Hardgrove v University of Technology, Sydney [2025] NSWCATAD 306 | Case summary

NCAT Administrative and Equal Opportunity|2025-12-02

For the reasons set out above, I have decided that the balance of consideration favours the refusal of leave.
The obstacle the Applicant faces is that she was unable to identify any factors which demonstrated that her age and or her disability were one of the real, genuine or true reasons for the actions of the Respondent. She admits that the Respondent did not know that she had a disability and, to the extent that she was discriminated against on the basis of her age, her age was not disclosed but may have been inferred from the details in her curriculum vitae. As set out in the facts above, I was unable to detect any alleged facts connecting the respondent's decision to end the selection process to Ms Hardgrove's disability or age. By contrast, the Respondent presented evidence of the reasons for its decisions, which I have accepted as being unrelated to Ms Hardgrove's age or disability.
I find that there is a material absence of facts or alleged facts from which the Tribunal could make a reasonable and logical inference that any of the alleged conduct was committed because of Ms Hardgrove's age or her disability. Accordingly, it is not probable that the Applicant can establish a causative connection between the conduct of the respondent and her age or disability. For that reason, the complaint lacks substance and leave should not be granted for Ms Hardgrove to proceed in the Tribunal.

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.

Where, as here, the President declines a complaint under s 92 of the Anti-Discrimination Act, the President must refer the complaint to the Tribunal if a complainant makes a written request: Anti-Discrimination Act, s 93A.
Where the President decides to accept a complaint under s 89B, the complaint must be investigated: s 90(1) of the Anti-Discrimination Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, the complaint may be declined in whole or in part: Anti-Discrimination Act, 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].
A declined complaint referred to the Tribunal may not be the subject of proceedings before it without the leave: Anti-Discrimination Act, s 96(1). In that regard, s 96(1) of the Anti-Discrimination Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [57]; and the decision of at first instance in those proceedings Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi v ADT).
The Tribunal's exercise of the discretionary power must be exercised having regard to the purpose of the legislative scheme established by the Anti-Discrimination Act, which makes it unlawful to discriminate, harass, vilify and victimise people or a group with defined attributes and which promotes equality of opportunity between all persons.
The Tribunal is entitled to infer certain things from the fact that leave is required. They include the fact that the need for leave is a "control filter" designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25].
Moreover, the discretion is to be further guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones v Ekermawi at [57]; Ekermawi v ADT at [32].
As noted above, ADNSW declined Ms Hardgrove's complaint on the basis that it was lacking substance. When considering whether a complaint lacks substance, the Tribunal has regularly adopted the approach outlined in Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. In doing so, it is orthodox to take a complainant's evidence at its highest; that is to accept everything the applicant has put in evidence and then determine whether, on that basis, the complaint can possibly succeed. This is similar to treating an application as if the Respondent had made a "no case" submission. That was how the Tribunal approached substantive proceedings in the Prakash case_._ However, Prakash was not concerned with the question of leave after a complaint was declined under s 92. In those proceedings, the dismissal was considered only after the complainant had been given the opportunity to present his case in full and have his account tested in cross-examination. Prakash is an important decision when the Tribunal exercises its powers of dismissal under s 102 of the Anti-Discrimination Act, but its applicability is somewhat limited regarding the question of whether to grant leave under s 96 of the Anti-Discrimination Act.
Ultimately, I consider the better approach in considering the question of whether to grant leave involves the exercise of the Tribunal's unfettered discretion to determine whether it would be fair and just, in the particular circumstances of this case, for leave to be granted, with the onus falling upon the applicant to establish that leave should be granted: Jones v Ekermawi at [57]-[59] approving Ekermawi v ADT at [13],[27],[40].
Schmidt AJ in Ekermawi at [38] after considering the application of the statutory provisions constituting the predecessor tribunal and their interaction with s 96(1), explained what "fairness and justice" means in the context of s 96(1) of the Anti-Discrimination Act in the following way:

To substantiate a complaint of direct discrimination, a complainant must establish that they were treated differently and that the differential treatment was on the ground of discrimination: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In other words, there must be conduct, and a genuine reason for that conduct was discrimination.
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Anti-Discrimination Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Anti-Discrimination Act, the act is taken to be done for that reason: Anti-Discrimination Act, s 4A, 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; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.
A complainant bears the onus of proof that he or she was treated less favourably "on the grounds of", "because of" or "due" (at least in part) a specific attribute: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
Here, and common to many cases, there is no direct evidence of causation on the grounds of age and/or disability. Accordingly, Ms Hardgrove would need to establish a causal link between her age and or disability and the alleged treatment by inference from the available facts. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: ; (2000) 49 NSWLR 262; at ).

Hardgrove v University of Technology, Sydney [2025] NSWCATAD 306;

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