Mishra v University of Technology, Sydney

Supreme Court of NSW|2000-02-25|Before: Kirby J, Ms J

Background 1 On 29 March 1991, Mr Mishra enrolled as a candidate for the degree of Master of Engineering (Electrical) at the University of Technology ("the University")(the defendant). On 6 April 1995, Mr Mishra was awarded that degree. 2 On 25 September 1995, Mr Mishra made a complaint against the University to the Anti Discrimination Board. He alleged that he suffered racial discrimination whilst enrolled as a student. Mr Mishra is Indian. 3 A complaint to the Anti Discrimination Board is required to be made within six months. Mr Mishra was well outside that time. The Board, however, has a discretion to extend time. It did so in Mr Mishra's case. It thereafter investigated his complaint. 4 On 20 October 1997, the Anti Discrimination Board determined, however, that there had been no discrimination based upon race. It dismissed Mr Mishra's complaint. Mr Mishra appealed to the Equal Opportunity Tribunal, which was constituted by three members. The Chairperson was Judge Murrell. 5 During the course of a hearing, Mr Mishra accused Judge Murrell of lying. He asserted that she had made certain statements, which she denied. The statements did not appear in the transcript. Mr Mishra asserted that the transcript had been altered. He sought to have Judge Murrell replaced. He wrote a letter on 9 October 1998 to the Tribunal in these terms: "The hearing will be remain postponed until new Judge (not Judge, Murrell) is appointed. And, new date will be fixed after discussing the both parties. I have requested to Premier about this problem. I am sure Premier will find solution of this problem." 6 Mr Mishra was unrepresented before the Tribunal. Although he did not formally apply to Judge Murrell that she should disqualify herself, Judge Murrell treated his letter as an application that she should do so. She dismissed that application on 14 October 1998 with these words: "I am not aware of any manner in which I have misled or lied to the complainant or said anything else of a dishonest or misleading nature or anything else which might form a foundation for any reasonable belief on his part that I am biased or for some other reason ought to disqualify myself." 7 Mr Mishra thereafter repeatedly failed to attend the Tribunal on days which had been set aside for the hearing of his appeal. On 14 October 1998, on the application of the University, the proceedings were dismissed under s111(1) of the Anti Discrimination Act for want of prosecution. In the course of her judgment, Judge Murrell said this: "Perhaps more importantly, having heard the complainant's evidence in chief, which was given in relation to a merits hearing, it is the Tribunal's view that there is no evidence whatsoever indicating less favourable treatment of the complainant by the respondent on the ground of race." 8 On 3 November 1998, Mr Mishra issued a Summons in the Supreme Court seeking the following orders: "(1) The order of the Administrative Decisions Tribunal (Equal Opportunity Division) made on 16th October 1998, in File No. 23 of 1998, dismissed the complaint and ordering the pay cost. (2) An order that the decision of the Tribunal be set aside. (3) An order that the complaint be remitted for hearing. (4) Cost." 9 The University responded by filing a Notice of Motion. The Motion sought to have Mr Mishra's Summons dismissed under Pt 13 r5 of the Supreme Court Rules. The University maintained that there was no jurisdiction in the Supreme Court to hear Mr Mishra's appeal. 10 It is convenient to deal with the jurisdictional issue first.

Appeal from the Equal Opportunity Tribunal 11 When the Anti Discrimination Act 1977 was first introduced s118 simply provided for an appeal to the Supreme Court against a decision of the Equal Opportunity Tribunal. The powers of the Supreme Court were broad. It could substitute its own decision for that of the Tribunal. The Anti Discrimination (Further Amendment) Act 1981, amended s118. The right of appeal was then limited to a question of law. There was no appeal in respect of a question of fact. 12 The Equal Opportunity Tribunal began hearing Mr Mishra's appeal against the decision of the Anti Discrimination Board on 24 April 1998. The matter proceeding on 25 June, 7 August and 18 September 1998. Hearings were then fixed for 24 September 1998 and 14 October 1998. Mr Mishra was notified, but failed to attend. He apparently objected to the presence of Judge Murrell. Judge Murrell dismissed the proceedings on 14 October 1998. 13 On 6 October 1998 (that is, a matter of days before the decision dismissing Mr Mishra's complaint), the Administrative Decisions Tribunal Act 1997 (Act No. 76 of 1997) came into force. It introduced a new regime. A number of Tribunals, including the Equal Opportunity Tribunal, were abolished. They were replaced by the Administrative Decisions Tribunal. That Tribunal was organised into various divisions. They included the Equal Opportunity Division (s19). An Appeal Panel was established to hear appeals from the different Divisions (s24). 14 At the same time, s118 of the Anti Discrimination Act (permitting appeals from the Equal Opportunity Tribunal to the Supreme Court) was repealed. The following provision was inserted in its place: " 118 appeals to Appeal Panel against decisions and orders of Tribunal. An order or other decision made by the Tribunal under this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made." 15 "Tribunal" is defined by s4 of the Anti Discrimination Act as meaning the Administrative Decisions Tribunal, established by the Administrative Decisions Tribunal Act 1997. 