sustainable. Therefore will attempt this week's VIVA with no extra time; and only request a maximum of 5 minutes for the marked VIVA if she feels it is absolutely necessary. Despina doesn't wish to have preferential treatment and understands the requirements she needs to meet in order to be successful on placement (and with the course in general). I have updated her RAP. A new one will be generated and sent out tomorrow. If anyone has any questions I'm more than happy to discuss.

1. The complainant claimed that the email was a fabrication and that the meeting never happened. She stated in a submission to the tribunal on 29 January 2020:

As such, the fabricated email says that I had attended the inclusion and welfare office [in] September 2017. This did NOT happen, I did not attend any meeting at the inclusion and welfare office. In September 2017, I suffered a mental breakdown therefore it makes no sense that anyone in this state of mind would be able to coherently express words in the manner that has been said by the respondents.[126]

1. Parts of the submission, including the passage extracted above, bear the hallmarks of the mother's writing style. However, the complainant's evidence, which we accept, is that she prepared the complaint and communications with the Tribunal with her mother and we have found earlier that all communications with the tribunal were made with her knowledge and consent.
2. We do not accept the complainant's denial. We find that the meeting happened, and we accept Mr Arthur's file note and email as a contemporaneous record of the substance and effect of his conversation with the complainant.
3. Paragraph 3.5 of the Education Standards requires that the student be consulted before an adjustment is made to the student's RAP. We find that the complainant was consulted appropriately on this occasion.
4. Mr Arthur emailed the amended RAP to the complainant on 21 September 2017.[127] The adjustment is described as follows: "Extra time for viva exams (clinical exams). Recommended 5 minutes additional time is applied for reading".[128]

1. The MI1 mock Viva was held on Friday, 22 September 2017. This tested students on their ability to apply knowledge and content from weeks 1 to 6.[129] Mr Arthur wrote to the complainant afterwards to enquire how the exam had gone, to which the complainant replied, "Not so good. I need more practice. Thank you for asking."[130]
2. Professor Witchalls wrote to the complainant on 23 September 2016, drawing her attention to the final version of the timetable for the first MI1 Viva exam, which was scheduled for 4 October 2017, and advising that "there is scope for you to start your reading 5 minutes early if you needed to use that option".[131]
3. On 3 October 2017, the day before her Viva exam, the complainant provided a medical certificate stating that she would be unfit for normal study or work from 3 to 5 October 2016 due to an unspecified medical condition.[132] She did not attend her Viva exam in MI1 on 4 October 2017.
4. On the same day she emailed Dr Bissett to let her know that she was unable to attend class in CI1 that day or the next, because she was sick. Dr Bissett wrote to her that evening to emphasise the importance of catching up on practical skills of blood pressure and heart rate monitoring in advance of the Viva exam.[133]
5. The complainant missed her Viva exam in CI1, which was scheduled for 9 October 2017. She emailed Dr Bissett in the late afternoon on the day of the exam to apologise for failing to attend, stating that she had been unwell since the weekend.[134]
6. The first Viva exam represented 30% of the total marks for MI1. The unit outline for MI1 provides the following information:

Students will be presented with clinical cases or scenarios and will demonstrate how to take a history, carry out an examination, plan a treatment, carry out a treatment and evaluate its effectiveness. Case studies will include the body areas that the unit material has covered to this date. Tutors will supervise and participate in assessments. Student performances may be recorded on audio and/or video for moderation purposes. A copy of the marking criteria is available on Moodle.

After the exam, students are required to submit a 500-word reflection on their viva within 24 hours of the viva. This is to briefly discuss their perception of their performance in the viva, what they have learned from the experience, and plans for future self-development based on their experience. This item will not contribute to the mark for the viva but is to be used for feedback between the student and their marker. The reflection is to be submitted on Moodle, and mark for the viva will not be released until this item has been submitted. Normal late penalties apply for the viva mark if this item is submitted late.

If a student does not achieve a satisfactory mark (50%), the viva exam will be repeated as soon as possible. If a student has a second attempt, a score of no more than 50% is possible (i.e. if a student achieves 30% at the first attempt, and 75% at the second attempt, a score of 50% percent is recorded for that assessment).[135]

1. The Viva exam was rescheduled to 10 October 2017. Professor Witchalls was the examiner. The clinical scenario involved the diagnosis and treatment of a wrist injury. The exam was recorded on video.[136] The Tribunal has viewed the video, and the following may be observed and heard:

(a) In response to Professor Witchalls' questions about differential diagnosis, the complainant replied often that she was "not sure". She presented as slow, uncertain, unconfident and lacking in knowledge about the subject matter of the exam.

(b) Professor Witchalls' voice and manner was calm, quiet and polite at all times.

(c) At the end of the Viva (47:54 minutes on the video clock) Professor Witchalls said he was "not allowed to talk marks".

(d) Feedback commenced at 48:00. Commencing at 48:26 Professor Witchalls' comments included, "On today though, organisational preparation is more important than your knowledge...took a long time to get to where you were going...detracted from your subsequent performance".

(e) At 49:05, the complainant said "I wasn't thinking confidently..."

(f) At 49:46, Professor Withcalls commented "on students doing rehearsals, that's not something you can learn...so hands on practice is going to be critical for you".

(g) At 51:15, Professor Witchalls said, "the biggest improvement for you is hands on body and do nothing but..." He then gave advice on how the complainant should move forward and manage organisational processes.

(h) Feedback ended at 53:05 minutes. The complainant interacted with Professor Witchalls throughout and appeared to be self-aware and demonstrated no signs of distress.

1. The complainant failed the Viva exam. On 13 October 2017, her mother wrote to Professor Witchalls:

I am writing to you in relation to Despina's VIVA assessment. You have provided a fail mark but not any feedback, unfair and unjustified considering you are aware of the weakness. The feedback is the most important part of her assessment, this way she is able to understand, practice and improve her weakness.

Please understand that it's vital that you do so as soon as possible, especially considering that you have been in contact with her Disability Officer with your concern regarding her extra time for the viva, which I then believe you asked her during the assessment time whether she required the extra 5 mins, fully aware that her Doctor had recommended 20 mins extra time, but was reduced to only 5 mins.

Secondly, it's quite sad that following my email to you regarding her health, you preferred not to reply, even though I kindly asked you to let me know by email, how you perceived her health, as she had a high fever that morning. Any sort of reply would have been nice.

Nevertheless, please provide at your earliest convenience a written detailed feedback so your student is able to understand where she lost her marks [137] [Emphasis in original]

1. The video established that Professor Witchalls provided feedback to the complainant immediately after the exam finished. However, the evidence does not establish whether the complainant submitted the 500-word reflection mentioned in the Course Outline, which had to be done within 24 hours of the Viva exam and was intended to be the basis for feedback between the student and the marker. There is no evidence to explain why the complainant apparently was not given an opportunity to repeat the first Viva exam, as the Course Outline required. However, the complainant does not raise this as an issue, and it is not appropriate for the Tribunal to speculate in the absence of evidence.
2. Emails were exchanged over the next several days between the complainant's mother and Mr Arthur in relation to feedback about the failed exam.[138] In one, the complainant's mother wrote, "Please could you contact Jeremy because Despina does not feel comfortable discussing her failed VIVA with him", to which Mr Arthur replied, "I have emailed him. Please remain calm; I will again request the feedback you require Despina".
3. On 18 October 2017, the complainant's mother wrote to Mr Arthur:

I am writing to you to let you know that its imperative to revert Despina's Reasonable Adjustment Plan back to the 15 mins additional time for her next VIVA assessments.

