Kaempfe v University of New South Wales

Texts Cited: none

Category: Principal judgment

Parties: Gonzalo Kaempfe (Applicant)
University of New South Wales (Respondent)

Representation: Self-Represented (Applicant)
Lander & Rogers (Respondent)

File Number(s): 2025/00340145

Publication restriction: none

REASONS FOR DECISION

Background

1. Gonzalo Kaempfe (the Applicant) is a student at the University of New South Wales (the Respondent), enrolled in the Juris Doctor program. He has 2 rheumatological conditions which impact his physical abilities. On 12 June 2025 the Applicant lodged a complaint with Anti-Discrimination NSW (the ADB) alleging disability discrimination in education, homosexuality discrimination in education, and victimisation, identified by the ADB as relevant to ss 49B, 49L, 49ZG, 49O and 50 of the Anti-Discrimination Act 1977 (the Act). Specifically:

2. Between 10 February 2025 and 14 March 2025 he was unable to use the lift in the Respondent’s Law & Justice building prior to 9am, and he was enrolled in a class on level 1 of that building which commenced at 9am. This is alleged to constitute indirect disability discrimination under s 49B(1)(b) on the basis that it imposes a condition or requirement on him to use the stairs to get to his classroom on time, and which limits or denies him access to a benefit pursuant to s 49L(2)(a) of the Act.

3. The Law faculty does not provide recordings of his classes. This is alleged to constitute indirect disability discrimination, as it disadvantages students with a disability unless the requirement is contained in their ELP.

4. On 2 May 2025 he was not provided with a standing desk during an exam, despite this being accepted as a reasonable adjustment by the Respondent in his Equitable Learning Plan (ELP). The Applicant alleges that the Respondent ‘violated’ his ELP on 7 occasions, which contravenes s 49L(2) of the Act by causing him detriment in education.

5. The Dean of the Law School victimised him, contravening s 50 of the Act, by “attempting to use his power position to silence” the Applicant, in correspondence dated 23 May 2025.

6. The period of the complaint was characterised as 10 February 2025 to 12 June 2025 for the disability and homosexual discrimination, and Victimisation from 23 May 2025 to 12 June 2025.

7. On 2 September 2025 the ADB finished investigating the Applicant’s complaints and declined the Applicant’s complaints pursuant to s 92(1)(a)(i) of the Act on the basis that they were lacking in substance, for the following reasons:

The Complainant has provided insufficient information to support unlawful discrimination by the University because of his disability, either direct or indirect.

Whilst it is unfortunate that the complainant was not able to access his classroom on level 1 prior to 9:00 AM whilst the escalator was temporarily non-operational, the university addressed the issue when it was brought to their attention by the complainant, and in any case the elevator was active at 9:00 AM in order for the complainant to get to class commencing at 9:05 AM.

Whilst recordings of classes may assist all students studying law including students with disabilities, there was no requirement on the university to provide recordings to the complainant as it was not part of his ELP.

The university complied with its obligations to provide the complainant with a Stand-up desk for his exam on 2 May 2025 in the room the exam was scheduled to be conducted in. However, due to an unforeseen technical failure resulting in a last-minute room change the desk was not able to be relocated. Whilst this is unfortunate, the complainant was offered two supplementary exam dates, to remedy any effect this had on his exam results.

The complainant’s assertion that all students were impacted by the University’s alleged failure to follow correct procedure regarding a marking review does not demonstrate any unlawful discrimination by the university on the grounds of the complainant’s disability or homosexuality.

Other than a mere allegation the complainant has provided no information to support any discrimination by the respondent because of his homosexuality.

The complainant has provided insufficient information to support unlawful victimisation. Whilst he raised the threat of legal action arising from breaches of the Disability Discrimination Act in his correspondence to the Dean, there is no inference that can be drawn from the Dean’s correspondence dated 23 May 2025 that he would be expelled. Rather the correspondence instructed the complainant to be respectful in his correspondence with UNSW staff members in response to emails sent by the complainant to staff members where he made reference to ‘planned attacks to the university’.

4. At the Applicant’s request, the President of the ADB referred the complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.

5. The Applicant’s leave application proceeded to hearing on 29 October 2025. In addition to the President’s Summary of Complaint, the Tribunal received from the Applicant written submissions attaching 13 PDF documents and written submissions in response to the Respondent’s written submissions. The Respondent provided the Tribunal with an affidavit from the Dean of the Law and Justice Faculty, Professor Andrew Lynch, dated 7 October 2025, and written submissions. Both parties made oral submissions at hearing.