16 The Administrative Decisions Tribunal Act 1997 included transitional provisions. They are relevant to Mr Mishra's Summons. They deal with the circumstance of a hearing before a Tribunal which had not been concluded as at 6 October 1998, when the Tribunal was abolished. Schedule 5, cl 5(2) provided that, upon abolishing of the Equal Opportunity Tribunal, the judicial and other members of that Tribunal shall continue to hold office as members of the Administrative Decisions Tribunal. Schedule 5, cl 14 is entitled "Pending proceedings before an abolished body", and includes the following provisions: "14(2) If an abolished body had commenced to hear (but had not determined) a matter before its abolition, the person or persons hearing the matter: (a) are to continue to hear the matter, and to determine the matter, sitting as the ADT, and (b) have and may exercise, while sitting as the ADT under this clause, all the functions that the abolished body had immediately before its abolition. (2A) A decision made under this clause is taken to be an appealable decision for the purposes of Part 1 of Chapter 7." 17 Chapter 7 of the Administrative Decisions Tribunal Act is headed "Appeals from decisions of Tribunal". Section 113(1) is in these terms: " 113. Right to appeal appealable decisions (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel." 18 The appeal may be made on a question of law (s113(2)(a)), or with the leave of the Appeal Panel, may extend to the merits (s113(2)(b)). The appeal must be lodged within 28 days (s113(3)(a)), or such further time as the Appeal Panel may allow (s113(3)(b)). The Appeal Panel may, of its own Motion, or at the request of a party, refer a question of law to the Supreme Court for its opinion (s118(1)). 19 Provision is also made for an appeal by a party to the Supreme Court. Section 119(1) is in these terms: "119 Right of appeal to Supreme Court (1) A party to proceedings before an Appeal Panel of the Tribunal (whether in proceedings under Part 1 or otherwise) may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings." 20 The Supreme Court may affirm, or set aside, the decision of the Appeal Panel (s120(2)(a)), or remit the matter to the Appeal Panel for a further hearing (s120(2)(b)).

The Jurisdiction of the Supreme Court 21 The decision of Judge Murrell on 14 October 1997 was, by reason of the transitional provisions, a decision of the Administrative Decisions Tribunal. The University submitted that s118 makes it plain that Mr Mishra's right of appeal was to the Appeal Panel of the Administrative Decisions Tribunal, not the Supreme Court. It was open to him to appeal to the Supreme Court from the Appeal Panel on a question of law if he were dissatisfied. It was not open to him, however, to appeal directly to the Supreme Court. 22 That certainly appears to be the intention of the Administrative Decisions Tribunal Act 1997. The Act includes a number of flow charts which emphasise that an appeal must be directed first to the Appeal Panel, and then to the Supreme Court (s41 Overview of Original Decision Making Process; s47 Overview of Reviewable Decisions). 23 However, the Administrative Decisions Tribunal Act, in Chapter 7, Part 3, includes the following provision under the heading "Interrelationship Between the Supreme Court and Tribunal": " s122 Effect of Act Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal. s123 Supreme Court may decline to deal with application for review (1) The Supreme Court may: (a) refuse to grant an application for the review of an original decision of the Tribunal if it is satisfied that, in all the circumstances, adequate provision is made under this Act for the applicant to seek an alternative review of the decision, or (b) refuse to grant an application for the review of a reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made under this Act for the applicant to seek an alternative review of the decision, or (c) refuse to grant an application for the review of an original decision or of a reviewable decision if an application has been lodged with an alternative reviewer for a review of the decision. (2) In deciding whether to refuse an application for review (and without limiting the generality of subsection (1), the Supreme Court may take into account any one or more of the following matters: (a) if the applicant has not yet applied for an alternative review of the decision concerned - whether the applicant would be eligible to apply for an alternative review, (b) whether an alternative reviewer is likely to deal with the matter more expeditiously and cheaply than the Court, (c) whether a favourable determination of the application by the Court would be likely to resolve the issues in dispute, (d) whether the alternative reviewer would be able to give the applicant an appropriate remedy, (e) whether the applicant would suffer any substantial hardship if the application were refused, (f) any other matter it considers relevant." 24 "Review" is defined very widely (s123(3)). It includes a review by way of reconsideration, rehearing, appeal, grant of injunction or prerogative or statutory writ or declaration. However, it does not include an appeal from the Appeal Panel of the Tribunal. 25 The explanatory memorandum in relation to this Part is in these terms: "Part 3 preserves the supervisory jurisdiction of the Supreme Court in relation to decisions of the Tribunal. However, it also confers on the Court the power to dismiss an application for judicial review if it considers that adequate provision is made under the proposed act for the Tribunal to review the decision or if an application for review has already been lodged with the Tribunal." 26 The Administrative Decisions Tribunal Act, s41, provides a helpful summary of certain provisions of the Act, including the following in relation to appeals to the Supreme Court: " s41(1) Appeal to Supreme Court A party to proceedings before the Appeal Panel may appeal against the Panel's decision to the Supreme Court under Part 2 of Chapter 7 on a question of law. Part 3 of Chapter 7 preserves the inherent jurisdiction of the Supreme Court to conduct a judicial review of any decision of the Tribunal." 27 The Supreme Court is given general jurisdiction to do that which may be necessary to administer justice in New South Wales (s23 Supreme Court Act 1970), as well as remedies in the nature of common law writs of certiorari, prohibition and orders for judicial review. 