The additional time was approved by the university in consultation with the Disability Office, and the requested by her treating doctors, but Jeremy her assessor, contacted the Disability office with concerns relating to 15 additional time, and then the RAP was changed to 5 mins.

Subsequently, the student failed her VIVA assessment. Jeremy was then contacted on several occasions to provide feedback, so she is able to understand where she lost marks. Up until today there has been no response, and no feedback.

Kindly note, that Despina's Doctors, provided the university with a written request, recommending 20 mins for her VIVA assessments.

As I have included the head of physiotherapy, Ms Jennie Scarvell, I would like to point out the university's policy and website relating to: The "Disability Standards for Education: A Practical Guide for Individuals, Families and Communities".

In light of the above information, I kindly ask that Despina's Reasonable Adjustment Plan Reverts back to the 15 mins additional time for her next two VIVA assessments.

At this point in time, Jeremy's concerns have no basis, and no ground evidence to prove that Despina will not qualify for a Physiotherapist if she was allowed the 15 mins additional time on her VIVA assessments.

Despina is currently studying the Physiotherapy course, and although the VIVA assessments are in preparation for upcoming hospital placements, may be an indication of how well as student performs in Real Life Hospital Patient Assessment, In Despina's case it is NOT because her anxiety only revolves under assessments when she is in the spotlight.

Therefore, it is imperative the Disability Office reverts her Reasonable Adjustment Plan to the 15 mins additional time for the next VIVA assessments.

As mentioned, this has been recommended by her treating doctors and is a requirement of the Commonwealth Act [139] [errors and emphasis in the original]

1. The Dean of Students and Director of Student Life, Mr Scott Pearsall, and Mr Arthur met with the complainant on 19 October 2017 to discuss the inappropriate nature and frequency of emails from her mother to Physiotherapy staff. An email written by Mr Pearsall shortly after the meeting records a discussion about the following matters:[140]

(b) The complainant's University email account was for her personal use only and for another person to use the account breached the University's ITM Policy and could result in the complainant's user access being suspended.

(c) Physiotherapy staff were not able to provide the complainant's personal information to her mother under privacy regulations.

(d) There was no current consent in place authorising I&E to consult with a third party and, even where such consent was given, it extended only to I&E staff and not to academic staff, and only for the purpose of identifying and providing, or administering, reasonable adjustments.

(e) He had advised Physiotherapy staff that they should not reply to the complainant's mother because of the nature of past emails and privacy issues.

(f) If the complainant had any concerns she should liaise with Mr Arthur and Physiotherapy staff directly and, if her mother wished to raise any issues, she should do so with Mr Arthur.

(g) There was much support for the complainant's learning, both in I&E and Physiotherapy.

1. The email records that the complainant responses included:

(a) Her mother was a source of anxiety for her and her mother's behaviour towards Physiotherapy staff was not helping her.

(b) She was not aware of the "full scope of the quantum and nature" of the emails her mother had been sending.

(c) "[H]er mother was 'crazy' and that she could not control her."

(d) She would change her student password and had done so twice in the past - but her mother would cut off her financial support if she did not provide her with her new password.

I&E consults the complainant before amending the adjustment again

1. Mr Arthur and Geetha Krishnakumar of I&E met with Dr Bissett on 24 October 2017 to discuss varying the adjustment for the complainant's Viva exams. Ms Krishnakumar's file note (from which it is appears that I&E consulted the complainant beforehand) records as follows: [141]

Meeting was held with Bernie Bissett from the physiotherapy team with Tom and myself. We discussed the viva and potential adjustments for Despina. The following points were made by Bernie: 1. The viva is an important predictor of success in clinical placement and is essential to ensuring that students are ready for placement. 2. The time for the practical component of the viva is non-negotiable however some time may be provided during other components such as reading and writing. 3. The faculty is concerned that providing students with adjustments during viva's may compromise patient safety during placement and the academic integrity of their course. The following points were made by Tom and myself during the meeting. 1. The viva is an assessment format that poses a challenge for many students who suffer from anxiety. 2. Despina has documentation from a specialist that requests 20 minutes/40 minutes. 3. The student has requested 10 minutes additional time during the viva - 5 in reading and 5 in practical. 4. The DSE standards require that we make adjustments unless they are unreasonable or they compromise the academic integrity of the unit. 5. While patient safety is important, the viva is being run in an education setting and the student should be allowed some leeway to participate in this assessment and be afforded the opportunity to build her capacity and skills over time. In conclusion, the following steps were agreed: Despina would be offered a 1-1 additional viva session where she could practice and receive some guidance. The faculty may consider 5 minutes additional during reading time and writing time. Tom to discuss these options with Despina. [Our emphasis]

1. Dr Bissett's position that extra time for the practical was "non-negotiable" does not sit comfortably with Professor Scarvell's earlier agreement that a maximum of 15 minutes additional time for a Viva exam in the second and third year of the course was clinically appropriate and would provide reasonable adjustment. The Tribunal notes that the complainant was requesting 5 minutes additional reading time and only 5 minutes additional time for the practical, which was well within the parameters agreed by Professor Scarvell in October 2016.
2. On 24 October 2017, Mr Arthur wrote, in response to an email from the complainant's mother:[142]

Many thanks for raising these points and concerns. We are evaluating Despina's reasonable adjustments to ensure she is receiving the correct supports for all of her classes and assessments. I will be in touch with her very soon regarding these.

1. It appears from the following email exchange that Mr Arthur and Ms Krishnakumar met with the complainant to discuss the adjustment agreed with Dr Bissett.
2. On 1 November 2017, Dr Bissett wrote to Mr Arthur:[143]

Just a quick update regarding a conversation I had with Despina after class yesterday; she confirmed that she is not requesting or expecting any additional time for her CI1 prac exam with us next week. She confirmed she is completely happy with this and understands our reasons for not granting extra time. Thank you for your work with her in making this clear. Despina did mention that she has requested additional reading time for her MI1 exam, and my understanding is that Jeremy and the team has accommodated this request.

If she has made it clear she is happy to proceed as you've stated below, great. Geetha and I have been waiting for her to contact us after we discussed her options last week, but she hasn't thus far. Did she take up the offer of an extra practice session?[144]

1. We infer that the offer of an extra one-on-one practice session was communicated to the complainant in the meeting with Mr Arthur and Ms Krishnakumar. In one of the complainant's emails to the Tribunal, she (or her mother) claimed "This never happened" and that she was "not offered support or additional viva for practice or guidance".[145] In light of the contemporaneous communications we do not accept the complainant's denial. The Tribunal finds that the offer was made but that the complainant did not take up the offer.

1. The second Viva exam in MI1 was scheduled for 16 November 2017.[146] The evidence does not show whether the complainant participated in the mock Viva, which was scheduled for the week before.
2. On 16 November 2017, the day of the Viva exam, the complainant provided a medical certificate stating that she was unfit for normal study or work due to an unspecified medical condition. She missed the Viva exam and the written exam for MI1. Both exams were rescheduled to the University's deferred exam period in February 2018.[147]
3. A letter from the complainant's treating doctor, Dr Dianne Grocott, dated 5 December 2017, provides the following evidence of the complainant's mental state at the time:

Despina Andreopoulos is under my care with a diagnosis of ADHD Attention Deficit Hyperactivity Disorder. This has significantly impacted on her ability to study due to inattention, poor concentration, easily distracted, easily fatigued and fear of failure due to the above.

