Braiding v Charles Sturt University

The application for dismissal

1. The University objected to the Tribunal accepting the "points" document filed on 10 February 2016 and, regardless of whether that document was accepted, applied for the Tribunal to dismiss all or part of the complaint because: 1. the complaint is lacking in substance: Anti-Discrimination Act, s 102 and s 92(1)(a)(i); or 2. the conduct alleged if proven, would not disclose the contravention of a provision of the Anti-Discrimination Act: Anti-Discrimination Act, s 102 and s 92(1)(a)(ii); or 3. there has been a want of prosecution of the proceedings: Civil and Administrative Tribunal Act 2013 (NCAT Act), s 55(1)(d).

Should the Tribunal take into account the "Points" document?

1. The Tribunal directed Mr Braiding to file Amended Points of Claim by 11 December 2015 in accordance with its reasons. Mr Braiding did not comply with the Tribunal's direction. A further case conference was held on 16 December 2015 at which time Mr Braiding was directed to file to file Amended Points of Claim and all the evidence on which he intended to rely by 13 January 2016.
2. By letter of 17 December 2015, the University told Mr Braiding that an application would be made to dismiss the complaint if he did not comply with the timetable. 0n 24 December 2015 Mr Braiding requested an extension of time to obtain legal advice and noted that many community legal centres were closed over the Christmas/New Year period. An extension was given for Mr Braiding to file this material by 9 February 2016. He did not comply with that direction.
3. On 10 February 2016 a further case conference was held. The Tribunal made directions on that date for the University to file an application for summary dismissal. The following day, 11 February 2016, Mr Braiding filed the "Points" document and an MP3 file recording a meeting between himself and the University Ombudsman, Mr Daye, on 12 May 2014. Mr Braiding stated in that document that, "The amended points of claim for points 1, 2, 4 and 5 have been supported by evidence from emails and MP3 file of disability discrimination and victimisation whilst attending Charles Sturt University".
4. Parties are obliged to co-operate with the Tribunal to give effect to the "guiding principle" which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36. For that purpose, parties must participate in the processes of the Tribunal and comply with directions and orders of the Tribunal: NCAT Act, s 36(3). In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(4).
5. Mr Braiding was given two extensions of time to file the Amended Points of Claim and his evidence. He eventually filed that material two days late. Because the Tribunal gave Mr Braiding further time to comply with directions and because he was only two days late complying with the second extension, I consider it to be fair and just to take into account Mr Braiding's "Points" document and the MP3 recording when considering the University's application for dismissal.
6. A second question is whether the Tribunal should take into account the way Mr Braiding characterised his allegations in further submissions filed on 11 March 2016. Those submissions were filed in response to the University's application for summary dismissal. The Tribunal had not given Mr Braiding leave to file a further Amended Points of Claim document and the University has not yet had an opportunity to make submissions as to whether those parts of the submissions which purport to explain the legal basis for his complaint, should be taken into account.
7. Mr Braiding has been given a reasonable opportunity to present his case, in writing, to the University and the Tribunal: NCAT Act, s 38(5)(c). But, taking into account the fact that Mr Braiding is self-represented and the fact that the University has not yet filed its Points of Defence or evidence, I will have regard to the 11 March 2016 submission for the purpose of determining the dismissal application.

Dismissal for want of prosecution?