28 The University urges that the Court should not exercise its original or supervisory jurisdiction. The decision having been given by the Tribunal on 14 October 1998, Mr Mishra, although unrepresented, was apprised of his rights. On 27 October 1998, the Assistant Registrar of the newly established Equal Opportunity Division of the Administrative Decisions Tribunal wrote to Mr Mishra in these terms: "You have a right to appeal the Tribunal's decision. You may lodge an internal appeal to the Administrative Decisions Tribunal under the Administrative Decisions Act, 1997. If you wish to lodge an appeal, please complete the attached 'Notice of Appeal' and return it to the Tribunal. You should note an application for appeal needs to be made within 28 days of your receipt of the Tribunal's orders." 29 Mr Mishra, however, had seen a reference to the old s118 of the Anti Discrimination Act in a text book. In evidence before Dunford J, on an interlocutory application, he described what he did after he had been told of the Tribunal's decision. The evidence is conveniently summarised in the judgement of Dunford J (unreported, 12 February 1999) in these terms: (p3) " … and therefore telephoned the Tribunal asking about a right of appeal to this court and that a woman who answered the phone told him that he could appeal to the Tribunal Appeal Panel or through this court (referring to the Supreme Court). He then, he said, consulted a duty registrar of this court, Mr Howe, who also told him that he could appeal to this court, whereupon he instituted this appeal on 3 November." (parenthesis added) 30 Dunford J added: "Whilst there are some difficulties about his evidence I am not satisfied that it is not in substance true. It certainly was close to the changeover brought about by the new Act and unless he was told something by someone about an appeal to this court and if he had only been told or made aware of an appeal to the Tribunal I fail to see why he would have appealed to this court." 31 It would plainly have been better had Mr Mishra appealed to the Appeal Panel, as s118 of the Anti Discrimination Act, in its amended form, contemplates. Such an appeal is likely to have been cheaper, more expeditious and (with leave) may have included an examination of the merits. 32 Mr Mishra is now well out of time to institute such an appeal (s113(3)(a) Administrative Decisions Tribunal Act 1997), although he may still seek an extension of time (s113(3)(b)). 33 Throughout the proceedings before me Mr Mishra has been unrepresented. He has, therefore, not sought to explore the limits of the Court's original jurisdiction (s23), nor the supervisory remedies. He plainly felt a sense of frustration at the University's insistence upon this Court having no jurisdiction. Mr Mishra regarded that issue as having been put to rest by the judgment of Dunford J on 12 February 1999. However, in that he was wrong. His Honour expressed a tentative view, which I share, which was in these terms: (p4) "Another difficulty is the precise effect of s122. My preliminary view is that, without, as I say, having heard full arguments, it would only be available in circumstances where there are grounds for prerogative relief although I note the word 'review' is defined widely as including 'reconsideration, re-hearing, and appeal' as well was prerogative relief. I find it difficult to accept that Parliament in setting up an Appeal panel to review Administrative decisions should also have intended that there should be a right of appeal by way of re-hearing to this court when none had existed before. But, as I say, without full argument I am reluctant to embark on a detailed construction of ss122 and 123." 34 The plaintiff, being unrepresented, the argument before me concerning the proper construction of s122 and s123 of the Administrative Decisions Tribunal Act 1997 was limited, and one sided. To dispose of the appeal upon the basis that Mr Mishra should have first gone to the Appeal Panel leaves me with a sense of injustice. · First, Mr Mishra, on his account, finds himself in this Court because he was inadvertently misled by an officer of this Court as to the appropriate avenue of appeal. · Secondly, being unrepresented, the Court is obliged to sift through the material which has been tendered to determine whether there are errors of law or matters which may attract the Court's supervisory jurisdiction. That process, to a degree, involves an examination of the merits, if only to determine whether certain findings were open (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Haines v Leves (1987) 8 NSWLR 442; Emery & Smythe "Error of Law in Administrative Law" (1984) 100 LQR 612). · Thirdly, time has been lost through the matter being diverted to the Supreme Court. One senses that Mr Mishra will remain paralysed, to a degree, until his matter has been examined. To refuse to deal with the matter on the basis of jurisdiction, and send Mr Mishra back to the Appeal Panel, there to seek an extension of time, will doubtless add to Mr Mishra's impatience and sense of injustice. Accepting his account as to the way in which he came to lodge his Summons in this Court, his delay in bringing an appeal to the Appeal Panel may well be excusable under s118(3)(b). However, to divert him from this Court to that path, with the delay and expense which that entails, would neither serve the interests of the University, nor those of Mr Mishra. 35 Since I have before me the material which is said to demonstrate the validity of Mr Mishra's complaint of racial discrimination, as well as the material in respect of the hearing before the Equal Opportunity Tribunal, it is plainly convenient that I should examine that material. 36 I am conscious that such an examination is little different to a merits review, which is not available in this Court. Nonetheless, in the circumstances, I believe that it is appropriate that I should survey the material which Mr Mishra has submitted. Having done so, I will return to the jurisdictional issue.