I concur with the letter dated 15 Dec 2016 by her previous Paediatrician Dr Jarman that she was unable to manage full-time study and that she would qualify for Aus Study (Part-time).

1. The deferred Viva exam was held on 7 February 2018. The examiner on this occasion was Dr Phillip Newman. The exam was recorded on video.[148] The Tribunal has viewed the video and notes the following comments made by Dr Newman during the feedback, which commenced at 44:30 minutes on the video clock.

(a) [44:43] Q: "Have you had a chance to practice...have you been practising with a timer?" A: "No."

(b) [46.20] "Practising to time limits is going to be important for you."

(c) [46:30] "It was too slow, but I don't think that was your biggest issue."

(d) [46:40] "In this case, understanding the mechanism of injury very precisely is absolutely vital in focusing your assessment...you didn't ask anything about mechanism."

(e) [49.55] "...too imprecise with history... everything then becomes very vague... asked very stilted questions..."

(f) [51.25] "It took you 9 minutes to understand which knee was affected..."

(g) [51.47] "I am saying this as feedback. You have failed..."

(h) [52.44] "...lot of things missed that cannot be missed..."

(i) [52.57] "...fairly serious...so you'd be dangerous"

(j) [53.27] "...started physical exam at 27 minutes with 13 minutes remaining...history should be done at the maximum at 12 minutes...most students are finishing at 7 to 8 minutes...and finishing justification at 10 to 12 minutes".

(k) [54.02] "...leaving the Ottawa rules out is not safe."

(l) [55.14] "...observation was vague and disorganised..."

(m) [55.26] "...hand holds...bread and butter...you didn't know where to put your hands".

(n) [55.38] "I don't think there's any other way for you to develop those skills other than for you to come back and to practice it heaps."

(o) [55.44] "I usually say at the beginning of the semester, this unit is like learning to drive for the first time. You can't learn to drive from a book. You can't learn to drive from a back seat. You can't learn to drive from your bedroom. The only way you're going to learn to drive is to get in the driver's seat. So, it's the doing... along with the thinking and the communication. It just is. That's the way we work as physios in the clinic."

(p) [56:54] Complainant: "My main issue is actually practising where my hands should be. Once I get that I'll be more confident, and I won't be worrying about the next part."

(q) [57:15] "In the next units the assessments are much bigger. You've got more joints, more procedures and if you can't be slick and precise..."

(r) [59:09] Feedback ends. The complainant clearly was aware she had failed and the reason for that. She showed no signs of distress during the feedback. The examiner's voice and manner were calm, polite, considerate, and focussed throughout.

1. The complainant failed the Viva exam with a mark of 10/70.[149] She failed the unit with an overall mark of 35.[150]

1. On 9 February 2018, Dr Nahon wrote to the complainant, "I missed you today for our catch up. Hope everything is OK and that we can catch up soon. I worry about you so contact me please."
2. The complainant's mother wrote in reply, in an email copied to other academic staff and the Vice-Chancellor's office:

I am responding as my daughter has had a breakdown which I will be holding the University responsible. I am in the process of obtaining legal advice as I will be pursuing legal action.

Apparently, when she had her deferred viva exam Phil reduced her to tears. He was very harsh but very intimidating and humiliated her to the core. This was explained by my daughter to myself. Since that day she has turned off her mobile phone and disconnected her room phone. As such, I had to have the duty manager to check on her well-being every night.

What Phil did and how he did it, is uncalled for and unwarranted as he knew her fragile state. As mentioned I am in the process of speaking to her specialists, doctors and my lawyer, and I promise you what happened and the way it happened will be dealt with under our justice system.

I am trying my best to have her contract for Cooper Lodge terminated on the grounds of extenuating circumstances that they are not allowing this which is adding to her mental state. As such when I pursue this under the justice system the compensation will also be for financial and personal injury.

1. The video recording of Dr Newman's feedback establishes that the allegation about his behaviour towards the complainant is baseless.
2. On 12 February 2018, Fletcher Beverley, Property Manager - Operations of UniLodge where the complainant had been residing, wrote in an email to the University's lawyers:
   • We were forwarded the email "FW: Catch up" which seemingly had a request for termination from Despina, but also was written by Efthemia. We contacted Despina and requested clarification as to whether it was her wishes to terminate or not. Despina confirmed that she wanted to vacate by Tuesday, 13th of February but that the initial email had been sent by her mother and not her. [emphasis in original]
   • Despina also said that the emails were not reflective of her wishes and she didn't want to "go to court or anything, that's just a thing my mum always says".
   • Despina said that she is intending to take a break from Uni this year but her last exam was on 7th February, which is why she stayed/extended her contract.
   • During our meeting (approx. 10:40) Despina did not come across as distressed and her behaviour seemed typical of her (based on my earlier interactions with her).
   • We have accepted her termination request and her contract ends tomorrow.
3. On 12 February 2018, in an email addressed, among others, to Professor Witchalls, Professor Scarvell, Dr Bissett, Dr Newman and Mr Arthur, the complainants mother accused the University of direct discrimination which she claimed "caused my daughter's mental breakdown. Direct discrimination that caused torment, victimisation, intimidation, mental distress and more." The email foreshadowed legal action for compensation to recover the cost of her daughter's course fees, accommodation expenses and Centrelink debt incurred between 2015 and 2018 and damages for pain and suffering. [151]
4. On 5 August 2019, the complainant, with her mother's assistance, lodged a complaint against the University with the HRC.

1. It is necessary at this point for the Tribunal to examine the factual basis for the complaint in light of the evidence.
2. The complainant alleges that the RAP provided to her on enrolment in 2015 included a 15-minute extension when undertaking Viva exams. The RAP remained in place until the second semester of 2017 when it was abruptly removed without explanation.[152]
3. Contrary to the allegations, the Tribunal finds as follows:

(a) The complainant commenced her studies for a Bachelor of Physiotherapy degree in Semester 1 of 2015. I&E issued her with a RAP that did not provide adjustment for Viva exams.

(b) In semester 2 of 2016, the RAP was modified by agreement between I&E and Professor Scarvell, to include the following adjustment: "Extra time for viva exams (clinical exams). Recommended 50% additional time is applied (maximum of 15 minutes additional time is allowable).

(c) The adjustment was intended to apply also to second and third year pre-clinical units, subject to being reviewed each semester to ensure the adjustment complied with unit objectives and course requirements.

(d) The complainant did not attend University in semester 1 of 2017. She resumed her studies in semester 2 of 2017, in which she was required to undertake two second year pre-clinical units - Cardiovascular Interventions 1 (CI1) and Musculoskeletal Interventions 1 (MI1). Assessment in both units included Viva exams.

(e) At the start of semester 2 of 2017, I&E reissued the previous RAP without change and without prior consultation with the School to determine whether the adjustment complied with unit objectives and course requirements for CI1 and MI1.

(f) In accordance with I&E's procedures at the time, the RAP was valid for all enrolled units until the validity date stated on the plan, which was 31 December 2017.[153] I&E informed the complainant at the time that, for Viva exams, "you receive 50% additional time up to a maximum of 15 minutes".

(g) The complainant reasonably believed this meant she would receive an adjustment of 15 minutes additional time for the first Viva exams in CI1 and MI1, which were scheduled for early October 2017, with mock Vivas to be held the week before.

