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[2026] NSWCATAD 291
General information, not legal advice.
NCAT Administrative and Equal Opportunity
2026-09-24
Dr J Lucy, Principal Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: HYH v University of Wollongong (No 3) [2026] NSWCATAD 291
Hearing dates: 10 September 2026
Date of orders: 24 September 2026
Decision date: 24 September 2026
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Principal Member
Decision: Order made on 10 September 2026 in 2026/347017:
(1) The applicant's application for interim orders under section 105 of the Anti-Discrimination Act 1977 is dismissed.
Order made on 10 September 2026 in 2026/357201:
(1) The applicant's application for interim orders under section 105 of the Anti-Discrimination Act 1977 is dismissed.
Orders made on 24 September 2026 in 2026/347017:
(1) The respondent’s application for summary dismissal of the applicant’s application for interim orders is dismissed.
(2) To the extent necessary, a hearing of the parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with.
(3) The disclosure of the name of the applicant is prohibited.
(4) The publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026, is prohibited.
(5) The parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) are otherwise dismissed.
(6) The respondent is to provide to the applicant and the Tribunal, within 7 days of the date of these orders, any further submissions in support of its application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence in support, including submissions in relation to the possibility of a lump sum costs order.
(7) The applicant is to provide to the respondent and the Tribunal, within 14 days of the date of these orders, any further submissions in response to the respondent’s application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence on which she wishes to rely in relation to the costs application.
(8) The parties are to address in their submissions whether the Tribunal should dispense with a hearing of the costs application.
Orders made on 24 September 2026 in 2026/357201:
(1) The respondent’s application for summary dismissal of the applicant’s application for interim orders is dismissed.
(2) To the extent necessary, a hearing of the parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with.
(3) The disclosure of the name of the applicant is prohibited.
(4) The publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026, is prohibited.
(5) The parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) are otherwise dismissed.
(6) The respondent is to provide to the applicant and the Tribunal, within 7 days of the date of these orders, any further submissions in support of its application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence in support, including submissions in relation to the possibility of a lump sum costs order.
(7) The applicant is to provide to the respondent and the Tribunal, within 14 days of the date of these orders, any further submissions in response to the respondent’s application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence on which she wishes to rely in relation to the costs application.
(8) The parties are to address in their submissions whether the Tribunal should dispense with a hearing of the costs application.
Original judgment source is linked above.
Catchwords: HUMAN RIGHTS – discrimination – interim orders sought under section 105 of the Anti-Discrimination Act 1977 (NSW) where applicant brought two previous applications for interim orders – summary dismissal application – whether proceedings brought for improper purpose – whether principle of res judicata applies – whether applicant is estopped from having issues determined - whether Tribunal has power to make the orders sought – whether proposed interim orders would “preserve the rights of the parties to the complaint” within section 105(1)(b) of the Anti-Discrimination Act 1977 (NSW) – identification of relevant rights to be preserved - whether proposed interim orders would return parties to circumstances before alleged contravention within section 105(1)(c) of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481
Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63
Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq) (1993) 115 ALR 377
HYH v University of Wollongong [2026] NSWCATAD 282
HYH v University of Wollongong (No 2) [2026] NSWCATAD 283
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Leung v Deng [2025] NSWCATAP 69
Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Pearson v Clark [2016] NSWCATAP 134
Zahan and Jubly v Aly Pty Ltd [2024] NSWCATAP 55
Texts Cited: None cited
Category: Consequential orders
Parties: HYH (Applicant)
University of Wollongong (Respondent)
Representation: Solicitors:
Applicant (self-represented)
Kennedys (Australasia) Partnership (Respondent)
File Number(s): 2026/00347017 and 2026/00357201
Publication restriction: (1) The disclosure of the name of the applicant is prohibited.
(2) The publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026, is prohibited.
The applicant is a student enrolled in the Doctor of Medicine program at the University of Wollongong (the University). She has made three complaints of disability discrimination to the Anti-Discrimination Board against the University. This decision concerns the applicant’s applications to the Tribunal under s 105 of the Anti-Discrimination Act 1977 for interim orders in relation to her second and third complaints, including orders allowing her to progress to Phase 2 of the Doctor of Medicine program, in circumstances where she has not passed the Phase 1 practical examinations.