Enrolment at the University 37 On 29 March 1991, Mr Mishra was admitted as a candidate for the degree of Master of Engineering (Thesis) Electrical. In a letter to the University he expressed the view that he could complete his degree by the end of 1991. 38 Mr Mishra was supervised by Associate Professor Nguyen. On 22 July 1991, Prof Nguyen reported to the Head of School that Mr Mishra had made "reasonable progress". 39 However, that was to change. In a Progress Report at the end of the Spring semester 1991, Mr Mishra himself reported difficulties. First, in consultation with others, he had selected a particular technique for certain experiments. The technique was unsuitable. Three months were lost before that was recognised. Secondly, Mr Mishra had difficulties in obtaining certain documents, and certain equipment. 40 On 5 January 1992, Prof Nguyen made a further report to the Head of School, Professor Yates. The report was in these terms: "During this semester (Spring 91), Mr Ram Bilash Mishra does not appear to have sufficient knowledge in computing and instrumentation to carry out this project. As a consequence, his progress has been unsatisfactory although Mr Mishra has been working very hard." 41 Prof Yates responded to these comments with his own comment, which was as follows: "There is clearly a problem here. The candidate is under the impression that the work he has done is of high quality and that he will be able to submit soon. The supervisor has serious doubts about whether he has got the capacity to complete it all. Before any letter is drafted I will interview both supervisor and candidate." 42 Having discussed the issues with Mr Mishra, Prof Yates wrote to Mr Mishra on 7 May 1992 in these terms: "I have had the work you have done to date evaluated by Dr Ron Hui to provide an independent view of its quality. Dr Hui agrees with your supervisor that the work you have done so far is possibly acceptable as a survey of current practice, but gives insufficient evidence of your own contribution to the state of the art. You have now reached the stage in your studies where you should be able to work independently. Consequently A/Professor Nguyen and Dr Hui will meet with you once more to define what would constitute an adequate original contribution and you will then be expected to complete a draft of your thesis within six months." 43 Mr Mishra was told that his draft thesis was required by October 1992. 44 On 29 May 1992, Dr Hui wrote to Mr Mishra identifying a number of modifications to his work which were required. 45 On 11 July 1992, an incident occurred which Mr Mishra later said was a symptom of the racism which he had to endure. Mr Mishra's equipment was vandalised. He made a report to Security. The incident was described in these terms, according to the record made by Security: "A soldering iron was laying on my table and somebody purposely damaged the soldering iron and threw it in a cupboard. After searching everywhere for it, I located it in a cupboard. I then reported the incident to Security." 46 On 14 July 1992, Dr Hui wrote to Mr Mishra commenting upon a progress report which had been submitted. Dr Hui said this: "I am very concerned about the lack of new substance in your proposed project." 47 Having described the proposal, Dr Hui provided the following further comment: "In fact, this approach is outdated and is being replaced by the real-time generation of firing patterns in many new optimised schemes." 48 Dr Hui made a number of other comments which were adverse. 49 On 24 July 1992, Prof Yates, then the Head of School, wrote to Mr Mishra in these terms: "Please ensure that you do not allow any non registered persons to accompany you into the University laboratories. Please also ensure that any work you conduct is done in our laboratories so that your supervisor can audit progress. Please keep a log book of when you come in, and what you do and have it with you at all times. I am asking you to take these steps as some allegations have been made that you have attempted to obtain the services of other individuals to undertake work which is associated with your research and should properly be done by you." 50 Mr Mishra responded on 3 August 1992. He said this: "I wish to state here categorically that at no time during my research work I have attempted or even intended to obtain the services of other individuals to undertake work on my behalf. Further, I assure you that all the work done so far has been completed by myself." 51 Mr Mishra was naturally upset by the allegation. He asked for the identify of the person who had made the allegation, and proof. One gathers that neither was provided. Mr Mishra, perhaps not unreasonably, later ascribed the allegation to racism. 52 On 15 September 1992, Prof Nguyen again gave Mr Mishra an adverse report. He described his progress as unsatisfactory. Prof Yates responded as follows: "Mr Mishra has had two unsatisfactory reports in succession. On May 7 I wrote to him explaining that he had not shown any evidence of independent analysis or contribution to the state of the art. In my letter I proposed a deadline of October 1 for the submission of a draft thesis" 53 Prof Yates added: "I believe the University should hold to this timetable. If the conditions are not met his enrolment should be terminated." 54 Mr Mishra sought an extension of time. By letter of 18 September 1992, Prof Yates extended the deadline one month to 1 November 1992. 55 One gathers that the draft thesis was, in fact, submitted shortly before 18 December 1992. On that date Prof Yates wrote to Mr Mishra thanking him, and asking that he submit the final version by the end of January 1993. 56 On 30 December 1992, Mr Mishra wrote to the Head of the Engineering School. He asked that his thesis be accepted without the signature of Assoc Prof Nguyen, and that examiners be appointed. He claimed that in March 1992, Prof Nguyen had withdrawn as his supervisor. He had, therefore, worked with almost no supervision, and no guidance from Assoc Prof Nguyen. 57 One gathers that Mr Mishra had difficulty in meeting the deadline for the final version of the thesis. On 1 March 1993, he wrote to Prof Yates in these terms: "I refer to our telephone conversation on the 26th of February 1993, in which you have asked me to submit the final thesis by 5th of March 1993. I wish to state here that I am now starting to conduct the final load test. All other tests have been carried out and verified by A/Prof Vic Ramsden. I will need some additional time to complete the final load test. All the work done and tests performed have been accomplished at the great expense of my time, energy and total dedication to the single goal of finishing my master's research work. I hope the school appreciate my dedication and sincerity to my work. In the pursuit of finishing my work, I have been recently hospitalised. This has exhausted some of my energies but nevertheless not dampen my spirits." 