1. The complainant alleges that an email written by Professor Witchalls to I&E on 18 September 2017 shows direct discrimination by the University because "faculty staff we all aware that I had an adjustment plan in place for three years" and "were also aware that in my previous Viva assessments the additional time was included in the practical component". [154]
2. Contrary to the allegations, the Tribunal finds as follows:

(a) The adjustment, allowing additional time for the practical component, was applied once in semester 2 of 2016 in the Viva exam for Neuromuscular Interventions I (NM1).

(b) The request to allow additional time for NM1 was opposed by the unit convenor, Dr Fearon and by Dr Bissett. Both strongly believed that allowing additional time for the practical component would have an undesirable effect on the integrity of the course, the safety of patients with whom the complainant would come into contact and her competence to undertake clinical placement and may provide the complainant with an unfair advantage over other students.

(c) The request to allow additional time for NM1 was opposed initially by the Discipline Lead, Professor Scarvell. Following intervention by the then Dean of Students, Professor Rachelle Fleming, Professor Scarvell agreed to the adjustment on the basis that "a cap of 15 minutes of extra time for any Viva exam (clinical exam) would maintain the integrity of the degree while allowing reasonable adjustment".

(d) Dr Bissett and Dr Fearon were copied into all relevant email communications. It is reasonable to infer that they were made aware of Professor Scarvell's decision and the reasons for it.

(e) Professor Witchalls, the unit coordinator of MI1, became aware on 17 September 2017 that the complainant expected to be given additional time for her upcoming Viva exams in MI1. He discussed this with Dr Bissett who was unit coordinator of CI1. Both strongly believed that to achieve the assessment aims it was necessary for Viva exams be held under normal clinical conditions, including clinical practice periods.

(f) Dr Bissett maintained that that the previous adjustment was intended to apply to NM1 only. This was incorrect as we have found earlier. The evidence did not explain the reason for Dr Bissett's mistaken belief, and it is not open for the Tribunal to speculate.

(g) Professor Witchalls and Dr Bissett determined that additional time would not be allowed for the Viva exams but that they would consider a request for 5 minutes extra reading time.

(h) I&E consulted the complainant about the proposed amendment to her RAP on 20 September 2020. By doing so the University complied with its obligations under paragraph 3.5 of the Disability Standards for Education 2005. The complainant expressed understanding of the school's reasons and a willingness to attempt the Viva exams without additional time.

(i) I&E issued an amended RAP on 21 September 2020. The adjustment now provided: "Extra time for viva exams (clinical exams). Recommended 5 minutes additional time is applied for reading".

1. The complainant alleges that she failed her first Viva exam due to the "abrupt removal of the adjustment plan" and that Professor Witchalls did not provide her with any feedback. [155]
2. Contrary to the allegations, the Tribunal finds as follows:

(a) The complainant failed her first Viva exam in MI1 on 10 October 2017 due to inadequate knowledge, lack of practice and inadequate preparation.

(b) Based on the video of the complainant's performance, the Tribunal is not satisfied that additional time would have made any material difference to the outcome.

(c) The complainant received appropriate feedback from Professor Witchalls immediately after finishing the exam.

1. The complainant alleges that the University failed to continue to provide reasonable adjustments to enable her to continue to participate in the physiotherapy course.[156]
2. Contrary to the allegations, the Tribunal finds as follows:

(a) I&E consulted with the complainant on or about 24 October 2017 and ascertained that she wished to request an adjustment of 5 minutes extra for reading and 5 minutes extra for the practical in upcoming Viva exams in CI1 and MI1.

(b) I&E met with Dr Bissett on 24 October 2017 to discuss the complainant's request. Dr Bissett refused the request for additional time for the practical. The reasons she gave included: (a) that the Viva is an important predictor of success in clinical placement and is essential to ensure that students are ready for clinical placement; (b) providing additional time for the practical component may compromise patient safety during placement and the academic integrity of the course.

(c) A compromise was agreed whereby the complainant would be offered an additional on-on-one Viva session to provide her with an opportunity to practice and receive some guidance and the school would consider a request for 5 minutes extra reading time.

(d) It is reasonable to infer that I&E considered the adjustment to be reasonable in the circumstances.

(e) The complainant was offered an additional practice session but did not take up the offer.

(f) The complainant subsequently informed Dr Bissett that she was not requesting or expecting additional time for her CI1 Viva exam scheduled for early November but that she would request 5 minutes additional reading time for the MI1 Viva. She confirmed her understanding and acceptance of the faculty's reasons for not granting extra time.

(g) The evidence did not show the complainant's results in the CI1 Viva exam. However, she obtained an overall pass in the subject with a mark of 55.[157]

(h) The final written exam and second Viva exam in MI1 were scheduled for November 2017, in the normal University end-of-year examination period. The complainant missed both exams due to an unspecified illness.

(i) A medical report written in December 2017 advised that the complainant's ADHD "has significantly impacted on her ability to study due to inattention, poor concentration, easily distracted, easily fatigued and fear of failure due to the above" and confirmed the opinion of another treating doctor, given a year earlier, that the complainant was unable to manage full-time study.

(j) The complainant completed the written and Viva exam in MI1 during the University's deferred examination period in February 2018.

(k) The evidence did not show her result for the written exam. However, she failed the Viva exam with a mark of 10/70 and failed the subject with an overall mark of 35.

(l) Based on the video of the complainant's performance, the Tribunal is satisfied that additional time would have made no material difference to the outcome.

(m) The Tribunal is satisfied, based on the feedback provided by Dr Newman at the end of the Viva exam that the complainant needed considerably more hands-on practice to have any prospect of passing the subject and advancing in the course.

(n) The complainant was unable to continue the course because she was no longer eligible for Centrelink support because of the lack of progress achieved in her first three years of the course.[158]

Considerations involved in the University's refusal to allow additional time

1. The University's case is that that the decision not to allow additional time for the Viva exams involved considerations relating to course accreditation, patient safety, the role of Viva exams in maintaining the academic integrity of the course and fairness to other students.

1. The complainant subpoenaed Ms Leanne Percy, the General Manager, Accreditation of the Australian Physiotherapy Council to give evidence. The effect of the evidence Ms Percy was expected to give was foreshadowed in earlier correspondence as follows:[159]

I have contacted the Australian Physiotherapy Council to confirm the additional time on the VIVA assessments. As such, I wish to advise the reply was (exact words) not PRESCRIPTIVE on the timing. It's up to the university's discretion. They went on to say that they expect the universities to have the students ready for placement. "Competence" is what they expect. Please note I have the information recorded and it was obtained from a person (not disclosing names) in charge of the accreditation for the universities of Australia. [Emphasis in original]

