Victorian Civil and Administrative Tribunal|2002-08-28

Liu v The University of Melbourne [2002] VCAT 896 (28 August 2002)

Anti-Discrimination List; Alleged Racial Discrimination; Lack in Substance Summary Dismissed; Section 75 Victorian Civil and Administrative Tribunal Act 1998

MEDIUM NEUTRAL CITATION [2002] VCAT 896

Proceeding dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

For the Respondent: Mr D.B. Moore, Solicitor of Mallesons Stephen Jaques

1. On the 10th of July 2001 the Equal Opportunity Commission accepted a complaint from Dr Liu with respect to various aspects of his relationship with The University of Melbourne. In 1989 Dr Liu, then not the holder of any doctorate was a scholar in computer science. He desired to undertake study and research towards obtaining the degree of Doctor of Philosophy by means of a thesis in computer science. He arranged to enrol at The University of Melbourne for that purpose but was told that he could initially commence only in the Master of Science program. He continued with that program for some time. He was told, according to his account that he would be able to transfer to the PhD program after 12 months. As it happened, his request to do that after 12 months was denied. He made a number of further requests including one after 27 months. All of those were denied.

2. By 1994 his nominated supervisor in the PhD program, Professor Kotagiri, declined to approve his proposals for his thesis and also refused to approve his timeline or program. This led to an exchange of e-mails between the Professor and Dr Liu. The Professor and it seems the University, took the view that a number of the statements in the e-mails were inappropriate. For instance, in one e-mail addressed to the Professor, Dr Liu said "I do not worry about my thesis, I only worry about your safety". Later, Professor Kotagiri alleged that he received letters threatening his life. He or the University or both, made a complaint to the Victoria Police. This led to the issue of a search warrant against Dr Liu; the item to be searched for was a manual typewriter. The police visited Dr Liu on two further occasions, this time without warrant. He was interviewed at a police station. Ultimately no prosecution was ever brought against him. Meanwhile the University of Melbourne suspended Dr Liu's participation in the PhD program. It is unnecessary for me to trace every step of the fairly complex web of events

3. Dr Liu was required to attend on many occasions upon the student counsellor and twice upon a psychiatrist nominated by the University. The psychiatrist on both occasions following the interview concluded that Dr Liu was suffering from no psychiatric illness. Nevertheless the upshot was that the University concluded, at least according to its public statements, that Dr Liu's relationship with his supervisor, Professor Kotagiri, had broken down irrevocably. At a hearing concluded on the 22nd of November 1994, the Head of the Department, Professor Thorne, suggested that Dr Liu consider studying for his PhD in his native language of Mandarin Chinese. He is a native of Taiwan. Matters continued from there and there were a number of proposals including one in 1996 which entailed The University of Melbourne facilitating Dr Liu in undertaking a PhD program at another institution or perhaps at The University of Melbourne subject to external supervision. The University declined to do what Dr Liu desired, namely to nominate a new internal supervisor for him. Dr Liu regarded this and continues to regard it as an infringement of the principle of academic freedom.

4. Dr Liu continued to seek redress from a variety of sources including the Ombudsman of the State of Victoria, the Human Rights and Equal Opportunity Commissioner, the Post Graduate Union. He continued over the years in correspondence with the University of Melbourne. Finally, he wrote to the Commonwealth Minister for Education, Dr Kemp. Dr Kemp felt unable to intervene in any way. He suggested however that Dr Liu make contact with the Victorian Equal Opportunity Commission. Dr Liu says he made the first contact with the Commission in December 2000 having received the suggestion just described from Dr Kemp in November 2000.

5. Following some interviews the Commission accepted the complaint already described in July 2001. Meanwhile, Dr Liu had obtained a doctorate from another institution. However, as part of the conciliation process a further proposal was put by The University of Melbourne upon the assumption that Dr Liu had yet to obtain his doctorate. This proposal was not acceptable and as a result the University submitted to the Commission that it should decline to entertain the complaint on the basis that it was frivolous and vexatious, or lacking in substance and also related to events which took place more than 12 months before the matter was first broached with the Commission.

6. By letter dated 27 December 2001, the Commission referred Dr Liu's complaint to this Tribunal. The referral stated that in a letter dated the 18th of September 2001, the Commission advised Dr Liu that in accordance with Section 108(1)(a) and (c) of the Equal Opportunity Act the Commission had determined not to entertain those complaints. As a result Dr Liu requested that this matter be referred to the Tribunal.

7. The matter came on for directions before Deputy President Mrs Coghlan. She directed that particulars of Dr Liu's complaint be filed and a further statement of the complaint was filed in response to her order. This complaint was directed not only to The University of Melbourne but also to Professor Alan Gilbert, the University's Vice-Chancellor; to Professor Kotagiri, the supervisor; Professor Peter Thorne, Head of Department and Dr R.I. Marshmam.