58 Prof Yates wrote a letter the same date (1.3.93) which was as follows: "It is now well beyond the date that you were required to submit your thesis. If it is not delivered to my office by 5 pm on Friday, 12 March, your Masters degree candidature will be terminated." 59 The letters having crossed, Prof Yates wrote a further letter stating that Mr Mishra had been granted considerable leniency in being allowed to submit his thesis well beyond the deadline. The deadline of 12 March 1993, therefore, remained. 60 On 9 March 1993, Mr Mishra wrote to Professor Gostelow, the Chairman of the Faculty of Engineering Research Degree Committee. Surprisingly, given the correspondence which I have extracted, Mr Mishra claimed not to have been told that his progress had been unsatisfactory. The letter made no accusation of racism as such. Nonetheless, it included a number of matters which Mr Mishra later characterised as examples of racism. For instance, the letter included the following: "5. My own circuits which I had constructed to conduct the test had been deliberately damaged. I had lodged a report of this to the school as well as to the security. No action was, however, taken to investigate in to the matter as to who did all this. 6. I had complained to the school that the supporting staff in level 25 had insulted me in the month of August 1992. No action was however taken against anybody." 61 Mr Mishra added the following, which is somewhat puzzling in view of the correspondence which I have quoted: "11. I was never informed officially that I have from such and such date 3 more months to finish my work. I can only think of now that it has been done deliberately to dupe me and corner me so that I could be told all of a sudden that your time is up. It has been a trap set specifically to make sure that I run out of time and consequently failed." 62 One gathers, nonetheless, that Mr Mishra met the deadline. The thesis was submitted. On 11 March 1993, Prof Gostelow, for the Research Degree Committee, informed Mr Mishra that the Committee would consider his case at its April meeting. 63 The Committee met on 7 April 1993. Prof Yates outlined the recent history concerning Mr Mishra. The Minutes recorded the outcome in these terms: "After discussion, the Committee decided that Professor Yates would write to Mr Mishra explaining to him that his draft thesis was to be evaluated and that as a part-time student he had four more semesters in which to write up his thesis." 64 Meanwhile, one gathers that Mr Mishra continued to conduct experiments relevant to his thesis. He wrote to Assoc Prof Ramsden on 19 May 1993, saying that the experiment had been completed successfully. Prof Ramsden prepared a report to Prof Yates on 24 May 1993. The report opened with these words: "Mr R B Mishra is enrolled as a part time candidate for an M.E.(Thesis). You have asked me to assess his progress. I have done so, based on first-hand observation of his work from October 1992 to the present time, and on an assessment of his draft thesis submitted in March 1993. I regret to report that I believe his progress is unsatisfactory and that it will not be possible for him to reach the required standard." 65 Prof Ramsden elaborated. The language of the report is temperate and specific. The report concluded with these words: "The above comments are major examples of the difficulties I have found with Mishra's draft thesis and general progress. I could detail other examples if necessary. It might be said that some progress has been made in that a microprocessor controlled inverter has been constructed and tested, software has been written, and certain calculations performed. But Mishra has sought a lot of help from other students and staff at UTS, and at the Universities of Sydney and NSW. This, of itself, is not necessarily bad, if he could demonstrate a competent understanding of the area of research. I believe that he has not done this, and could not do so." 66 On 3 June 1993, Prof Yates wrote to the Chairman of the Research Degree Committee recommending the termination of Mr Mishra's candidacy. On 16 June 1993, the Committee resolved to terminate that candidacy. The Committee's resolution included the following: "The Committee also studied the extensive correspondence from the student, and his various claims concerning his supervision and support as a part time research degree candidate. It judged that the candidate had received fair and reasonable notice of the School's concerns about his performance and progress over an extended period, together with generous support from several quarters in his attempt to address the requirements (to present a draft outline of his thesis by 7 November 92) set by the Head of School on 7 May 92." 67 On 25 June 1993, the Registrar of the University informed Mr Mishra. Mr Mishra was told that he had the right to appeal against his exclusion. 68 On 12 July 1993, the Student Ombudsman wrote to the School of Engineering. He sought the School's assistance in dealing with a complaint by Mr Mishra that his termination was invalid. The letter identified a number of questions, including the following: "5. The minutes of the Higher Degree Committee of 7/4/93 indicated that the candidate was to be given four more semesters to write up his thesis. Was the decision in conflict with the later decision to terminate enrolment?" 69 On 14 July 1993, Mr Mishra appealed against his exclusion. His letter to the Registrar provided a detailed commentary upon the progress reports submitted from time to time by Assoc Prof Nguyen. 70 Prof Yates responded to the letter from the Student Ombudsman on 19 July 1993. He said that the draft thesis submitted by Mr Mishra was not of the required standard. He furnished the following response to Question 5: "5. The Higher Degree Committee met on 7 April. At that time Professor Ramsden had not completed his assessment. The decision to give Mr Mishra four more semesters was taken in the knowledge that should Professor Ramsden recommend it, Mr Mishra's progress would be deemed unsatisfactory for 1992, and that this, coupled with the unsatisfactory Spring 1991 report would constitute grounds for recommending termination." 