1. Ms Percy was available to give evidence but was not called upon because the complainant withdrew from the hearing. However, other evidence to which we refer below confirms that what is written above is consistent with the accreditation process conducted by the Australian Physiotherapy Council.
2. Professor Scarvell describes the accreditation process as detailed and arduous. The process scrutinises in detail the curriculum, systems for maintaining quality, systems for preparing students for clinical placements, and systems to ensure the quality of physiotherapy practice and protect public safety. While the University has some flexibility in the course design, manner of delivery and assessment, accreditation requires the University to meet detailed objectives on an annual basis. The burden is on the University to demonstrate it meets the accreditation requirements and produces appropriate student outcomes and graduate outcomes annually.[160]
3. Professor Scarvell explains that the course objectives include to produce graduates who demonstrate an in-depth understanding of the structure and function of the human body relevant to the practice of physiotherapy and who are safe and capable practitioners. The course is designed to teach detailed knowledge of the body, clinical reasoning of injury and disease, the ability to assess and interpret findings, and implement and evaluate effective and evidenced-based treatments. Students are assessed on both the knowledge and practice of physiotherapy. Assessment is based on written exams, oral assessments and Viva exams designed to mimic a clinical setting. Students obtain clinical experience in the second, third and final year of the course.
4. In second year, clinical experience comprises observational visits to Canberra Hospital intensive care and student led clinics on campus.
5. In third year, students gain the following clinical experience:
   • Semester 1: Visits of patients into the classroom for two units (patients can include people who had suffered from stroke and people with a chronic lung condition).
   • May: First clinical placement, this could take place in any field including musculoskeletal, cardiothoracic or neurology and could include placement in hospital, private practice, rehabilitation or UC student clinics. Students are required to assess and treat patients, carry a workload under supervision.
   • July: Second clinical placement
   • During year 3 and 4 students are on five-week rotations, for clinical blocks and classes on a rotating schedule.[161]
6. In their final year, students undertake two placements, each of 5 weeks duration.
7. By the time of their first clinical placement in year 3, students are required to have the skills necessary to manage a realistic caseload in a clinical setting. Students must be well prepared to ensure they are ready to learn effectively, patient safety is maintained, and effective health interventions are carried out. Critically, clinics and hospitals that accept students for placement must be sure that the students can perform safely and competently.[162]

The role of Viva exams in ensuring patient safety

1. Patient safety and the importance of Viva exams as a means of ensuring that students can perform safely in a clinical environment, is a recurrent theme in the University's evidence. As Dr Bissett explains: [163]

Through our viva exams we are assessing safety, efficiency and effectiveness of the intervention, and making a judgement as to whether the students will be safe to be engaging with patients in hospitals and practices beyond the University. Physiotherapy is not a low-risk profession. Many of the skills taught to students is how to manage risky situations, (such as respiratory infections in ICU patients) where time management can literally mean the difference between life and death.

Realistic time limits are essential to determine whether a student can respond spontaneously and appropriately to challenging clinical scenarios. If we do not provide realistic time limits within our viva exams, then we cannot be confident that students are ready to succeed on clinical placement. Worse, if we are not confident that students are safe to practice within realistic time limits, then we are potentially putting real patients at risk in these clinical settings (e.g. if a student fails to obtain assistance for a patient whose oxygen levels are dropping rapidly, then a matter of minutes can be catastrophic).

As previously noted, time management is one of the assessable components in the viva; it is important that our students can perform tasks efficiently and with a high level of concentration in order to qualify as a physiotherapist. Furthermore, being able to spontaneously respond to a real-time challenge is an essential element of being a safe physiotherapist (for example, helping a patient to get out of bed when they are dizzy because their blood pressure has dropped; one can't simply ask for more time to deal with this situation, one needs to ensure the patient doesn't fall).

The role of Viva exams in maintaining the academic integrity of the course

Through our viva exams, particularly in the second and third year, we assess the safety of the student, and the efficiency and effectiveness of their clinical assessment and treatment. Whilst designed to achieve the course objectives, viva exams are vitally important to determine whether our students will be safe and prepared to work in a clinical setting in their third and fourth-year placements.

It is because of these factors that viva exams need to mimic a realistic treatment timeframe. The purpose of the timeframes in the viva exams is to test whether a student can manage a patient within a clinical placement setting and respond effectively and efficiently to the significant challenges this may present. For example, getting a patient out of bed the day of the knee reconstruction, or the day after a total hip replacement, the student must be able to recognise, respond fast to an abrupt decrease in blood pressure, or the result could be disastrous.[165]

1. Dr Fearon explains the training students receive throughout the course on how to approach Viva exams as follows:[166]

As educators of physiotherapist, the staff at the University provide scaffolding for the students to learn the complex and challenging task of assessing and treating a patient effectively and efficiently. By the time a student goes on a five-week "clinical placement", they are expected to be able to undertake a full subjective and objective assessment and treatment of a patient within one to one and a half hours in week one, and 45 minutes by week five. As a discipline, we scaffold the content and duration of viva exams over the duration of the degree. During the semester we purposefully train the students on how to approach viva exams, and how to become more effective and efficient. In first year, students are asked to undertake specific and limited technical tasks, with only a small amount of clinical reasoning. High performing students have no difficulty completing the tasks within the timeframe (10 minutes of reading and 20 minutes for the viva) while the lower performing students find it a challenge, while still passing. In second and third year the duration of the viva is extended, as is the examinable content, with the viva becoming increasingly like the clinical experience.

Physiotherapy is a practical profession that requires the integration of knowledge and skills that can be performed in a specific timeframe. Preparing for and undertaking viva exams provide an excellent opportunity for students to engage in constructive alignment of the content they have been provided. In addition, in preparing for viva exams students become aware of the gaps in their knowledge and are provided with opportunities for feedback from staff and their student colleagues. Importantly, by the time the students are undertaking second and third year vivas, the vivas closely resemble clinical practice. Passing these exams gives the students confidence in their ability to treat real patients.

The design of the physiotherapy bachelor (and Masters) degree is a significant undertaking. Substantial research goes into the design of each unit to meet the learning outcomes required to achieve and maintain accreditation, and for a student to become a physiotherapist. Units are mapped against each other to demonstrate the progressive accumulation of knowledge and skills; the development of the student. Viva exams, while stressful, play a vital role in preparing students for clinical practice, particularly in later years where they will be exposed to stressful situations when dealing with very unwell and vulnerable patients.[167]

The role of Viva exams in preparing students for clinical placement

1. Dr Irmina Nahon, a Senior Lecturer in Physiotherapy and the Professional Practice Coordinator for Physiotherapy, was responsible at all relevant times for placing students to obtain clinical experience. She explains the relationship between Viva exams and the competencies that a student must demonstrate on clinical placement, as follows:

Viva exams mimic clinical practice to the extent we can in an educational setting. They can be seen as difficult exams and require the student to demonstrate their practical learning in front of their peers and assessors within a specified time. Viva exams are developed with the competencies of clinical placement in mind. They contain elements of the assessment tool, the Assessment of Physiotherapy Practice ("APP") used on clinical placement... The assessment tool is based on the Physiotherapy Practice Thresholds in Australia and New Zealand, which is the thresholds for the practice of the profession in Australia and New Zealand...

The APP (Assessment of Physiotherapy Practice) is a valid instrument designed for use by clinical educators and students to assess workplace-based performance of students. It was developed and collaboratively tested within the constraints of dynamic and unpredictable clinical environments. The APP has been mapped to the Australian Standards for Physiotherapy Practice aligning assessment with the knowledge, skills and attitudes required for registration as a physiotherapist.[168]

1. Dr Nahon's evidence emphasises the importance of nurturing and cultivating relationships with placement providers because placements are becoming increasingly scarce. She states:

There are 7 NSW universities with physiotherapy courses all vying for clinical placements with UC. Between us we require more than 6000 five-week placements per year. There is no obligation for any health district or private entity to include or exclude a specific educational facility. They choose which university they deal with based on the relationship they have with the Professional Practice Coordinator. The maintenance of the relationships with our providers is crucial to the continuation of our Bachelor degree. Part of the success of our relationships is due to the quality of students we provide for placement.