1. The Tribunal has power to dismiss a complaint "if the Tribunal considers that there has been a want of prosecution of the proceedings": NCAT Act, s 55(1)(d). The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch.
2. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56.
3. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55(1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. the Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
4. Mr Braiding said that the reasons for the delay were his inability to obtain legal advice over the Christmas/New Year period. He also said that he was unable to locate the MP3 recording of the conversation with the University Ombudsman. The University's response was that this is an insufficient explanation for non-compliance because Mr Braiding had ample time after 20 November 2015 to obtain legal advice. Furthermore the University gave Mr Braiding a copy of the MP3 recording in July 2014 and Mr Braiding gave it to the Tribunal. According to the University it is prejudiced in responding to the complaint because it is almost two years since Mr Braiding first complained to the Anti-Discrimination Board. Some employees have resigned and the memories of others will have faded.
5. This complaint was lodged with the Anti-Discrimination Board on 31 July 2014 and referred to the Tribunal on 6 February 2015. Mr Braiding has sought and obtained extensions of time to file and serve his material. Since then he has provided a further document outlining the legal basis for his complaints. He should have attempted to obtain legal advice much earlier than he did. The delay is only partly due to the difficulty obtain legal advice over the Christmas/New Year period. The delay has caused prejudice to the University for the reasons it gave. Nevertheless, because the Tribunal extended the time for Mr Braiding to file and serve his Points of Claim and evidence and he was only two days in complying with that timetable, I refuse to exercise the discretion to dismiss the complaint for want of prosecution.

When does a complaint fail to disclose a contravention or is lacking in substance?

1. Section 102 of the Anti-Discrimination Act gives the Tribunal power to dismiss, at any stage, proceedings relating to a complaint on certain grounds on which the President of the Anti-Discrimination Board may also decline a complaint. Two of those grounds are that the proceedings are "frivolous, vexatious, misconceived or lacking in substance" or that "the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulation".
2. The legislative context of these provisions includes the "guiding principle" set out in s 36 of the NCAT Act. In addition, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). The Tribunal is also to act with "as little formality as the circumstances of the case permit": NCAT Act, s 38(4).
3. The power to dismiss a complaint because the conduct, even if proven, would not disclose a contravention of the legislation is similar to the inherent power of courts to strike out proceedings that are bad in law or clearly hopeless: Bernard Carins, Australian Civil Procedure 10th edition, Thomson Reuters at 504. A pleading will be struck out if the court is satisfied that even if the plaintiff proves all the factual allegations in the pleading, those facts would not establish the essential elements of a cause of action.
4. While directions are often made for an applicant alleging a breach of the Anti-Discrimination Act to lodge Points of Claim, pleadings are not always required. Under s 94A, the complaint is to comprise the original complaint lodged with the President, any amendment to the complaint and any other documents or information obtained or recorded by the President that help identify the subject-matter of the complaint. Subject to the rules of procedural fairness, an applicant is not obliged to plead a cause of action in a way that would satisfy the rules of pleadings in courts. Before dismissing proceedings the Tribunal would have to be satisfied that on the basis of the complaint lodged with President, the material in the President's Report and any amendments to the complaint, there is no provision of the legislation which could possibly have been breached.
5. The term "lacking in substance" has a slightly wider meaning. In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 45 the Court of Appeal interpreted the phrase in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, "It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than "not reasonably arguable". Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