The applicant’s first complaint concerned alleged discrimination on the ground of disability in the University’s conduct of practical examinations at the end of Phase 1 of the Doctor of Medicine program. In earlier proceedings concerning that complaint, I dismissed the applicant’s application to the Tribunal for interim orders. The interim orders she had proposed would have allowed her to progress to Phase 2 of the program before her disability discrimination complaint was determined.
The applicant’s second complaint concerned alleged discrimination in the University’s management of her absences from course work for medical reasons; and the third concerned the Dean of Medicine’s handling of her request for reconsideration of her application to progress to Phase 2 of the program.
The interim orders the applicant sought in relation to the second and third complaints included an order requiring the University to allow her to participate in Phase 2 of the program and an order requiring the University to allow her to sit a new form of the practical examinations so that she could then progress to Phase 2 with her original cohort.
I did not dismiss the applications summarily, as the University asked me to do, because I am not persuaded that the Tribunal is functus officio, that the principle of res judicata applies or that the proceedings are otherwise an abuse of process. I have, however, dismissed the applicant’s applications for interim orders on their merits.
The applicant has not established that the orders she sought would preserve the status quo or the parties’ rights or return the parties to the circumstances they were in before the alleged conduct occurred. Accordingly, the orders sought are not orders which the Tribunal may make under s 105(1) of the Anti-Discrimination Act. If I am wrong about that, I would decline to make the orders sought by the applicant for discretionary reasons.
The applicant and students in her cohort enrolled in the Doctor of Medicine program at the University were required to complete Phase 1 of the program over 18 months. At the end of that period, they were required to achieve a satisfactory grade in the MEDI1991 written examination and a satisfactory grade in the Phase 1 Objective Structured Clinical Examination (OSCE) in order to progress to Phase 2.
The applicant was the subject of an approved access plan at the University relating to a medical condition from which she suffered. This involved adjustments such as allowing her more time to complete assessable tasks and not having morning exams.
The Phase 1 OSCE comprised fifteen “stations.” Students were tested on their clinical skills at each station. Students spent 10 minutes at each station with a 2 minute gap between each station.
On 15 May 2026, the applicant participated in the summative OSCE. She passed 8 stations and failed 7 stations. Students are required to pass 9 stations to obtain a satisfactory grade.
The applicant participated in a “resit” OSCE on 3 June 2026, but again failed 7 of the 15 stations.
As a result of this, the applicant was not permitted to progress to Phase 2 of the Doctor of Medicine program with the rest of her cohort. Phase 2 of the program involves hospital placements.
Instead, the applicant was required to repeat 12 months of MEDI1991. She was also offered an opportunity to resit the OSCE in December 2026.
The applicant lodged a complaint of disability discrimination in education against the University with the President of the Anti-Discrimination Board on 5 August 2026 (the first complaint). In that complaint, the applicant described her disability as “chronic medical conditions causing significant pain, fatigue and reduced physical endurance.” She stated in her complaint that the University did not adequately identify, consider or implement effective adjustments for the practical examinations and, in particular, the adjustments provided did not sufficiently address the cumulative physical demands of the assessment.
On 6 August 2026, the applicant applied to the Tribunal for interim orders under s 105 of the Anti-Discrimination Act (proceedings 2026/324406) (the first proceedings). The orders the applicant sought included an order permitting her to be enrolled in and participate in MEDI992 / Phase 2 of the Doctor of Medicine program. Phase 2 of the program involved a number of hospital placements.
Section 105(1) of the Anti-Discrimination Act provides:
“105 Interim orders
(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order—
(a) to preserve the status quo between the parties to the complaint, or
(b) to preserve the rights of the parties to the complaint, or
(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,
pending determination of the matter the subject of the complaint.”
The applicant submitted that an order permitting her to continue with Phase 2 of the program would “preserve the rights of the parties” within s 105(1)(b) of the Anti-Discrimination Act.
On 10 August 2026, Phase 2 of the program commenced.