6. At hearing, the Applicant withdrew his complaint of homosexual discrimination in education.

7. For the reasons that follow, I have decided to grant leave to parts of the Applicant’s complaint against the Respondent of indirect disability discrimination in education, and refuse leave for the remainder of his complaints.

Legal Principles

8. 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.

9. 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].

10. 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.

11. 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.

12. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (“Ekermawi”). 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].

13. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

14. The Applicant bears the onus of proof. 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: see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Discrimination on the ground of disability

15. Section 4 of the Act defines disability to mean:

(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person’s body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

16. In addition, s 49A of the Act defines disability to include past, future and presumed disability:

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability—

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

17. Section 49B of the Act explains what constitutes discrimination on the ground of disability:

1. A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator—

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

18. Section 49L makes disability discrimination in the context of education unlawful where there is a denial or limitation of access to benefits provided by the educational authority, or any other detriment caused:

49L Education

…

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability--

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

…

(4) Nothing in subsection (1) (a) or (2) (b) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires services or facilities that are not required by students who do not have a disability and the provision of which would impose unjustifiable hardship on the educational authority.

(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person’s disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the educational authority.

19. What amounts to discrimination for the purposes of s 49L is to be derived in the first instance from the relevant definition provided by s 49B: Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters) at 392 per Dawson and Toohey JJ. That is because s 49L makes unlawful (in the circumstances set out in that section) acts amounting to discrimination within the meaning of s 49B: Waters at 392. In other words, a finding of discriminatory conduct under s 49B is not unlawful unless that conduct also contravenes section 49L.

20. If there is no direct evidence of causation on the ground of disability, a causal link between the Applicant’s disability and the alleged treatment would have to be established 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: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.

21. For the Applicant to succeed in his indirect discrimination in education complaint pursuant to s 49B and 49L of the Act, he must first demonstrate:

22. That he suffers a disability;

23. That he was required to comply with a requirement or condition by the Respondent;

24. A substantially higher proportion of persons, without his disabilities, comply or can comply with that requirement or condition;

25. The requirement was not reasonable having regard to the circumstances of the case; and

26. He did not or was not able to comply with that requirement or condition because of his disabilities.

27. It is only once disability discrimination has been established, either on a direct or indirect basis, that it can be considered unlawful within the terms of s 49L of the Act. Subsection 49L(1) is not relevant to the Applicant because it addresses admission as a student, and the Applicant is or was already a student of the Respondent; and s 49L(2)(b) is not relevant because the Applicant has not been expelled. To prove unlawful disability discrimination in education, the Applicant must therefore demonstrate, pursuant to s 49L(2) that:

28. An educational authority (ie, the Respondent) denied or limited him access to a benefit provided by the educational authority (s 49L(2)(a)); or subjected him to “any other detriment” (s 49L(2)(c)); and

29. The Respondent’s conduct (in denying or limiting him access to a benefit, or expelling him, or subjecting him to a detriment) was “on the ground of” his disability (causation).

30. The Applicant would therefore need to also establish that the condition or requirement imposed on him:

31. Denied or limited his access to a benefit, or subjected him to a detriment;

(a) Including, what was that benefit or detriment;

2. That he was denied or limited in his access to that benefit, or subjected to the detriment, because of his disabilities. This is commonly referred to as “causation”.

Victimisation

24. Section 50 of the Act makes victimisation of a complainant unlawful:

50 VICTIMISATION

(1) It is unlawful for a person (“the discriminator” ) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has--

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

25. In summary, to prove victimisation the Applicant would have to prove that:

26. He did one or more of the things listed in s 50(1)(a)-(d): (the trigger);

27. The Respondent’s conduct subjected him to a detriment; and

28. One of the “real, genuine or true reasons” for the Respondent’s conduct was because the Applicant did one of the things listed in (a)-(d) (“causation”): Caroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24]; Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8], [37].

29. Whether something constitutes a detriment requires an objective not a subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 (Sivananthan) at [41]. The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial”: Sivananthan at [40]; and “all that is required... is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter”: Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34].

30. The words “on the ground that” require a direct causal link between the relevant act of victimisation – namely subjecting a person to a detriment – and the reason for that act: Tropoulos v Journey Lawyers [2019] FCA 436; (2019) 287 IR 363 at 475 [323].

