Hardgrove v University of NSW [2025] NSWCATAD 287 | Case summary

NCAT Administrative and Equal Opportunity|2025-11-19

The Applicant remains with the evidential burden to prove discrimination. A respondent has no obligation to explain the reasons for their conduct once it has been established that there has been less favourable treatment.

Allegation 1 - the Applicant being afraid to be in Australia.

Allegation 2 - whether the Sydney campus had resources to manage [her] vulnerability as a target of stalking, in instances where local police have no jurisdiction.

The Applicant alleges that in a discussion and a follow up email dated 31 October 2024, she asked Professor Salim if the Sydney campus had 'the resources to manage [her] vulnerability as a target of stalking, in instances where local police have no jurisdiction'.
I make similar findings with respect to allegation 1. That is, the Applicant has not established that the Respondent treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a male candidate for the PhD and a reason for the treatment was that she is a woman.
In my view, a Tribunal hearing this matter would be unlikely to draw any inference that the Applicant's sex was a reason.
This allegation lacks merit and it would not be fair or just for it to proceed.

Allegation 3 - Professor Salim retracted the offer of supervision 'due to her status as a victim of gendered violence'. Professor Salim requested the Applicant to do extra work on a research plan after agreeing to supervise her, which she could not do because she was dealing with a sexual assault matter and resulting housing instability.

I find there is no likely evidence that the Applicant was treated less favourably in the same circumstances, or in circumstances which are not materially different, than it treated or would have treated a male student. There is no evidence that women are only victims of sexual violence. To the contrary, sexual violence can and does occur to people of all sexes. There is no evidence that the Applicant was treated differently because she is a woman.
I am not satisfied that a Tribunal hearing this matter would find that the Applicant was treated any differently to which another student may have been treated because she is a woman. The allegation lacks merit and it would not be fair or just for it to proceed.
In conclusion, I am not satisfied that the Applicant has satisfied that it would be fair or just for the complaint to proceed.
To prove victimisation the Applicant would have to prove that:

(1) she did one or more of the things listed in s 50 (a) - (d) of the Act, which I will refer to as the "trigger";

(2) the Respondent subjected her to a detriment; and

(3) the detriment was on the ground that the Applicant did one of the things listed in s50 (a) - (d) of the Act, which I will refer to as "causation": see Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

There is no dispute that the Applicant made a complaint or complaints to the ADB against the Respondent, in relation to her alleged treatment at UNSW. This would amount to a "trigger" for the purposes of s 50(1)(a) of the Act.
However, the evidence does not include any detriment. This is because the applicant's claim of alleged unlawful discrimination relates to her not being able to enrol in the PhD course, which occurred before the complaint to ADNSW. I am also not satisfied that the evidence satisfies a claim of victimisation for the purposes of the Act.

(1) Leave is refused for the Applicant's complaint of sex discrimination and victimisation to proceed.

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.

Anti-Discrimination Act 1997(NSW)

At the Applicant's request, ADNSW referred the complaint to the Tribunal pursuant to s 93A of the Act. Pursuant to s 96(1) of the Act, leave must be granted by the Tribunal for the complaint to proceed.
A hearing on the question of whether leave ought to be granted by the Tribunal took place on 25 June 2025 by AVL. The Applicant provided the Tribunal with a bundle of written submissions and evidence and made oral submissions. The Respondent opposed leave being granted and provided the Tribunal with written and oral submissions.
I explained to each of the parties at the hearing the nature of the leave hearing and what was required of an application under s 96 of the Act. I outlined to the participants what constituted sex discrimination in education and victimisation with reference to the relevant provisions of the Act. I explained that the Applicant would need to demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 38 ('Jones'); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 ('Ekermawi'). I explained that the Tribunal would accept the evidence provided in this application at its highest for the purposes of determining whether leave ought to be granted.
For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones at [58]; Ekermawi at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
In determining whether to grant or refuse leave for a complaint to proceed pursuant to s 96(1) of the Act, the applicant's evidence must be taken at its highest - that is, everything the applicant has put in evidence is accepted as true - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: at ).

When considering these questions the Tribunal should ask in addressing the causation element of direct discrimination, is the person's sex at least one of the 'real', 'genuine' or 'true' reasons for the treatment; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may be relevant. As with the vast majority of complaints of discrimination, the causal link between the applicant's sex and the alleged treatment would have to be established by inference from the primary facts; Seltsam Pty Limited v McGuinnes [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 70 are relevant:

Hardgrove v University of NSW [2025] NSWCATAD 287;

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