At the conclusion of a hearing on 11 August 2026, I dismissed the applicant’s application for interim orders. I provided the parties with written reasons for that decision on 24 August 2026 (HYH v University of Wollongong [2026] NSWCATAD 282). I found that the order the applicant sought could not properly be characterised as an order “to preserve the rights of the parties to the complaint” within s 105(1)(b) of the Anti-Discrimination Act. I observed in my reasons for decision that any existing “right” the applicant had could be characterised as a right to have her examinations conducted without unlawful discrimination, but that the applicant did not have any right to progress to Phase 2 of the Doctor of Medicine program before she had successfully completed Phase 1.
When I delivered my reasons for decision, I provided the parties with an opportunity to apply for orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The parties both applied for non-publication and non-disclosure orders and provided the Tribunal with written submissions in support.
On 16 August 2026, the applicant filed an amended interim application (proceedings 2026/339749) seeking orders under s 105(1) of the Anti-Discrimination Act (the second proceedings) in relation to the first complaint.
That application was heard by Senior Member Anderson on 19 August 2026. After hearing from the parties, the Tribunal dismissed the application. The order indicates that the member did so on the basis that the Tribunal was functus officio so that the further interim application was an abuse of process.
The applicant enrolled in Phase 1 again, as the University required her to do to progress to Phase 2. She sought medical leave at the beginning of Semester 2, which was granted.
On 16 August 2026, the applicant emailed the Head of Students at the University stating that she was “writing to formally address the implementation of [her] Access Plan contingent upon [her] upcoming progression to Phase 2.” The applicant stated that she had sought assistance from Access Support regarding a temporary three-week period of medically necessary absence. She asked for reasonable adjustments to be determined in advance of starting hospital placements as part of Stage 2 and requested “a formal multidisciplinary consultation” involving herself, the Head of Students, the relevant Clinical/ Hospital Placements Coordinator and Access Support.
The Head of Students replied to the email on 16 or 17 August 2026, stating that the applicant was currently in Phase 1 and asking her to “follow the usual process” in relation to the temporary three-week period of medically necessary absence.
On 22 August 2026, the applicant emailed the Dean of the Graduate School of Medicine asking her to reconsider the applicant’s progression to Phase 2 “in light of materially changed circumstances.” Those circumstances were said to be that students completing Phase 1 were now required to pass a 10-station OSCE, rather than a 15-station OSCE. The applicant asked to progress to Phase 2 without another OSCE or, alternatively, to undertake the current 10-station OSCE with reasonable adjustments and to progress without repeating written examinations.
On 24 August 2026, the Dean replied to the applicant’s email, informing her that, as per previous correspondence, she could not progress to Phase 2, as she had not met the MD course progress requirements, but had been offered the opportunity to repeat Sessions 2 and 3 of Phase 1. The Dean stated in the email: “As the delegated authority I have previously reviewed your request and I consider this matter closed.”
As at 4 September 2026, the applicant had not attended any classes in person in Phase 1, in which she was enrolled for the second time. On 4 September 2026, the applicant submitted a further medical certificate and sought a further leave of absence until 11 September 2026. The period of leave from the beginning of Semester 2 to 11 September 2026 was approximately 8 weeks.
The applicant lodged further complaints of disability discrimination in education against the respondent with the President of the Anti-Discrimination Board on about 21 August 2026 (the second complaint) and 26 August 2026 (the third complaint).
The second complaint concerned alleged discriminatory conduct by the University in the period 6 August 2026 to 21 August 2026. The subject of the complaint was a “direction” received from the Head of Students on 16 or 17 August 2026 (in the email referred to above) concerning the management and documentation of absences associated with the applicant’s medical conditions, “together with reference to potential consequences for [her] academic/ professional standing should those absences continue.”
The third complaint concerned alleged discriminatory conduct by the University in the period 22 August 2026 to 26 August 2026. The third complaint concerned the Dean’s conduct in responding to and refusing the applicant’s request that the Dean reconsider her Phase 2 progression.
On 21 August 2026 and 27 August 2026, the applicant applied to the Tribunal for interim orders in respect of each of the second and third complaints (proceedings 2026/347017 and 2026/357201; the third and fourth proceedings respectively).
The University applied for summary dismissal of the third and fourth proceedings on the basis that they were vexatious, misconceived, lacking in substance and an abuse of process (NCAT Act, s 55(1)(b)). The respondent also applied for costs.