8. Mr Moore who appears for The University of Melbourne submits that since this Tribunal can only entertain the complaints that are referred to it in the anti-discrimination jurisdiction, and the only complaint that has been referred to the Tribunal is a complaint against The University of Melbourne, the purported joinder of these other persons is without effect. I am inclined to accept that contention; however in the event it is unnecessary for me to express any final view with respect to it.

9. The particulars of complaint in the original formulation of the complaint are relatively lengthy and it is unnecessary for me to go to them in detail. I do however incorporate them by reference for the purposes of my determination. Dr Liu says that the entire unfavourable train of events to which he has been subjected by The University of Melbourne constitutes racial discrimination based upon his race as a native of Taiwan. He says that a white Australian would not have been subjected to the treatment to which he was subjected. He is particularly indignant about the making of allegations of criminal behaviour in the form of threats to kill to Victoria Police. He says he was insulted and demeaned by the requirement that he attend for examination and assessment by a psychiatrist nominated by The University of Melbourne. The racial motivation for all this he says is indicated by the suggestion he claims Professor Thorne made at the hearing on the 22nd of November 1994 that he should return to Taiwan and pursue his doctorate there.

10. This application is brought by The University of Melbourne as respondent. It seeks a dismissal of the proceedings summarily pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998. That section authorises the Tribunal to dismiss or strike out a complaint summarily if satisfied that it is frivolous, vexatious, lacking in substance or otherwise an abuse of process. Applications under Section 75 are quite common across the Tribunal and very common in this List, therefore the principles which must guide me in determining this application, at least in a general sense have been very clearly stated.

11. The starting point is the decision of the Court of Appeal in State Electricity Commission of Victoria and Rabel [1998] 1 VR 102 where the Court of Appeal considered the appropriate way of approaching the provision corresponding to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 in the Equal Opportunity Act 1995 when that statute established and maintained a separate Anti-Discrimination Tribunal. Their Honours said that no summary dismissal or strike out should be made except in the clearest case and no strike out or dismissal should be made where there was any hope that the complaint might be successful. Rabel's case was considered and expatiated upon in the context of the present legislation by Deputy President Ms McKenzie in the matter Norman and the Australian Red Cross Society (1998) 14 VAR 243. At pages 247 and 248 the Learned Deputy President said:

"The Tribunal should exercise caution before summarily terminating a decision. It should only do so if a proceeding is obviously hopeless, obviously unsustainable in fact or law or on no reasonable view can justify relief or is bound to fail. This will include but is not limited to a case where a complaint can be said to disclose no reasonable cause of action or where a respondent can show a good defence sufficient to warrant the summary termination of the proceeding."

12. Mr Moore on behalf of the University concedes that for the purposes of an application such as this I must assume that all the allegations made by Dr Liu are correct. In the forefront of Mr Moore's submission was the contention that there has been inordinate and unexplained delay in bringing this matter into the Anti-Discrimination List. It will be recalled that the crucial events with respect to Dr Liu's complaint all took place in 1994 or previous. Many events have taken place since but they in substance amount to, as Dr Liu would see it, refusals by The University of Melbourne to take the action which it should to redress the injustice that it did in 1994.

13. Mr Moore referred me to a decision of Deputy President McKenzie in the matter of Chalmers v Deakin University [1999] VCAT AD 10 where the learned Deputy President affected a summary dismissal or strike out based solely upon an inordinate and unexplained delay by the complainant in bringing his matter before the Equal Opportunity Commission. Perhaps surprisingly there is nothing equivalent to a statute of limitations with regard to complaints of discrimination under the Equal Opportunity Act. However, Section 108(3)(c) which is one of the provisions which the Equal Opportunity Commission relied upon in declining to entertain the present complaint, states that the Commission can decline to entertain a complaint solely for the reason that the event to which it relates took place more than one year previously. It might also be thought that to be a paradox that the complaint is being made under the Equal Opportunity Act 1995 with respect to events which happened before the enactment of that statute, however, Section 218(2) of the Act, a transitional provision, countenances that this may be so.

14. In addition Mr Moore submits that the proceeding is misconceived, vexatious and frivolous and lacking in substance. He referred me to a decision of the Human Rights and Equal Opportunity Commission constituted by its then President Sir Ronald Wilson in the matter of Z v A Respondent [1996] HREOCA 6. There it was alleged that a conversation in 1987 amounted to discrimination. The Learned President of the Commission dismissed that part of the complaint as lacking in substance. At page 5 of the computer print he referred to his analysis in the matter of Assal v Department of Health, Housing and Community Services with respect to the phrase "lacking in substance" to be found in Section 25X of the Racial Discrimination Act 1975 of the Commonwealth. He said:

"It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some cases to relate the criterion of `lack of substance' to the complainant's prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent. Even this brief discussion serves to confirm me in the belief that it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case."