The University bears the responsibility for the student during the placement. It is therefore critical to our placements that we provide students that are capable and dependable.[169]

1. Dr Bissett's evidence is to similar effect, including that:

If our clinical educators in the field lose faith that our students are safe and prepared for the clinical environment, we will lose our access to clinical placement (i.e. they will simply stop taking our students). As clinical performance is a required element of our degree (as per accreditation) then this would certainly jeopardise the integrity of our courses.[170]

1. Several witnesses referred to research demonstrating that performance in Viva exams is a strong indicator of clinical success.[171]
2. It is convenient at this point to address the complainant's submission that an email Dr Nahon wrote to her mother on 31 August 2017, responding to an enquiry about whether the complainant could do her placement in Melbourne rather than in Wollongong, provides "strong evidence of my complaint".[172] The email stated in part:

There are 3 universities in Melbourne and 7 in Sydney all vying for clinical placements, so we are unlikely to get many, if any, placements there. In my role as clinical coordinator, I work closely with clinical partners to secure clinical placements but the decision rests with the site to determine how many places they offer. Once we have places, I allocate them according to academic need. Each student needs to complete 5 placements and they needed to cover the core areas. Every student will be doing rural placements and all will be leaving Canberra several times. This is a requirement for registration as a physiotherapist.[173]

Despina's academic need will be weighed up alongside the academic need of all of our students when allocating placement.

What she meant was that in busy hospitals the high achievers are given placements and in the not so busy hospitals like Wollongong was back in 2017 the weaker students are given the placements.

This is because if a student is weaker she or he may have problems or even fail the placement dealing with many patients coming and going. As that student is not as confident as the higher achievers who are more experienced dealing with patients.

The selection according to academic need as Ms Nahon says is based on the marks a student receives in this viva exam the one that I have been complaining about when the university removed the additional time.[174] [emphasis in original]

1. The complainant intended to subpoena Dr Nahon to give evidence about the email, which she said:

...shows that the University of Canberra treated me unfavourably because they have written in their reply [Exhibit R1] the reason why they removed the additional time was due to being a risk to patient's safety.

Even though the head of physiotherapy and the unit convenor in each member of the Faculty of Health were aware this is not true, and that every student is allocated according to academic need and every student is fully supervised on every placement.

So, how would it be possible that I was risking the safety of patients?[175] [emphasis in original]

1. However, the University filed and served a statement from Dr Nahon which addresses the issues that the complainant raised. Dr Nahon states that, while it is true that efforts are made to match a student with the most appropriate placement, it is untrue that a student who may be considered unsafe would be allowed to undertake any clinical placement. Weaker students are not deliberately placed in less busy hospitals. Emergency situations may arise anywhere, and all students must be able to manage this. All students need to pass the same level of competency. Students are not allocated to placements based on their personal capabilities or academic marks. The availability of placements, where the placements are located, and operational requirements are all important considerations. The Tribunal accepts Dr Nahon's evidence.

1. For a rebuttable presumption to arise that direct discrimination has occurred, the Tribunal must be satisfied that:

(a) the complainant has been treated unfavourably by the University refusing to provide an adjustment of a maximum 15 minutes additional time for Viva exams in accordance with the RAP issued to her at the start of semester 2 in 2017; and

(b) in the absence of any other explanation, the evidence presented by the complainant establishes that the unfavourable treatment was because of her disability.

1. If such a presumption arises, the onus shifts to the University to establish that the unfavourable treatment was not because of the complainant's disability.[176]
2. The complainant was issued a RAP at the start of semester 2 that provided an adjustment of a maximum of 15 minutes additional time for Viva exams. Regardless of the fact that the RAP was issued without prior consultation with the faculty, as should have happened, it was valid and the complainant was entitled to expect that she would be provided the adjustment for Viva exams in that semester. The consequences of substituting 5 minutes extra reading time in place of up to 15 minutes additional time, a proportion of which would reasonably be expected to be added to the practical component where the complainant's disadvantage caused by her disability was most acute, must inevitably have been to cause her increased anxiety and stress and make an already difficult and stressful examination format, more difficult and stressful for her.
3. The Tribunal is satisfied that this meets the test for 'unfavourable treatment' discussed in Kidman v Casino Canberra Pty Ltd.[177]
4. The complainant did not present evidence that satisfies the Tribunal that, in the absence of any other explanation, the unfavourable treatment was because of her disability. The circumstances to which she points do not provide evidence of unfavourable treatment because of her disability.[178] The University's evidence satisfies the Tribunal that the faculty's reasons for refusing to allow additional time had nothing to do with the complainant's disability.[179] The primary considerations were that allowing additional time in the practical component of a Viva exam was not clinically appropriate and would undermine the academic integrity of the course, affect patient safety, fail to prepare the complainant properly for clinical placement and potentially give the complainant an unfair advantage over other students.