The applicant’s third and fourth applications for interim orders and the respondent’s summary dismissal and costs applications in both proceedings were listed to be heard together on 10 September 2026. The parties were given an opportunity to provide the Tribunal and one another with submissions and evidence in advance of the hearing, which they did.
In addition to her written submissions, the applicant relied upon a number of documents, including a student assessment report, emails with the University, her access plan, the Outcome of the Stage 2 Review of Academic Decision signed by the University’s Student Ombudsman and an extract from the subject outline.
The respondent relied upon two statutory declarations of the Dean of Medicine, Professor Zsuzsoka Kecskes, made on 10 and 11 August 2026, on which it had relied at the hearing of the first application. It also relied upon a third statutory declaration of Professor Kecskes, made on 4 September 2026.
The applicant appeared by telephone at the hearing and Ms Dai appeared by audio-visual link for the respondent. Both made oral submissions in relation to the applications. They both asked for their applications for non-publication and non-disclosure orders, made in relation to the first proceedings, to be considered in the third and fourth proceedings.
I indicated that I would give the parties an opportunity to make further submissions in relation to the respondent’s costs application after providing them with my written reasons for decision.
At the conclusion of the hearing, I dismissed the applicant’s applications for interim orders and I informed the parties that I would provide them with my written reasons for decision in due course. These are those reasons.
At the time of the hearing, the parties had made applications for non-disclosure and non-publication orders in the first proceedings, following the hearing the applicant’s first application for interim orders. The applications for non-disclosure and non-publication orders in the first proceedings had not been determined.
The parties indicated at the hearing of the third and fourth applications that they were content for me to have regard to their submissions made in support of their applications for non-disclosure and non-publication orders in the first proceedings and treat them as submissions in support of applications for non-disclosure and non-publication orders in these proceedings.
I have accordingly treated the applications for non-disclosure and non-publication orders made in the first proceedings as applications in these proceedings. That is consistent with the Tribunal’s power to determine its own procedure, and the injunction that it “act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (NCAT Act, s 38(1) and (4)).
I favour the view that I do not need to dispense with a hearing of the applications for non-disclosure and non-publication orders made in these proceedings, because the parties had an opportunity to make submissions in support of those applications at the hearing, but chose instead to rely upon their written submissions made in relation to the first application.
I acknowledge, however, that it is arguable that, as the parties provided written submissions in support of their applications for non-disclosure and non-publication orders, and I did not hear oral argument in relation to those applications, I need to decide whether to dispense with a hearing of the applications or whether to hold a further oral hearing. If that is so, the parties were given an opportunity to make submissions at the hearing as to whether I should take the course of considering their written submissions when determining the applications, without another oral hearing, and consented to that course (see NCAT Act, s 50(3)).
I am satisfied that the issues arising for determination on the parties’ applications for orders under s 64 of the NCAT Act can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (NCAT Act, s 50(2)). Accordingly, to the extent that it is necessary, I have decided to dispense with a hearing of those applications.
In the first proceedings, the applicant applied for orders prohibiting publication or disclosure of her name and asked that she be identified by a pseudonym in any published decision. The respondent sought orders of wider application, prohibiting publication and disclosure of the reasons for decision and of the evidence. One of the bases on which the respondent sought those orders was that the evidence contained information relating to the University’s assessment processes.
On 21 September 2026, I determined the applications for non-publication and non-disclosure orders in the first proceedings and published my decision (HYH v University of Wollongong (No 2) [2026] NSWCATAD 283).
I made an order in the first proceedings prohibiting disclosure of the applicant’s name, pursuant to s 64(1)(a) of the NCAT Act. For the reasons given in that decision, I am satisfied that it is desirable to make the same order in these proceedings. I have taken into account that these reasons for decision also make reference to the applicant’s sensitive health information and that disclosing the applicant’s name in these reasons would likely reveal her identity in relation to the other proceedings.
I also decided in the first proceedings to make an order prohibiting the publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026. The basis for that order is that disclosure of those annexures would be likely to reveal confidential information about the University’s assessment processes. The respondent relied upon the same statutory declaration in these proceedings, and I am satisfied that it is desirable to make an order prohibiting publication of Annexures D and E, for the reasons given in my decision in relation to the first proceedings.
I have reviewed the statutory declaration of Professor Kecskes, made on 4 September 2026. It does not appear to contain any confidential information about the University’s assessment processes and it was not submitted, on the University’s behalf, that it did.