Application of principles to Allegations 1, 2, 4 and 5

1. Allegation 5 is that the University required Mr Braiding to pay a $100 fee before his paper would be re-marked. In the "Points" document, Mr Braiding merely said that he was unable to pay the $100 to have his assignment remarked because of the issues associated with his mental illness. In further submissions filed on 11 March 2016, Mr Braiding characterises this allegation as a breach of s 49L(2)(c) of the Anti-Discrimination Act which makes it unlawful for an educational authority, such as the University, to discriminate against a student on the ground of disability by subjecting him or her to a detriment.
2. An application for a re-mark of an assessment item is governed by Part T of the University's Assessment Policy. Clause 72 stipulates that a prescribed fee is payable. According to the University, the intention of the fee is to acknowledge that significant University resources are required to have an assessment re-marked. If the mark is raised, the prescribed fee is refunded.
3. To constitute discrimination on the ground of disability, the decision to charge a $100 fee would have to satisfy one of the definitions of discrimination in s 49B. Section 49B(1)(a) defines what is known as "direct discrimination" and s 49B(1)(b) defines what is known as 'indirect discrimination". Mr Braiding described this allegation in his "Points" document in a way that is consistent with him relying on direct discrimination. For example, Mr Braiding said that he is suffering from economic hardship because of he has a mental illness and the University Ombudsman knew of his disability but refused to waive the fee.
4. Mr Braiding was a student of an educational authority. He claims to have a disability which would come within the definition of that term in the legislation. He also claims that, by its conduct, the University has subjected him to a detriment: Anti-Discrimination Act, s 49L(2)(c). Mr Braiding would have to prove that the conduct constitutes discrimination on the ground of disability. Even if Mr Braiding proves that the University refused to waive the fee, he will not be able to prove the elements of direct discrimination. By requesting that he pay $100 for a re-mark, the University has not treated Mr Braiding any differently from the way in which it has treated or would treat a person without a disability in the same or similar circumstances. The policy applies to all students, not just those with a disability. For the same reason, the complaint of direct disability discrimination in Allegation 5 lacks substance.
5. In the final paragraph of his further submissions dated 11 March 2016, Mr Braiding makes statements which are consistent with him characterising this allegation as constituting indirect discrimination as defined in s 49B(1)(b). He says, for example, that the rule impacts on people who are on a disability support pension and who cannot work because of a disability. He fails to identify a further element of indirect discrimination which is that the requirement is not reasonable having regard to the circumstances of the case. This is the first time Mr Braiding has made submissions which are consistent with a claim of indirect discrimination. The University was not on notice of that claim and did not address it in their submissions.
6. In Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 the Administrative Decisions Tribunal (ADT) commented that we "should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us". A significant qualification to this principle is that the evidence supporting the claim must be before the decision maker. It would be wrong for a decision maker to suggest a claim where there was insufficient evidence to support it. For example, in Walker v State of New South Wales [2003] NSWADT 13 at [11], the ADT said that there was insufficient evidence to "fashion" a case of indirect discrimination: The Tribunal's function as an impartial decision-maker is likely to be imperilled if, in the absence of evidence, it constructs arguments in support of particular complaints. This latter point is of particular relevance in this case where, with appropriate evidence, it may have been possible to mount claims of direct and/or indirect discrimination. As the case law demonstrates (see e.g. Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349), indirect discrimination cases are particularly complex. Considerable legal skill is required to construct a case and to gather and present evidence in support of it..
7. Mr Braiding has not provided any evidence or submissions to support his assertion that the requirement to pay $100 for a remark would have an adverse impact on people with disabilities. He merely says that as a person who is on a Disability Support Pension he cannot afford to pay. Nor does Mr Braiding address the element of indirect discrimination that "it is not reasonable having regard to the circumstances of the case": Anti-Discrimination Act, s 49B(1)(b). He provides no evidence of that matter despite the fact that the onus is on him to establish each element of his complaint.
8. While it is possible that with adequate evidence and legal argument, Mr Braiding may be able to prove that the University has discriminated against him 'indirectly' on the ground of his disability, he has not put forward a cogent legal basis for that complaint or any evidence to support it. On the basis of the 'pleadings' and 'evidence' filed, a complaint of indirect discrimination is not reasonably arguable. Allegation 5 is dismissed as lacking in substance.