Consideration

28. As discussed above, for the purposes of determining whether leave ought to be granted, the Tribunal accepts the Applicant’s evidence and takes it at its highest. Accordingly, the Respondent did not dispute the factual matters relied on by the Applicant in relation to his complaints of disability discrimination in education. Rather, the Respondent contended that the factual matters did not substantiate a complaint that the Applicant was being unlawfully denied access to a benefit or being subjected to a detriment in the context of education; and / or that any impact of the Respondent’s conduct on the Applicant had been appropriately addressed already.

Can the applicant substantiate his complaint(s)?

29. The first question for the Tribunal is whether the Applicant could substantiate his complaints. Addressing each in turn, the relevant factual matters (which are accepted) are:

30. That between 26 February 2025 and 14 March 2025 the elevator function in the Law & Justice Faculty building did not turn on until 9am (the elevator issue);

31. That the Law Faculty does not provide recordings of classes (whether identified as lectures or seminars) unless this is required in a student’s ELP (the class recordings issue);

32. That the Applicant was not provided with a Stand-Up desk for his exam on 2 May 2025, despite this being a required adjustment in his ELP, and that the Applicant’s ELP was additionally contravened on several other occasions (the ELP contraventions issue);

33. That the Applicant complained about the disability discrimination he alleged he was experiencing, and the Dean of the Law Faculty then responded with the letter dated 23 May 2025 (the victimisation complaint).

The elevator issue

30. The elevator issue is alleged by the Applicant to constitute indirect disability discrimination, by requiring him to comply with the condition or requirement of using the stairs to get to his class on Level 1 prior to the start time of 9am. The respondent’s evidence was:

3 Based on email records held by UNSW, I am aware that, on 26 February 2025, Mr Kaempfe submitted a complaint regarding the elevator function within the Law Building. I understand that he complained that the elevators would not run from the Ground Floor to Level 1 prior to 9am. I understand that this issue was resolved on 14 March 2025. I similarly understand that the earliest starting time of law classes is 9:05 am, so I do believe that students using the elevators from 9:00 am to get to Level 1 would have been able to access classes on time, even prior to the issue’s resolution. However, I do agree with Mr Kaempfe that the elevators should not have denied access to one level prior to 9:00 am. I communicated my apologies to Mr Kaempfe via email on 9 May 2025. From my perspective, I consider this matter was resolved from a practical perspective when the elevator settings were corrected.

31. I agree that the elevator issue meant that the Applicant had to either use the stairs (in circumstances where his disability meant that this would take a significant period of time and cause pain, if he were able to use the stairs at all), or arrive to class after the start time of 9.00am. I accept that this practically imposed a condition or requirement on the Applicant to arrive to class after 9.00am, in circumstances where the majority of persons, not having his disability, would be able to use the stairs and arrive prior to 9.00am. Although the Respondent contends that the ‘earliest starting time of law classes is 9.05am’, I do not consider that this entirely mitigates the condition or requirement imposed on the Applicant so as to make it reasonable in the circumstances. Arriving after 9.00am would objectively impact the Applicant’s ability to find a preferred seat, arrange his belongings, any notes or laptop, and otherwise prepare himself, even if the class only started at 9.05am.

32. I agree therefore that there is indirect disability discrimination. I also agree that this could either limit or deny the Applicant access to a benefit otherwise provided by the educational authority, or subject him to a detriment, within the meaning of s 49L(2) of the Act. It follows that the Applicant could substantiate his complaint, if the Tribunal were to ultimately accept his evidence.

The class recordings issue

33. The class recordings issue is alleged by the Applicant to constitute indirect disability discrimination because it imposes a condition or requirement on the Applicant to go to lectures in-person, even when he isn’t feeling well because of his disability. The Applicant acknowledged that this condition or requirement was imposed on all law students, and that he did not have an adjustment in his ELP to obtain class recordings because his “disabilities were not great enough”.

34. The Respondent’s evidence was that:

“The Faculty [of Law and Justice] has made reasonable adjustments, including recording for individuals when this is recommended as a condition of their ELP [Equitable Learning Plan] by the ELS [Equitable Learning Service]. Other adjustments are regularly made to support students who are unable to attend classes on an ad hoc basis, such as due to a medical incident on a particular day”.