I have considered the University’s submissions, made in the first proceedings, in the context of the evidence in these proceedings, and I am of the view that the reasons I gave for dismissing the University’s applications for an order prohibiting publication of my reasons for decision, and for an order prohibiting publication of all of the evidence, also apply to these proceedings.
Accordingly, I have made an order prohibiting the the publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026, and I have otherwise dismissed the respondent’s application for orders under s 64(1) of the NCAT Act. Although the order in the first proceedings would likely operate to prohibit the publication of those annexures if accessed from the files in the third and fourth proceedings, for abundance of caution, I have made the order in the third and fourth proceedings as well.
As indicated above, the University applied for summary dismissal of the third and fourth proceedings under s 55(1)(b) of the NCAT Act. The University contended that the proceedings were vexatious because they were brought for a collateral purpose; that the Tribunal was functus officio; and that the doctrines of res judicata and estoppel applied.
In support of its summary dismissal application, the University submitted that the circumstances of the third and fourth applications were not materially different from those of the first application. It also submitted that the relief sought “remain[ed] the same at its core” in that the applicant sought to progress to Phase 2 despite failing Phase 1 of her course.
The University also submitted that the proceedings were “vexatious” because the applicant was predominantly maintaining the proceedings for a collateral purpose, being to force the University to capitulate to her request to allow her to progress to Phase 2 (relying upon Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491).
I am not persuaded that the Tribunal is functus officio, as the respondent claims.
The Tribunal (constituted by Senior Member Anderson) held that it was functus officio in relation to the second proceedings. That was in circumstances where the applicant was purporting to amend an application for interim orders which had already been determined (being the first application), and where the second application for interim orders was made in relation to the same complaint to the Anti-Discrimination Board as the first application.
The circumstances of the third and fourth proceedings are different.
Each application for interim orders relates to a different complaint to the President of the Anti-Discrimination Board, and each of those complaints relates to a specific (and different) time period from that of the first complaint.
The Tribunal did not determine either of those applications in the first or second proceedings.
The University submitted that “the reality is the circumstances giving rise to the cause of action and the remedies sought are all interrelated with the First Application.” That may be so, but it does not mean that the Tribunal has already determined the third and fourth applications for interim orders.
By determining the third and fourth applications for interim orders, the Tribunal is not “revisit[ing] its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances” (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [7]). It is not revisiting its own decision at all. The Tribunal is making new decisions, in relation to new applications, albeit applications which have some factual and legal issues in common with the first application.
In order to establish that the proceedings were vexatious as claimed, the respondent must establish that a collateral purpose, determined objectively, was the predominant purpose of the proceedings (see Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [28], [39]).
I am not satisfied that there is a proper basis on which to infer that the applicant was predominantly maintaining the proceedings to force the University to capitulate to her request to allow her to progress to Phase 2. The applicant put forward what she described as new arguments and applied for relief, which was at least partly different from that claimed in the earlier applications, in her third and fourth applications to the Tribunal. The conduct the subject of the applications was different from that which was the subject of the first application. It may be that the applicant considered that those differences might be sufficient to persuade the Tribunal to grant the relief sought in the third and fourth applications for interim orders.
I have considered the respondent’s submission that the applicant has lodged four appeals within the University; that she has brought four applications in the Tribunal for interim relief seeking order allowing her to continue to Phase 2, or to keep that path available to her; and that she has been on medical leave for the first eight or so weeks of her Phase 1 enrolment.
The applicant is entitled to bring appeals within the University and they do not demonstrate that the Tribunal applications are brought for a collateral purpose. Nor does the taking of medical leave demonstrate improper purpose. The making of multiple applications in the Tribunal could be indicative, in some circumstances, of an improper purpose. However, there are some material differences between the first application and the third and fourth applications, such that I am not prepared to infer from the making of multiple applications that the applicant has the collateral purpose attributed to her by the University.
I could not conclude, from the objective circumstances, that the applicant brought the third or fourth applications predominantly for purposes other than having the Tribunal adjudicate the issues arising from those applications. It may be inferred from the circumstances of the four applications that the applicant is fixated on continuing to Phase 2 with her original cohort; but that, of itself, does not establish improper purpose.