15. Dr Liu for his part submits that he has made some complaints in the intervening period of years alleging discrimination before the present complaint is accepted by the Commission in July 2001. He refers to a letter written to the Human Rights and Equal Opportunity Commission which alleges discrimination but seems to have gone no further for some jurisdictional reason and also an allegation of discrimination made in a letter to the present Vice-Chancellor of the University Professor Alan Gilbert.

16. What then is the correct approach to adopt in the present circumstances? In my view, despite what Deputy President McKenzie said in the case of Chalmers v Deakin University I am far from clear that mere delay in itself can constitute abuse of process. In my view, the appropriate course upon an application for summary dismissal where delay is entailed is to consider the delay which has occurred as part of the totality of the case. In my view an appropriate approach to the present application is to consider whether, according to the test postulated by Sir Ronald Wilson which I have already quoted, it can be said in all the circumstances that this complaint is lacking in substance. What I have said already indicates quite clearly that Dr Liu has been the subject of substantial adverse treatment, unfavourable treatment, call it what you will. He says that this has been as a result of racial discrimination and also the false imputation of a psychiatric disorder.

17. Section 8 of the Equal Opportunity Act 1995 defines "direct discrimination" as follows:

"Direct discrimination occurs if the person treats or proposes to treat someone with an attribute less favourably than the person treats or would treat someone without that attribute or with a different attribute in the same or similar circumstances."

18. Section 6 of the Act sets out the various things that are to be regarded as attributes. I will not quote them all but I will quote a few to give the general flavour and scope. They include:

(m) personal association (whether as a relative or otherwise) of the person who is identified by reference to any of the above attributes."

19. No. (i) is "race". Most people will have all of these attributes. All people will have some of them. All people have an attribute of sex. All people have an attribute of race. All people have an attribute of marital status. The Equal Opportunity Act does not mean that any person who suffers adverse treatment, perhaps treatment which is in breach of the rule of natural justice, tortious, criminal, or otherwise wrongful has suffered discrimination merely because that person has a particular attribute. All of us have some of those attributes. Here it is clear that Dr Liu has been the subject of adverse treatment. The question is, is there substance to the contention (and by that I mean, in terms of Sir Ronald Wilson's formulation, material sufficient to call for an answer) that that adverse treatment derives from a particular attribute, namely his race or the imputive disability. The only evidence as it seems to me to indicate a particular motivation along those lines as distinct from perhaps a generally tyrannical attitude by the University, a completely justified attitude by the University, or some other misguided, negligent, incompetent attitude by the University, is the suggestion by Professor Thorne that as at the 22nd of November 1994, Dr Liu should consider pursuing his PhD in Mandarin Chinese in his native Taiwan.

20. As Sir Ronald Wilson said with respect to the allegedly offensive racial statement which he was considering in Z's case:

"The passage of such a long period of time since the alleged act took place until the time of the making of the complaint - over seven years - means that it is going to be difficult to arrive at a firm conclusion as to whether that single comment was made and its consideration is likely to create some prejudice for the respondent."

21. Moreover when one considers the totality of the matters of which Dr Liu complains, is it really sufficient in itself, does it have sufficient substance to prove to any reasonable Tribunal that Dr Liu was the victim of racial discrimination? In my view, it does not. I must accept for the purposes of this application that Dr Liu has been a victim of unjust allegations of criminal activity, that his academic freedom has been infringed; but where is the evidence that this was as a result of race? In my view, nothing that I have heard is of sufficient substance to make out that key and vital element. Obviously people who discriminate on the basis of race or sex or the other attributes which the Equal Opportunity Act 1995 prohibits as basis of discrimination do not always facilitate complainants by making frank declarations of their motivations. Nothing that I say today should lead one to conclude that in the absence of a frank declaration of a prohibited discriminatory intent no effective complaint can be made.

22. But here the only distinctly racial element, even ambiguously so, is a single statement so many years ago that is lacking in substance. Moreover I think this matter must be seen in its totality, namely that Dr Liu has continued to agitate his grievances for many years and apart from the two relatively isolated matters to which I have made reference already, there has been little or nothing in his correspondence about racial discrimination. Certainly there have been plentiful allegations of breach of natural justice, generally unreasonable, to radical conduct, conduct contrary to the ideals of academic freedom but these are different matters.

23. In my view therefore, the University of Melbourne has made out its case for a summary dismissal of this complaint on the basis that it is lacking in substance. I propose making an order to that effect.

Civil and Administrative Tribunal Act 1998

Opportunity Act 1995

Discrimination Act 1975

Liu v The University of Melbourne [2002] VCAT 896

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Judgment (33 paragraphs)

Liu v The University of Melbourne [2002] VCAT 896 (28 August 2002)

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Legislation Cited (3)