35. In order to constitute indirect disability discrimination, the condition or requirement must be something with which the majority of persons not having the Applicant’s disabilities could comply, and which is not reasonable in all the circumstances. The evidence demonstrates that this condition or requirement impacted all law students, except those students whose disabilities warrant the particular adjustment in their ELP (which did not include the Applicant). The Applicant was not therefore disadvantaged because of his disability in being required to comply with the requirement to attend lectures in person.

36. There is also no evidence on which the Tribunal could infer a causal relationship between the Respondent’s decision to require attendance at lectures, and the Applicant’s disability.

37. The reasonableness of the requirement or condition is counterbalanced by the Respondent’s flexibility in allowing students to obtain recordings where their ELP requires this adjustment. On the Applicant’s evidence before the Tribunal, the condition or requirement is therefore reasonable in all the circumstances.

38. It is therefore unlikely that the Applicant could substantiate unlawful indirect disability discrimination in relation to the class recordings issue.

The ELP contraventions issue

39. The ELP contraventions issue is alleged by the Applicant to involve the failure of the Respondent on several different occasions to provide the adjustments outlined in the Applicant’s ELP. Five of those occasions were outlined in the Applicant’s complaint. Based on the Applicant’s evidence to the Tribunal, it appears that those occasions involved:

40. On 2 May 2025 the Applicant was scheduled to complete an examination and there were interruptions to wifi in the examination room. As a result, the exam had to be relocated and the Applicant was not provided with a height adjustable (stand-up) desk for the exam, when this was an adjustment in his ELP. The Applicant also felt like he was not provided with sufficient additional time to complete the exam equitably, and was not fairly able to retake the exam when this was offered to him;

41. On 11 June 2025 the Applicant was not provided with class presentation slides, before the class, when this was an adjustment in his ELP;

42. On 17 July 2025 the Applicant was not provided access in advance to online modules, when this was an adjustment in his ELP;

43. On 28 July 2025 the Applicant was not provided with class presentation slides before the class, when this was an adjustment in his ELP;

44. On 13 August 2025 the Applicant was required to provide a medical certificate to obtain special consideration to delay an exam, even though this was included in his ELP as an adjustment.

45. In written submissions to the Tribunal, the Applicant anticipated adding a further two occasions in which he alleged his ELP was contravened by the Respondent, stating:

In addition to the 5 instances where my ELP was violated, which amounts to disability discrimination as it violates s 49L(2) of the Anti-Discrimination Act 1977 (NSW) (as per my initial submission), there were 2 instances where I was forced to undertake group assignments in T2 2025. In doing so, UNSW put me in a position that made it impossible to use some of the reasonable adjustments in my ELP, which include time extensions for all assignments. In addition to this detriment, this also caused me detriment as those group assignments were complex, and I had to spend countless hours in group coordination activities that I wouldn’t have needed if I had been given the option to do an individual assignment instead. This increased my stress levels unnecessarily and therefore affected my health.

Unlike T2 2025, in this term I was give the option not to do a group assignment, so I can have the ability to use the time extensions included in my ELP.

If I’m granted leave for my case to be heard at the NCAT, I’ll be raising a motion to amend this claim to include these 2 additional violations which amount to disability discrimination.

41. As anticipated by the Applicant’s submissions, the Tribunal will not consider the additional two occasions of alleged contraventions of his ELP until (and if) leave is granted for the Applicant’s complaint to proceed, and the Applicant is successful in amending his complaint pursuant to s 103 of the Act.

42. The Applicant submitted that the Respondent’s contraventions of his ELP was a denial or limitation of his access to benefits, being the adjustments necessary to equitably participate in his education; and also (or alternatively) subjecting him to detriments.

43. The Respondent submitted that in relation to the failure to provide the Applicant with a height adjustable desk on 2 May 2025 and the difficulties the Applicant thereby experienced in completing his exam, there had been acknowledgement of the University’s shortcomings to the Applicant and an apology provided, offers of make-up exams to the Applicant, and the Respondent had taken appropriate steps to remedy or redress the conduct.

44. In relation to the other alleged contraventions or violations of the Applicant’s ELP, the Respondent submitted that there was no actual direct or indirect discrimination as a result of its conduct, because the conduct did not disproportionately affect the Applicant in comparison to other students with such requirements in their ELP, and was not causally connected to the Applicant’s disability. In any event, the Respondent submitted that there taken appropriate steps to remedy or redress the issues raised by the Applicant.