The respondent also submitted that the “doctrines and established principles of Res judicata and issue estoppel precludes the Applicant from re-litigating a matter or raising an issue of fact or law that has already been determined on its merits between the same parties.” It submitted that the applicant “relies on the same cause of action based on the same rights conferred by ss 108 and 49L of the Act” and that she was “precluded from commencing new proceedings dealing with fundamentally identical issues.”
Res judicata is a principle which operates to preclude a party from relitigating a cause of action when that cause of action has been determined. As the Appeal Panel observed in Leung v Deng [2025] NSWCATAP 69 at [31]:
“Res judicata is the principle of law which prevents a party from bringing a further action in respect of a subject matter raised and determined in a prior final judgment before a competent tribunal between the same parties litigating in the same capacity. If made out, res judicata is a complete bar to the claim (see, eg. Gleeson v The Owners – Strata Plan No 48226 [2018] NSWCATAP 204 at [18]).”
Res judicata is a technical defence to a claim in a legal proceeding (Pearson v Clark [2016] NSWCATAP 134 at [63], citing (with the incorrect citation, which is not reproduced here), Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq*)* (1993) 115 ALR 377, Northrop and Lee JJ at 380). Where a defence of res judicata is raised, “the primary question is whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings” (Jackson v Goldsmith (1950) 81 CLR 446 at 467, cited in Effem Foods at 381).
The principle of issue estoppel precludes a party from challenging a finding of fact determined in previous proceedings between the parties (see, for example, Zahan and Jubly v Aly Pty Ltd [2024] NSWCATAP 55 at [44]) or a determination as to an issue of law in previous proceedings. Where the estoppel concerns a factual finding, the estoppel is confined to ultimate facts and does not extend to mere evidentiary facts (Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (in liq*)* (1993) 115 ALR 377 at 381, citing Jackson v Goldsmith (1950) 81 CLR 446 at 467). Whether the issue is one of fact or law, the issue estoppel is “confined to the matters that are legally indispensable to the prior decision or judgment” (Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68 at [24]).
In Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 at [21], Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ identified the requirements for issue estoppel to apply in a second set of proceedings as being:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
The applicant’s cause of action in these proceedings has its source in s 105 of the Anti-Discrimination Act. The right to apply for an interim order is conferred relevantly upon a “complainant.” A complainant is “a person by whom or on whose behalf a complaint is made” (Anti-Discrimination Act, s 87). A complaint means “a complaint made under section 87A” (Anti-Discrimination Act, s 87). Accordingly, when considering a defence of res judicata, the nature and identity of the complaint, in respect of which an interim order is sought, is relevant.
The applicant’s third application to the Tribunal for interim orders relates to a different complaint from that the subject of the first and second applications. In her third application, the applicant seeks interim relief in respect of her second complaint to the President of the Anti-Discrimination Board, which concerns the Head of Students issuing her with a “direction” on 16 or 17 August 2026 about the management and documentation of absences associated with her medical conditions. The applicant’s first and second applications for interim orders relate to the first complaint, concerning the University’s conduct of practical examinations.
The applicant is not, by the third proceedings, relitigating matters in the first or second proceedings, in circumstances where the third proceedings concern a different disability discrimination complaint alleging different conduct on the part of the University which occurred at a different time. Accordingly, the principle of res judicata does not apply.
The applicant’s fourth application for interim orders also relates to a different complaint from that the subject of the first and second applications, being a complaint about the Dean’s conduct in responding to a request for reconsideration of the applicant’s Phase 2 progression in circumstances which the applicant stated were “materially changed.” The relevant conduct occurred towards the end of August 2026.
It may be accepted that there is an overlap between the nature of the conduct the subject of the first complaint and the third complaint. Both concern, in part, the University’s refusal to allow the applicant to progress to Phase 2. However, the complaints to which the first and fourth proceedings relate are different and concern conduct in different periods of time.
Accordingly, the principle of res judicata does not apply.
The University did not identify in its submissions which factual finding or which legal issue it said was being challenged in these proceedings which had already been determined in previous proceedings. Its submissions did not go much beyond asserting that there was an issue estoppel.
The University has not established that any issue estoppel applies.