71 The Research Degree Committee met once more on 17 August 1993. It resolved to rescind its decision. It reinstated Mr Mishra's candidacy. The Minutes included the following: "After an extensive discussion the Committee RESOLVED to rescind its decision in June to terminate Mr Mishra's enrolment, in acknowledgment of some confusion in its understanding of the sequence of events leading to the submission of his thesis in March. This decision was reached with reluctance because the Committee believes that Mr Mishra has been given every opportunity to produce work of the necessary standard for a master of engineering degree, and has consistently failed to demonstrate a capability to do so. The termination of enrolment has been rescinded not on academic grounds but because he was given administrative directions, in relation to the submission of his thesis, which may have been confusing and could possibly have had an effect on the quality of the document he submitted." 72 On 17 September 1993, Prof Belcher, as Chairman of the Research Degrees Committee, wrote to Mr Mishra. He identified three options for the completion of his degree. The first option, and the one recommended, was that Mr Mishra withdraw from candidature for the degree. The second option was the examination of his thesis by external examiners. The Committee recommended against that option, stating that the thesis was not of the required standard, and would be likely to fail. The third option was to continue his candidature at the University, and ultimately submit a new thesis. 73 On 20 October 1993, Mr Mishra wrote to the Academic Registrar indicating that he wished to submit his thesis to external examiners. On 16 November 1993, Mr Mishra wrote to Prof Yates. It was clear that he felt humiliated. He said this: "Just to start with, nobody in the electrical engineering department has been formally informed that my candidature has been restored. This has caused me lot of embarrassment explaining to everybody about my current student status." 74 Mr Mishra referred to other indignities which would ultimately be attributed to racism. First, he claimed his account on the computer work station was removed. Secondly, he was denied access to photocopying. When he attempted to photocopy he was asked to leave. Thirdly, his name was removed from the pigeon hole. 75 On 3 December 1993, at the instance of the Faculty, Mr Mishra signed a document signifying that he wished to have his thesis examined by external examiners against the advice of the Head of School. Care was taken to ensure that those selected to examine his thesis had no knowledge of the circumstances of his candidacy. 76 Two examiners were appointed. They were provided with a form, and required to select one of the following recommendations: "(i) that the candidate be admitted to the Degree. (Subject only to any minor corrections to be completed to the satisfaction of the Head of School.); or (ii) that the candidate be admitted to the Degree, subject to amendments being made to the thesis to the satisfaction of the Head of School and the Research Degrees Committee; or (iii) that the candidate be admitted to the Degree subject to the provision of oral and/or written clarification of particular points satisfactory to the examiners; or (iv) that the candidate be not yet awarded the Degree, but be permitted to re-submit the thesis in a revised form for re-examination. Areas requiring major amendment are detailed in the examiner's report; or (v) that the candidate not be admitted to the Degree and not be permitted to re-submit." 77 The first examiner selected recommendation (iv). He added the following comments: "This thesis is very poorly written. I tried my best to make corrections, but finally gave up in frustration. The material is interesting and contains significant new information, but must be repackaged extensively. There were instances in this thesis where an approach was suddenly presented without any prior justification or discussion of alternative schemes. For example: (a) No mention is made as to why SHE is the "right" choice for the plant (b) The control model is inadequately developed. I recommend that his thesis be rewritten in its entirety. Unfortunately, I will be on sabbatical until April, 1995 and will therefore not be able to provide any further assistance." 78 The second examiner appeared to favour option (i) although he required certain amendments to the text of the thesis. His report was in these terms: "The candidate has done work which is somewhat design oriented, while closely following the work published in IEEE Trans in July/August issue of 1989. The novelty of the thesis is in real-time implementation and realisation of a 3-phase solid-state power factor compensator alone with harmonic suppression using a 16-bit single-chip controller to go with IGBT based voltage-source inverter. The candidate has given sufficient information on the approach adopted in building such a versatile system. However I wish the following points should have been looked into while writing the thesis. i) There are a number of 'sentence - construction' errors in spite of the word-processing software used in the preparation of the thesis. ii) the whole thesis writing looks like a project report submitted to a research funding agency rather than a thesis (incorporating the critical analysis of the earlier works as well as high lighting one's contributions) submitted to a university. In all, subject to incorporating the above mentioned aspects in the thesis, the candidate may be awarded the MS degree. The Head of the school & research degree committee may ensure these aspects before releasing the thesis to your University library and the thesis need not be referred back to me." 79 On 7 June 1994, Prof Yates wrote to Prof Belcher, then the Head of the Graduate School of Engineering, suggesting that Mr Mishra be given two further semesters to resubmit his thesis, incorporating the required amendments. The Faculty resolved to accept Prof Yates' recommendation. Mr Mishra was required to resubmit his thesis by June 1995. Professors Parr, Samali and Ramsden were appointed as a supervisory panel to ensure the availability of facilities and support. 