9. Allegations 1 and 2 are that the University discriminated against and victimised Mr Braiding by dismissing his complaint about the way he was marked by Mr Gardini and Ms Castillo. In further submissions filed on 11 March 2016, Mr Braiding characterises this allegation as a breach of s 49L(2)(a) or (c) of the Anti-Discrimination Act which makes it unlawful for an educational authority, such as the University, to discriminate against a student on the ground of disability by denying him access to a benefit provided by the University or by subjecting a student to a detriment. I understand that Allegation 1 is an allegation of direct disability discrimination as defined in s 49B(1)(a) and that allegation 2 is a complaint of victimisation as defined in s 50.
10. Mr Braiding alleges that Ms Daye, the University Ombudsman, refused to adjust his mark. Mr Braiding makes other allegations against the University Ombudsman such as that she threatened him with expulsion if he did not speak only to her but these allegations are not part of Mr Braiding's complaint as identified by the Tribunal in Braiding v Charles Sturt University [2015] NSWCATAD 242.
11. Mr Budack wrote to Mr Braiding on 30 July 2014 about the concerns he had raised under the University's Complaints Policy. Mr Braiding specifically asked the University to review the fee for "Review of Mark' applications by students on Disability Support Pensions (DSP). Mr Burdack advised Mr Braiding in the letter that he had requested the Division of Finance to consider this issue. He also apologised for "any concern caused by the manner in which communication was handled between yourself and the University Ombudsman". I understand this to be a reference to a meeting Mr Braiding had with the University Ombudsman on 12 May 2014 when Mr Braiding says Ms Daye threatened to expel him. Mr Budack concluded by advising Mr Braiding that his complaints were now "formally closed".
12. To establish that dismissing or 'closing' the complaints constitutes disability discrimination, Mr Braiding would have to establish that the University treated him less favourably than, in the same circumstances or in circumstances which are not materially different, the University treats or would treat a person who does not have a disability. Mr Braiding would also have to establish that at least one of the reasons for dismissing the complaints was his disability.
13. Mr Braiding disagreed with the University Ombudsman's interpretation of the Publication Manual of the American Psychologists Association (APA). The evidence, on which Mr Braiding relies, including the recording of the meeting with the University Ombudsman, discloses that the overt reason for dismissing Mr Braiding's complaints was that he did not pay the $100 fee for a re-mark. To prove a breach of the Anti-Discrimination Act, Mr Braiding would have to establish that an inference should be drawn that one of the reasons for dismissing the complaint was his disability. It is not in dispute that the University would have re-marked his assignment if Mr Braiding had paid the $100. In those circumstances there is no basis for drawing an inference that a reason for refusing to re-mark the assignment was his disability. In those circumstances, the complaint lacks substance and is dismissed.
14. In relation to Allegation 2, the complaint of victimisation, the Tribunal directed Mr Braiding to file Amended Points of claim identifying the precise conduct that was the trigger for the alleged victimisation and the precise conduct which constitutes the detriment under s 50. The Tribunal added that he also needs to explain how the detriment was "on the ground of" any of the matters in s 50(1)(a)-(d) of the Anti-Discrimination Act.
15. In the "Points" document under heading "Point 5", Mr Braiding provides the following information: Previously, teacher Peter Gardini marked me incorrectly and he was asked by Learner Support, Nicole Mitchell, for her opinion. When Nicole said I was right on two occasions where Peter had marked me incorrectly, then Peter had the mark changed. However, when the University Ombudsman Miriam Daye was made aware that I had complained to Learner Support and had been told that I am right, Miriam decides to treat me less favourably than the other students by making it so that I cannot talk to anyone else about the matter except her …. Also, teacher Paola Castillo could have also easily done something about the situation as Learner Support Debbie Wheeler was going to ask Paola to review the mark until Debbie realised that Miriam was involved. Debbie then stopped trying to resolve the matter and Paola also refused to assist.
16. Mr Braiding has not identified, either in this passage or anywhere else in the material, something that he has done which comes within the matters listed in s 50(1)(a) - (d). In particular he has not alleged that any person "has committed an act which, whether or not the allegation so states, would amount to a contravention of the Anti-Discrimination Act". The allegations that he says led to the University Ombudsman dismissing his complaint are not allegations of discrimination. They are allegations about the way he was marked. Allegations of this kind are not covered by s 50 and the complaint of victimisation is not reasonably arguable. Allegation 2 is dismissed as lacking in substance.
17. Allegation 4 is that the decision by the University Ombudsman to complain about his aggressive behaviour constituted victimisation in breach of s 50 of the Anti-Discrimination Act because it was in retaliation for Mr Braiding having complained about Peter Gardini's violence towards him and about the way he was marked by Paolo Castillo.
18. In the "Points" document, Mr Braiding says that the University Ombudsman victimised him because of allegations he had made to teachers and senior staff. However there is no evidence that any of these allegations come within s 50(1)(a)-(d) of the Anti-Discrimination Act. They are not allegations of discrimination but allegations about the way he was marked. Allegations of this kind are not covered by s 50 and the complaint of victimisation is not reasonably arguable. Allegation 4 is dismissed as lacking in substance.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2016