For these reasons, the respondent has not persuaded me that the proceedings are an abuse of process, or that I should summarily dismiss the applicant’s third or fourth applications for interim orders under s 55(1)(b) of the NCAT Act.
It is therefore necessary to consider the merits of the applicant’s applications for interim orders and whether the orders she seeks are orders the Tribunal may make under s 105 of the Anti-Discrimination Act.
The applicant indicated that she relied particularly upon s 105(1)(b) and (c) of the Anti-Discrimination Act in relation to the interim orders she sought in her third and fourth applications for interim orders*.*
An interim order may be made under s 105(1)(b) of the Anti-Discrimination Act “to preserve the rights of the parties to the complaint.” The applicant’s third and fourth applications for interim orders both sought an order requiring the University to allow the applicant to participate in Phase 2 of the Doctor of Medicine program.
The “right” the subject of s 105(1)(b) “will often be the 'right' which the applicant seeks to vindicate at the hearing” (Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [19]). An interim order to preserve a particular right “pending determination of the matter the subject of the complaint” would generally be made for the purpose of ensuring that the Tribunal’s determination is effective, if it were to uphold an applicant’s complaint.
The proposed interim order, requiring the University to permit the applicant to progress to Phase 2, does not preserve any right arising in respect of the second or third complaints.
The second complaint (the subject of the third proceedings) concerned the management of the applicant’s absences from the course due to medical conditions. A relevant right, for the purposes of the third interim application, might be the applicant’s right to have her medical absences managed without unlawful discrimination. That right would not be preserved by an order allowing the applicant to proceed to Phase 2 of the program, because the issues of managing medical absences and allowing academic progression are distinct.
At the hearing, the applicant described her relevant right as being a right to sit the OSCE examination, free from discrimination. That is not a relevant right for the purposes of the third proceedings, because the second complaint did not concern the conditions under which the applicant sat the OSCE examination. Accordingly, the proposed interim order, requiring the University to allow the applicant to progress to Phase 2 of the course, is not an interim order to preserve the rights of the parties to the second complaint.
The third complaint, founding the fourth proceedings, concerns the Dean’s conduct in responding to and refusing the applicant’s request that the Dean reconsider her Phase 2 progression. Assuming in the applicant’s favour that the third discrimination complaint is well founded, the relevant right is that the Dean reconsider the applicant’s request to proceed to Phase 2, without discriminating against the applicant. The applicant’s characterisation of the relevant right as being to sit the OSCE examinations, free from discrimination, is misconceived. That is the right the subject of the first discrimination complaint. The third complaint is not concerned with the University’s conduct of the examinations, but rather with the Dean’s handling of the applicant’s request. An order requiring the respondent to allow the applicant to progress to Phase 2 would not preserve the applicant’s right to have her request considered without discrimination; it would confer a new right upon her.
If I am wrong about the characterisation of the relevant rights, I determined when considering the first application that an order allowing the applicant to progress to the next stage of her course would not be an interim order “to preserve the rights of the parties to the complaint.” It would, instead, create a new right. I stated (HYH v University of Wollongong [2026] NSWCATAD 282 at [29]):
“The applicant has not identified any right which the order would preserve and, to the contrary, has accepted that she has no existing right. If the applicant has any relevant existing right, it could be characterised as a right to have her examinations conducted without unlawful discrimination. She does not, however, have any right to progress to Phase 2 of the Doctor of Medicine program before she has successfully completed Phase 1.”
The applicant also sought other interim orders as part of her applications. Some of those orders were consequent upon the Tribunal making the proposed order allowing her to continue to Phase 2 of the course. However, she also sought what she described as a “narrower alternative,” being an order requiring the respondent to assess her, within 7 days, under the University’s current 10-station Phase 1 OSCE with rest breaks.
That proposed order is not an interim order to preserve the parties’ rights, as identified above, for the third or fourth proceedings. The proposed order does not relate to the third proceedings, because it is not connected with the management of the applicant’s absences. It does not relate to the fourth proceedings, and does not preserve the applicant’s putative right to have the Dean reconsider whether she can continue to Phase 2 without discriminating against her.
Even if the applicant’s right to have examinations conducted free from discrimination was a relevant right in relation to the third or fourth proceedings, it is not preserved by the proposed order. That right subsists irrespective of the order. The proposed order is more in the nature of a final order which might be made if the Tribunal found that the University had indirectly discriminated against the applicant in the conduct of the examinations.