80 Prof Parr wrote a report on 5 December 1994 which included the following: "Mr Mishra has extensively revised his thesis and has substantially improved it. In my opinion it is now in the best achievable condition and is ready for examination. The experimental results are not fully satisfactory. All that has been possible is to place on them the most likely interpretation after considering the evidence available. The only alternative would be to reconstruct the equipment and undertake new tests. At this distance in time, and in the circumstances, I do not think this is realistically feasible. Accordingly I have encouraged Mr Mishra to submit the thesis with the results in their present form." 81 The thesis was resubmitted for examination on 15 December 1995. One of the original examiners was not available to re-examine the thesis. The other made the following recommendation: "(ii) that the candidate be admitted to the Degree, subject to amendments being made to the thesis to the satisfaction of the Head of School and the Research Degrees Committee." 82 The examiner provided his comments as follows: "The thesis does give evidence of capability for independent work, in that a particular exemplar of the system was designed and constructed by the candidate using a 16 bit microprocessor to generate the switching waveform and provide the control, and some experimental results were obtained. In a note provided by the supervisor the inadequacy of the experimental results is acknowledged and the circumstances are explained. The thesis is not in a form that could be considered as of the same standard as a refereed paper, either in form or substance." 83 The examiner then gave a number of illustrations. He ended with the following recommendation: "the candidate has achieved something - the ability to at least partially understand the operation of a solid state power factor compensator and to develop hardware and software that at least partially worked and make some measurements that with the benefit of a lot of after-the-fact re-interpretation indicate that the system did provide some power factor correction (although the bulk was provided by the filter capacitor that was in parallel with the load). I recommend that the candidate be admitted to the degree subject to the thesis being amended in the light of the comments made above as interpreted by the Head of School and the Research Degrees Committee." 84 A substitute examiner was found, one gathers from within the University itself. He recommended that Mr Mishra be admitted to the degree. He provided a report which included the following: "The thesis is well written and has high-lighted the contributions of the candidate effectively. The only draw of this type of VAR compensator, as the candidate himself has expressed is in terms of its poor transient response. In all, I recommend that the candidate be awarded the Master of Engineering Degree." 85 On 6 March 1995, Mr Mishra wrote to the Student Equality Officer, complaining of "mental torture and harassment" by Prof Yates. His letter included the following: "In my case Prof. Yates was not objective, he did not consider my case in an unbiased way. Prof. Yates has discriminated against me and played mischief with me and he has not followed the university rules, but he has followed his own rules." 86 The Student Ombudsman thereafter wrote to Prof Yates (on 7 March 1995), seeking his comments upon his relationship with Mr Mishra, and that of the School of Engineering. In the meantime, Prof Belcher recommended that Mr Mishra be admitted to the degree of Master of Engineering.

Complaint of Racism 87 Mr Mishra wrote to the University on 21 April 1995 complaining that whilst completing his degree he was not offered a scholarship. He wrote again on 24 May 1995. He said that, when he began in 1991, he saw an advertisement for a scholarship on the noticeboard. The scholarship was available to a student at the Masters level. He took the matter up with Assoc Prof Nguyen. He was told that he would not be given the scholarship. His letter in May 1995 then stated the following: "Finally my candidature was terminated in June 1993. After appeal, my candidature was reinstated. I explained the scholarship matter to the Ombudsman and was advised by him that I can claim for a scholarship if I pass otherwise I cannot." 88 Assoc Prof Nguyen responded to this complaint on 30 March 1995. He said that he had no knowledge of a scholarship available for Mr Mishra's work. He added: "To highlight how difficult it is to get a scholarship at UTS, recently one of my students with First Class Honours and with a WAM of more than 80 could not even secure a postgraduate scholarship to support his PhD application." 89 His letter continued: "Mr Mishra had threatened me and other supporting staff with legal actions after only one semester at UTS as a postgraduate student. I have been fair in all of my dealings with Mr Mishra without the reciprocal courtesy. He never applied for the Research Assistant position, however his lack of background in advanced control and the constant conflict he caused would have made him an unsuitable candidate for the Research Assistant position." 90 On 25 September 1995, Mr Mishra wrote to the President of the Anti Discrimination Board complaining of racism. His letter concluded with these words: "I strongly believe that I have been subjected to these occurrences over the last four years including humiliation, inconvenience, denigration, academic injustice, harassment, denial of natural justice because I am an ethnic of Indian origin." 91 The Anti Discrimination Board took some time to deal with Mr Mishra's complaint. On 5 December 1996, it wrote to the University seeking its comments. The Board's letter incorporated a further complaint from Mr Mishra, which was in these terms: "He successfully completed his degree in May, 1995. On 12 July, 1995, when he sought voluntary work at the University, he claims that he was again unfairly treated when he was allegedly advised by Professor Bryce that the University would not offer him any voluntary work." 92 On 24 July 1997, the Anti Discrimination Board decided to accept Mr Mishra's complaint, although lodged well outside the six month time limit under s88(3) of the Anti Discrimination Act 1977. It wrote to the University seeking its response to the complaints. 93 The University responded on 20 August 1997. It denied discrimination. It recounted much of the history, as revealed by contemporaneous documents set out above. The history included the comments by the Head of School in a memorandum of 26 July 1993, where he said this: "There is hardly a member of staff in the School that has not endeavoured to provide assistance to Mr Mishra. He has also had assistance from academics at both neighbouring universities. There has been no conspiracy to thwart Mr Mishra. At worst, some of the many staff who initially provided generous help may eventually have been a little short with him as his demands on their time escalated … Three senior academics in the School have pointed out fundamental errors in his understanding, yet his appeal conveys no acknowledgment of his misconceptions, he simply persists in arguing he is correct." 