45. The Applicant submitted that any failures by the Respondent to comply with the terms of the ELP they provided for the Applicant to equitably access his education, practically required him access his education without reasonable adjustments. This, in turn, imposed conditions or requirements on him – eg, to sit for an exam without a height adjustable desk, or to participate in class without having viewed the presentation slides prior to the class - which he is unable to comply with, because of his disability or its characteristics. His inability to comply with those conditions or requirements is evidenced by the terms of the ELP, agreed to by the Respondent. The majority of persons without the Applicant’s disability (and therefore not in need of an ELP in similar terms) would be apply to comply with those conditions and requirements. That the conditions and requirements were not reasonable in all the circumstances is evident from the existence of the ELP, as agreed to by the Respondent.

46. On the Applicant’s evidence, taken at its highest, it is arguable therefore that the Respondent’s conduct subjected the Applicant to indirect disability discrimination in circumstances where it failed to comply with the terms of the ELP provided for him.

47. The Applicant’s evidence, taken at its highest for the purpose of determining leave, demonstrates that the University’s failure to comply with the terms of his ELP subjected him to “any other detriment” within the meaning of s 49L(2)(c) of the Act. It is arguable that compliance with the terms of an ELP could also be considered a “benefit” offered by the educational authority within the meaning of s 49L(2)(a), and the denial or limitation of that benefit would be thereby unlawful. There are factual disputes as well as legal issues which remain to be resolved.

48. In the circumstances, the Applicant’s complaint of unlawful indirect disability discrimination in the context of education, with respect to the Respondent’s failures to comply with his ELP, is not lacking in substance and could be substantiated.

The victimisation complaint

49. The Applicant’s complaint of victimisation concerns correspondence between the Applicant and the Respondent following the issues he experienced during the exam on 2 May 2025. On 7 May 2025 the Applicant wrote to the President and Vice Chancellor of the Respondent and a number of other employees, and complained of “systemic irregularities” which negatively impacted “persons protected by the Disability Discrimination Act 1992 (Cth) including myself”. Although the Commonwealth legislation is referenced by the Applicant, this falls within s 50(1)(c) of the Act, constituting a “trigger” for a complaint of victimisation.

50. The response received by the Applicant on 23 May 2025 from Professor Lynch was submitted by the Applicant to constitute a detriment, on the basis that he believed that he was being threatened with expulsion and that this was “an attempt to silence me”. The threat was submitted to have been implied by reference in the letter to the Applicant being subjected to a Code of Conduct process. The Applicant submitted that the letter was sent to him because he had made a complaint, and therefore there was a causal link between the trigger and the detriment.

51. Professor Lynch’s affidavit stated:

The purpose of my email was to remind Mr Kaempfe of the standards required of all members of the University community under the UNSW Code of Conduct and Values (Code) and to request that he change the way he communicated with Faculty staff in the future. In doing so, I was responding directly to the correspondence he had sent Associate Professor Sentas, which was attached, and other correspondence I had been provided by colleagues.

As Dean, it is my job to remind students to treat each other and staff members in a manner that is consistent with the Code. At times, I consider that Mr Kaempfe’s emails to staff were not consistent with the Code. I do not believe my request that Mr Kaempfe communicate in a manner consistent with the Code had the effect of subjecting him to any detriment.

52. The Respondent submitted that “expression of an expectation that the Applicant communicate in a civil manner does not involve the Applicant being subjected to a detriment”.

53. The evidence provided by the Applicant to the Tribunal demonstrates that the Applicant, at that time, was emailing Dr Vicky Sentas regarding the delayed feedback provided for exam results, which the Applicant wished to have reviewed. In an email timestamped hours prior to Professor Lynch’s letters, the Applicant wrote:

Hi Vicky

I hope you are well.

I noticed that the Vice-Chancellor decided to support you on this. However, there’s no guarantee that this will happen next time.

Now, with this and other previous situations, I have enough grounds to challenge UNSW’s accreditation with the NSW LPAB.

However, I’ve decided not to progress with this course of actions nor with my appeal to my mark in this exam.

I’ll let you all be happy in this losing game that you’ve created for the students in this course, in this instance.

I have better things to do with my time than dealing with people like you.

See you all next time at the law school.

54. Professor Lynch’s letter to the Applicant, a few hours later, refers specifically to the Applicant’s communication with Dr Sentas as the cause for concern in relation to “problematic” communications.