1. For a rebuttable presumption to arise that indirect discrimination has occurred the Tribunal must be satisfied that, in the absence of any other explanation, the evidence presented by the complainant establishes that the condition or requirement imposed on the complainant to undertake Viva exams without an adjustment that included additional time for the practical component, had, or was likely to have, the effect of disadvantaging her.
2. However, the presumption does not arise if the University establishes that the condition or requirement was reasonable in the circumstances and may be rebutted if the University establishes that the effect of disadvantaging the complainant was not because of her disability.[180]
3. The Tribunal is satisfied that the requirement to undertake Viva exams without additional time for the practical component had, and was likely to have, the effect of disadvantaging the complainant in the sense explained in Prezzi, Patricia Anne and Discrimination Commissioner[181] for the same reasons as the Tribunal finds that the complainant was treated unfavourably.
4. It is necessary to determine, therefore, whether the requirement was reasonable in the circumstances. Pursuant to section 8(5) of the Discrimination Act, in deciding whether the condition or requirement was reasonable in the circumstances, it is necessary for the Tribunal to consider, among other things, the nature and extent of the resulting disadvantage to the complainant, the feasibility of overcoming or mitigating the disadvantage and whether the disadvantage is disproportionate to the result sought by the University. The University bears the onus on these issues.
5. The Disability Standards for Education 2005 states that an adjustment (including a change to an existing adjustment) is reasonable for a student with a disability if it balances the interests of all affected parties. Relevant considerations include: the student's disability; the student's views about the adjustment, including the suitability of any alternative reasonable adjustment that may be no less beneficial; the effect of the adjustment on the student's ability to achieve learning outcomes, participate in courses or programmes and independence; the effect on others, including the University, staff and other students; and the cost and benefits of making the adjustment. An overarching consideration is the maintenance of the academic requirements of the course and other requirements that are inherent in or essential to its nature.[182]
6. The adjustment provided by the amended RAP issued in semester 2 of 2016 met these criteria.
7. The RAP issued at the start of semester 2 of 2017, while valid, did not meet the criteria because it was issued without consultation with the faculty, which was essential to ensure that the adjustment continued to balance the interests of all affected parties and that it complied with unit objectives and course requirements for MI1 and CI1.
8. Professor Scarvell's witness statement reiterated that, for Viva exams undertaken in pre-clinical units in second and third year, she had advised I&E that a maximum of 15 minutes additional time would be clinically appropriate and would maintain the integrity of the course while allowing reasonable adjustment, but did not explain the basis for that opinion. Clearly, the opinion was not shared by other academic staff at the time, or subsequently. Because the complainant chose not to participate in the hearing, the opportunity for Professor Scarvell and Dr Bissett to be questioned about the reasons for their differences of opinion was lost. The evidence provides no basis to prefer the opinion of one over the opinion of the other. That there may be disagreement, even strong disagreement, about such issues is unsurprising. The Tribunal accepts the evidence of Dr Fearon, Dr Bissett, Professor Witchalls and Dr Nahon, that there were appropriate and reasonable grounds for their strongly held opinions that allowing any additional time in the practical component of a Viva exam was not clinically appropriate and would undermine the academic integrity of the course, affect patient safety, fail to prepare the complainant properly for clinical placement and potentially give the complainant an unfair advantage over other students.
9. The Tribunal accepts that allowing additional time for the practical component of the MI1 and CI1 Viva exams in those circumstances would not provide reasonable adjustment.
10. The Tribunal finds that the condition or requirement imposed on the complainant to undertake Viva exams without an adjustment that included additional time for the practical component was reasonable in the circumstances.
11. The University took steps to overcome the complainant's disadvantage in a different way on two separate occasions.
12. Initially, the faculty was prepared to allow an additional 5 minutes for reading before the start of the Viva exam to help the complainant gather her thoughts. The complainant was consulted by I&E and expressed understanding of the reasons for the faculty's position and a willingness to attempt the upcoming Viva exams in CI1 and MI1 without additional reading time, unless she found she needed it after the mock Vivas. I&E considered the adjustment was reasonable and, after taking into account the complainant's views, issued an amended RAP that included a recommendation for an additional 5 minutes reading time.
13. After she failed the first Viva exam in MI1, I&E and faculty staff revisited the question of a reasonable adjustment. Although the complainant's RAP was not amended formally, she was offered an additional one-on-one Viva session to provide her with an opportunity to practice and received some additional guidance before her final exams. The Tribunal considers this was an appropriate means of mitigating the complainant's disadvantage, provided she did what every student is expected to do - namely, practice, study and prepare properly for the Viva exams.
14. Subsequently, the complainant again expressed understanding of the reasons for the faculty's position and indicated that she would request an additional 5 minutes reading time for the MI1 Viva exam only. She did not take up the offer of the additional practice session.
15. The complainant's case misconceives her entitlement to reasonable adjustment in several critical respects. First, it assumes that the adjustment provided for 15 minutes additional time, rather than a recommended increase of up to 15 minutes maximum. Second, it assumes that the additional time would be provided during the practical component of Viva exams. Third, it assumes the adjustment was immutable and would continue to be provided to enable her to complete the course requirements, when in fact it was to be reviewed each semester to ensure that it complied with unit and course requirements.
16. Taking into account the considerations involved in the University's refusal to allow additional time for the practical component of Viva exams discussed earlier, the Tribunal is satisfied that the amended adjustments provided or offered to the complainant were reasonable in the circumstances. The offer of an additional one-on-one practice session is particularly significant in the Tribunal's view, as is the fact that the complainant failed to take up the offer.
17. Reasonable adjustments are intended to provide a student with a disability the opportunity to participate in a course, program or learning experience, on the same basis as a student without a disability. Reasonable adjustments do not require the University to provide a bespoke learning experience. The maintenance of academic integrity is fundamental. Reasonable adjustments do not guarantee that a student with a disability will necessarily be able to cope with the course or assessment requirements, particularly in a clinically focussed course such as physiotherapy. Nor are reasonable adjustments intended to be a substitute for adequate practice, study and preparation for Viva exams that are designed deliberately to simulate clinical practice and prepare students for clinical placements, where patient safety is a paramount consideration.

1. The complainant has failed to establish that the University directly discriminated against her. Although the Tribunal considers that the University treated her unfavourably, the Tribunal is not satisfied that the unfavourable treatment was because of her disability.
2. The complainant has failed to establish that the University indirectly discriminated against her. Although the Tribunal considers that the condition or requirement the University imposed on the complainant had the effect of disadvantaging her, the Tribunal is satisfied that the condition or requirement was reasonable in the circumstances.
3. The Tribunal is satisfied that even if the University's conduct did amount to discrimination, the complainant has failed to establish the University's conduct materially contributed to the losses she claims. The complainant failed MI1 because she did not practice, study, or prepare adequately for the Viva exams. The Tribunal is satisfied that the extra time she claims she should have received would not have altered the result.

1. After the hearing the Tribunal invited the parties to provide brief written submissions addressing whether the orders made on 30 April 2020 should remain in place or not. Both parties provided written submissions.
2. The complainant requested the orders remain in place permanently on the basis that the matter was sensitive and very personal. She did not refer to any document or other information to support her reason. The University submitted the orders should be set aside because the matters in section 35(5)(a)-(c) were not met. The University repeated its submission that the application was improperly brought and most likely brought by someone other than the complainant.
3. The principle of open justice is fundamental to proceedings in courts and tribunals. It is the norm, but not without exception. The Tribunal may restrict access to information or require hearings to be held in private. The circumstances in which the Tribunal may so decide are set out in section 39(5) of the ACAT Act as follows:

(a) to protect the morals, public order or national security in a democratic society, or

(b) because the interests of the private lives of the parties require the privacy, or

(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

1. It is a reality of open justice that the identity of parties and material provided to a court or tribunal will be revealed or be publicly available. This may include information a party regards as private or otherwise be uncomfortable having in the public domain. A cogent reason by reference to the case would be required for the Tribunal to depart from the norm.[183]
2. As Kirby J said in John Fairfax Group Pty Ltd v Local Court of New South Wales:

... It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts or the issue of suppression orders in their various alternative forms.[184]

1. The Tribunal is not satisfied that the applicant has provided a cogent reason to continue the orders made on 30 April 2020, however the Tribunal considers restricting public access to the file ameliorates any concerns regarding personal information. The complainant has not identified any information or reason that enlivens section 35(5) and merely regarding the matter as sensitive and personal is not enough.

(a) The respondent's application pursuant to section 32 of the ACAT Act is dismissed.

(c) The orders made on 30 April 2020 pursuant to section 39 of the ACAT Act are set aside.

(d) There is to be no public access to the Tribunal file.

Ms C Cuthel, Senior Legal Counsel, University of Canberra

[1] Exhibit R4 attachment A - Academic Transcript; exhibit A1.23

[2] Exhibit R15 attachment J - Unit Outline for Musculoskeletal Interventions 1 - pages 11 and 12

[3] Mewett v University of Canberra [2018] ACAT 61 at [11]

[4] Exhibit A20 - email from the complainant to the tribunal sent on 4 May 2020 at 8:29AM [Re: in reply to Gretta's request for an extension of time to provide statements] in which the complainant confirmed that "I am not complaining of anything else..."

[5] Exhibit A1.2 - letter from Dr Jarman dated 15 December 2016; exhibit A1.3 - letter from Dr Grocott dated 5 December 2017. See also paragraphs 124, 130, 135, 190, 199 above

[6] Australian Capital Territory v Wang [2019] ACAT 65 at [159]

[7] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22]

[8] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]- [7]. See also, Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]

[9] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi, Patricia Anne v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]- [57])

[10] Australian Capital Territory v Wang [2019] ACAT 65 at [185]

[11] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22] and [24]

[12] [2001] FCA 379

[13] Purvis v New South Wales [2003] HCA 62 at [7], per Gleeson CJ

[14] Australian Capital Territory v Wang [2019] ACAT 65 at [89] referring to Kovac v Australian Croatian Club Ltd (No 2) [2016] ACAT 4 at [51]- [55]

[16] Professor Jeremy Witchalls is Professor of Musculoskeletal Intervention and, at the relevant time, was the course convenor

[17] Document titled 'Submission' forming part of Exhibit A4

[18] Exhibit R1 - allowed as a submission, not as evidence

[20] Professor Jennifer M. Scarvell is the current Associate Dean of Research and Innovation at the University of Canberra and is the former Head of School of Health Sciences and, from August 2011 to January 2017, the former Discipline Lead in Physiotherapy at the University.