If I am wrong about that, I would not make the order in any event. For the following reasons, I am not persuaded that the balance of convenience favours the making of the order.
I accept the unchallenged evidence of Professor Kecskes, the Dean of Medicine, that the current Phase 1 clinical assessment requirement significantly departs from the 2025 curriculum which the applicant studied, and that that is reflected in the current 10-station OSCE. I accept her evidence that the 10-station OSCE is only assessing two semesters of knowledge and that the current Phase 1 2026 cohort will also be subject to additional assessments in semester 3 (in 2027) to account for the reduced OSCE. Accordingly, an order requiring the respondent to allow the applicant to sit the 10-stage OSCE within 7 days would not provide a pathway for the applicant to undertake Phase 2 with her cohort, because she would still need to complete additional assessments next year to progress to Phase 2.
The applicant sought, in her third application for interim orders, an interim order that “the Respondent not treat properly notified and medically supported disability-related absences as unprofessional conduct, or as a basis for an Unsatisfactory grade, merely because those absences constitute a pattern, without individual assessment and appropriate consideration of disability-related adjustments and alternatives.”
The applicant did not make any submissions in support of that order and I did not understand her to be pressing her application for that order at the hearing.
If that application was in fact pressed, I am not persuaded that the proposed order should be made. The applicant has not established that the University is, in fact, proposing to treat any of her medical absences as unprofessional conduct.
The basis for the applicant’s contention that the University is planning to, or may, treat her medical absences as unprofessional conduct is contained in an email to the applicant from the Head of Students. That email quotes the following material from the University’s subject outline:
“Note: where there is a consistent pattern of absences or unexplained/ unreported absences, students may be deemed to have acted in an unprofessional manner and be awarded the grade of Unsatisfactory for the subject by the Board of Examiners.”
An order requiring the respondent to allow the applicant to progress to Phase 2, or to reassess the applicant, using a practical examination format created for a different version of the course, would not return the parties to the circumstances they were in before the alleged contraventions the subject of the second and third complaints, within s 105(1)(c) of the Anti-Discrimination Act. Those circumstances were, in both cases, that the applicant had failed the OSCE examination and was not permitted to progress to Phase 2.
Nor would an order prohibiting the respondent from treating properly notified and medically supported disability-related absences as unprofessional conduct, return the parties to the circumstances they were in before the alleged contravention the subject of the second complaint. That is because there is no evidence that the respondent has treated any of the applicant’s absences in this way. If I am wrong about that, I would not make the proposed order in my discretion, for reasons given above.
The respondent applied for its costs of the third and fourth proceedings. The parties both provided the Tribunal with some written submissions about costs.
I have provided the parties with an additional opportunity to make submissions about costs, in light of my reasons for decision, as I advised them I would do at the hearing.
In addition to the orders made at the hearing dismissing each application, I have made the following orders in each proceeding:
The respondent’s application for summary dismissal of the applicant’s application for interim orders is dismissed.
To the extent necessary, a hearing of the parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is dispensed with.
The disclosure of the name of the applicant is prohibited.
The publication of Annexures D and E to the statutory declaration of Professor Zsuzsoka Kecskes, made on 10 August 2026, is prohibited.
The parties’ applications for orders under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) are otherwise dismissed.
The respondent is to provide to the applicant and the Tribunal, within 7 days of the date of these orders, any further submissions in support of its application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence in support, including submissions in relation to the possibility of a lump sum costs order.
The applicant is to provide to the respondent and the Tribunal, within 14 days of the date of these orders, any further submissions in response to the respondent’s application for costs, of no more than 5 pages in at least 12-point font using 1.5 spacing, and any evidence on which she wishes to rely in relation to the costs application.
The parties are to address in their submissions whether the Tribunal should dispense with a hearing of the costs application.
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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
HYH
University of Wollongong (No 3)
[2026] NSWCATAD 282
[2026] NSWCATAD 283
(1988) 14 NSWLR 481
(1993) 115 ALR 377
(1950) 81 CLR 446
(2004) 220 CLR 363
(2020) 103 NSWLR 91
(2002) 209 CLR 597