Dear Gonzalo

The issues with the sitting of the JURD7121 examination are deeply regretted by the Faculty, and you subsequently received a personal apology and detailed response from the DVC Education & Student Experience to your justifiable complaint about that incident and its impact. The faculty and university teams have been working to respond effectively to that issue and we are grateful to all students for their forbearance and understanding.

Dr Sentas has communicated with the whole class and now also to you individually about the delayed provision of the feedback and how this constitutes no disadvantage to any who might wish to request a review of result. She has been perfectly clear and professional in her communication - as I would expect.

I am writing to put you on notice that I find your communications with members of the university to be problematic under the standards required by the Code of Conduct and Values and to request that you please change the way you communicate in future.

Specifically, I will not tolerate any student employing disrespectful language to members of the faculty. I have highlighted the two sentences is in your correspondence below that I view as particularly unacceptable in this regard.

Further, in this and other correspondence, you repeatedly threatened to seek the removal of the accreditation of the Faculty’s Juris Doctor program or to bring legal action against the Faculty/University. References in your messages to “planned attacks to the university” suggest an approach on your part that I would suggest is not just unnecessary, but also not especially conducive to ensuring any legitimate issues or concerns you may hold are able to be properly and swiftly addressed.

I look forward to your cooperation with my request for respectful and constructive communication with the Faculty going forward.

Thank you

55. As submitted by the Respondent, a request that future communications be “respectful and constructive” is not a detriment. Nor is identifying to the Applicant where communications may contravene the Code of Conduct and Values. Taking into account the principles expressed above at [26], I agree with the Respondent’s submission that this letter from Professor Lynch does not, on any view, constitute a “detriment” to the Applicant.

56. I agree therefore that the Applicant’s complaint of victimisation is therefore lacking in substance.

Would it be fair and just for the Applicant’s complaint to proceed?

57. On the Applicant’s evidence before the Tribunal, taken at its highest for the purpose of determining whether leave ought to be granted, it appears that his complaints of indirect disability discrimination in education in relation to the elevator issue, and the ELP contraventions issue expressed at [39], could be substantiated.

58. The Respondent submitted in relation to each of those issues that it had apologised or offered apologies, and had otherwise taken appropriate steps to remedy or redress the conduct complained of, within the meaning of s 92(1)(vi) of the Act. However, the Applicant’s evidence was that the Respondent’s remedies and redress were not sufficient and that the Respondent’s conduct had significantly impacted him in relation to his ability to undertake his studies, and in relation to his health and worsening symptoms of his disability.

59. The question of whether or not the Respondent’s actions sufficiently remedied or redressed the discriminatory conduct is a matter of evidence which should be resolved through a hearing. A similar conclusion was reached by the Tribunal in Alghofaili v SAE Institute Pty Ltd [2020] NSWCATAD 215 at [53], and Wolf Matthews v Secretary, Department of Education [2022] NSWCATAD 173 at [29].

60. In deciding whether it is “fair and just” to grant or to refuse leave, I take into account that the Tribunal’s discretion must be exercised having regard to the purpose of the legislative scheme established by the Act. I am also guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme.

61. In all the circumstances, I consider it would be fair and just to grant leave for those specific parts of the Applicant’s complaints of indirect disability discrimination in education to proceed, concerning the elevator issue, and the ELP contraventions issue.

62. It would not be fair and just for those parts of the Applicant’s complaints, which I have found were lacking in substance, to be granted leave to proceed.

63. Leave is therefore granted for the Applicant’s complaint of indirect disability discrimination in education, in relation to the elevator issue and the ELP contraventions issue. Leave is refused for the remainder of the Applicant’s complaint of indirect disability discrimination in education, and refused for the Applicant’s complaint of victimisation.

Order

1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Applicant’s complaints against the Respondent to proceed in relation to the following:

(a) Indirect disability discrimination in education (s 49B(1)(b), s 49L(2)(a) and/or (c)) with respect to:

(i) Between 26 February 2025 and 14 March 2025 when the elevator function in the Respondent’s Law & Justice Faculty building did not turn on until 9am; and (ii) Alleged contraventions by the Respondent of the Applicant’s ELP on the following dates: 2 May 2025, 11 June 2025, 17 July 2025, 28 July 2025, and 13 August 2025.

2. Leave is otherwise declined for the remainder of the Applicant’s complaints against the Respondent.

**********

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