[23] Exhibit A8 (email to Ms. Cuthel, cc: ACAT sent on 17 April 2020 at 3:39 pm); exhibit A9 (email to ACAT, cc: Ms. Cuthel sent on 17 April 2020); exhibit A10 (email to ACAT, cc: Ms. Cuthel sent on 22 April 2020); exhibit A11 (email to ACAT: cc Ms. Cuthel sent on 23 April 2020); exhibit A12 (email to ACAT: cc Ms. Cuthel sent on 24 April 2020 at 4:13 pm Subject: strong evidence for hearing Andreopoulos Vs UC)

[24] WebEx is a virtual meeting program adopted by the Tribunal to conduct hearings during operational changes put in place due to COVID-19.

[25] Professor Jennifer M Scarvell - see footnote 20

[26] Audio recording of the hearing on 30 April 2020 at 11:39:53pm

[27] Audio recording of hearing on 14 May 2020 at 9:03am

[37] Part of exhibit 3; the evidence satisfies the Tribunal that a distinguishing feature of the mother's writing style was the use of capitalised text for emphasis.

[40] Transcript of proceedings 25 May 2020 page 2, lines 4-44

[41] Transcript of proceedings 25 May 2020 page 3, line 18 to page 5, line 32

[42] Transcript of proceedings 25 May 2020 page 9, lines 3-16

[43] Transcript of proceedings 25 May 2020 page 9, lines 36-39

[44] Transcript of proceedings 25 May 2020 page 10, lines 17-47

[45] Transcript of proceedings 25 May 2020 page 14, lines 32 to page 15, line 17

[46] Transcript of proceedings 25 May 2020 page 20, line 45

[47] Transcript of proceedings 25 May 2020 page 21, line 23 to page 26, line 20

[48] Transcript of proceedings 25 May 2020 page 23, line 28 to page 26, line 46

[49] Transcript of proceedings 25 May 2020 page 26, line 30-35

[50] Transcript of proceedings 25 May 2020 page 27, line 27-29

[51] Exhibits A1, A1.1-A1.28, A2-A4, A4.1-A4.3, A5-A13, A13.1, A14, A15, A15.1-A15.17, A16, A17, A17.1-A17.6, A18-A20

[52] Transcript of proceedings 25 May 2020 page 51, lines 37 to page 52, line 3

[54] Exhibits 2-5. Exhibit 1 was the power of attorney given by the complainant to her mother, which the Tribunal received into evidence at the start of the hearing

[55] Cheluvappa v University of Canberra [2018] ACAT 108 at [39]. See also, TGD v Australian National University [2019] ACAT 81 at [66]. Both decisions cited the summary in Jamieson Mary v Australian Workers Union and Anor [1999] VCAT 268 of the principles considered by the Victorian Court of Appeal in The State Electricity Commission Board v Rabel [1998] 1 VR 102

[56] Transcript of proceedings 26 May 2020 page 79, lines 39 to page 80, line 13

[57] Transcript of proceedings 26 May 2020 page 86, lines 13-24

[58] Transcript of proceedings 26 May 2020 page 87, lines 29-32

[59] Transcript of proceedings 26 May 2020 page 88, lines 37-40

[60] Transcript of proceedings 26 May 2020 page 89, lines 9-13

[61] Transcript of proceedings 26 May 2020 page 91, lines 3-9

[62] Transcript of proceedings 26 May 2020 page 97, lines 44 to page 98 line 2

[63] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 per Gummow ACJ, Hayne, Crennan and Bell JJ at [88]-[89] (citations omitted)

[64] [2015] HCA 28 per French CJ, Bell, Gageler and Keane JJ at [25]. See also UBS AG v Tyne [2018] HCA 45 per Kiefel CJ, Bell and Keane JJ at [1]; Gageler J at [72]; Gordon J at [126]

[65] See the reasons for the Tribunal's refusal of the application to appoint a litigation guardian - transcript of proceedings 25 May 2020 page 23, lines 28 to page 26, line 46

[66] Transcript of proceedings 25 May 2020 page 13, lines 37-43

[67] Transcript of proceedings 25 May 2020 page 17, lines 3-7

[69] Part of exhibit 5, email from the complainant to the tribunal sent on 25 May 2020 at 6:29 am

[71] Transcript of proceedings 25 May 2020 page 31, lines 29 to page 33, line 19

[72] [2018] HCA 45 at [136]

[73] Transcript of proceedings 26 May 2020 page 91, lines 44-48

[74] Cheluvappa v University of Canberra [2018] ACAT 108 at [39]

[76] Exhibit R1 attachment A pages (iii)-(iv)

[78] Exhibit R5 paragraphs [6] to [9]

[81] Exhibit R9 paragraph 15; exhibit R5 paragraph 12

[87] So far as we can ascertain, Dr Fearon's original email is not in evidence, however the extract is reproduced in a piecemeal fashion in an email from the complainant's mother to Dr Fearon, among others, sent on 3 September at 5:28 am, which is part of exhibit R15 Attachment B

[89] Exhibit R15 attachment B. An email to similar effect was sent to Ms. Torabi on 5 September 2016 - exhibit R9 attachment B

[93] Exhibit R15 part of attachment F2; exhibit R8 paragraph 12

[97] Exhibit R8 paragraph 15, attachment A

[103] Exhibit R8 paragraph 26 and attachment D

[105] Exhibit R10 paragraph 25 and attachment C; exhibit R9 attachment F

[112] Exhibit A1.9; exhibit R5 attachment F

[114] Exhibit R1 attachment C; see also exhibit R5 attachment 3J

[126] Exhibit A5, 4th and 5th unnumbered page

[129] Professor Witchalls confirmed in an email to Ms. Cuthel on 25 May 2020 at 6:41pm (exhibit R17) that the first Viva exam was set for 4 October 2017 (week 9). Week 7 was a mock exam practice week and week 8 was a non-teaching week.

[149] Exhibit R14; exhibit R15 attachment K

[152] See paragraph 29 above; exhibit A3

[153] Exhibit R1 attachment C; see also exhibit R5 attachment 3J

[154] See paragraph [29] above; exhibit A3

[155] See paragraph 29 above; exhibit A3

[156] See paragraph 7 above

[162] Exhibit R10 paragraph 9. See also Dr Bissett (exhibit R7 paragraphs 3-8), Dr Fearon (exhibit R8 paragraph 20)

[171] Professor Witchalls (exhibit R6 paragraph 23); Dr Bissett (exhibit R7 paragraph 23); Dr Nahon (exhibit R11 paragraph 21)

[172] Exhibit R11, attachment F (email from the complainant to the Tribunal sent on 8 May 2020 at 8:40:22 am

[174] Exhibit R11 attachment F (email to the Tribunal on 8 May 2020 at 8:40 am)

[176] See paragraph 18

[177] [2020] ACAT 50 at [22]; see paragraph 20 above

[178] See e.g. paragraphs 29(e), 212, 213 and 235-238

[179] See paragraph 213

[180] See paragraph [19]

[181] [1996] ACTAAT 132 at [22], [24]; see also, paragraph [22]

[182] See paragraphs [102] - [105]

[183] Australian Investment and Securities Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75]

[184] (1991) 26 NSWLR 131 at 142