94 Dealing with the alleged failure to offer Mr Mishra voluntary work, the University provided the following response: "The University has been unable to locate any record of Mr Mishra's attempt to seek 'voluntary work experience with the University'. The University does not offer such a program to individuals, nor is it obliged to do so. The only work experience that the University provides is under employment or rehabilitation schemes sponsored by relevant government agencies or short term work experience placements for secondary school students. Mr Mishra does not fall into either category." 95 The University insisted that it had provided Mr Mishra with an exceptional level of support and assistance. 96 The Anti Discrimination Board asked Mr Mishra why he had not complained of racial discrimination before the completion of his degree. He said this: "I never complained but I kept records. The reason was that if I would have complained then I would have been not allowed to continue my studies furthermore. I kept all these informations well documented and was given to the Ombudsman after termination of my candidature." 97 On 20 October 1997, the Acting President of the Anti Discrimination Board decided that Mr Mishra's complaint against the University was misconceived, in terms of s90(1) of the Act, that is, mistaken. It wrote to Mr Mishra providing reasons for its decision. Its reasons were as follows: · "it appears that the University has provided a number of supervisors for you and that there has been a breakdown in your relationship with each for reasons of academic merit; · the University has provided what appear to be valid reasons for the termination and later reinstatement of your candidature; · you have been awarded the degree of Master of Engineering; · it appears that you have misunderstood why the University has acted in the way it has in relation to the preparation and examination of your thesis; · it appears that you have misunderstood why the University has acted in the way it has in relation to allegations against you of harassment; · it appears that you have misunderstood why the University has acted in the way it has in relation to the availability of work experience opportunities."

The Equal Opportunity Tribunal 98 Mr Mishra appealed to the Equal Opportunity Tribunal. Judge Murrell was then the Chairperson of that Tribunal. The University responded by making an application under s111 of the Anti Discrimination Act to dismiss Mr Mishra's claim. Under that section the Tribunal is given the power to dismiss a complaint where it is "frivolous, vexatious, misconceived, or lacking in substance", or where, for "any other reason", a complaint should not be entertained. 99 Mr Mishra appeared unrepresented. The Tribunal decided not to deal with the University's application to dismiss the complaint, but rather to investigate the merits. On 24 April 1998 the matter was mentioned before Judge Murrell and the Tribunal members. 100 On 25 June 1998 Mr Mishra appeared. He sought an adjournment upon the following basis: (T1) "COMPLAINANT: Yeah, the reason is this, some social disturbance has occurred suddenly since couple of weeks and other things that I am preparing some people for publications of my research. So these things I wouldn't control and put my concentrations to - on these complaints, so this is the reasons, the thing's basis." 101 Her Honour ultimately gave an adjournment until 7 August 1998. As it happened, the matter did not proceed on that day, and was again adjourned until 18 September 1998. 102 In the course of the hearing on 18 September, the following exchange occurred: (T.3) "COMPLAINANT: Yes I'm telling you in your word, in your word it was 7 August '98 that you asked this respondent solicitor, please bring the witness - or sorry, the proof to disqualify the complaint. That was the discussion. CHAIRPERSON: No I don't think I would have said that Mr Mishra because that would be …. COMPLAINANT: You don't say that. Well do you have your proof that's not the things which I already wrote a letter and attached the study. CHAIRPERSON: Yes, you've sent various faxes alleging that but I don't think that … COMPLAINANT: You speak lies. CHAIRPERSON: Sit down Mr Mishra." 103 Mr Mishra repeated the allegation a number of times. Notwithstanding these comments, Judge Murrell continued to patiently hearing the matter, recognising that Mr Mishra spoke good but imperfect English, and that there were, therefore, difficulties in communicating. Mr Mishra gave evidence. He described his treatment by the University. The matter was adjourned until 24 September 1998. 104 After the hearing Mr Mishra wrote to the Tribunal, repeating his accusation that Judge Murrell "had spoken lies". Mr Mishra failed to appear on the adjourned date, 24 September 1998, although he had been reminded of that date. The matter was again adjourned until 14 October 1998. 105 The Registrar wrote to Mr Mishra on 24 September 1998, advising him of the new date, and the importance of attending. Mr Mishra wrote to the Tribunal on 25 and 29 September 1998, and 1 October 1998. His letter of 29 September 1998 included these words: "I am repeating again, please depute another Judge (Not Judge, Murrel) to handle my complaint. The simple logic, a person, who is dishonest, can be a Judge?" 106 The Registrar again wrote to Mr Mishra on 6 October 1998 reminding him on the adjourned hearing date, 14 October 1998. Mr Mishra wrote to the Tribunal further letters on 6 October 1998 (three letters), 8 October 1998, 9 October 1998 and 13 October 1998. He did not attend on 14 October 1998. 107 At the hearing on that day Judge Murrell first dealt with what she took to be an application that she be disqualified from hearing the matter. She refused to disqualify herself, providing reasons for her decision. Judge Murrell then dealt with the application by the University to dismiss the complaint under s111 of the Anti Discrimination Act. The complaint was dismissed for want of prosecution by Mr Mishra.

Conclusion 108 There is no material before me which suggests an error of law on the part of the Equal Opportunity Tribunal, or the Administrative Decisions Tribunal, as it became, when judgment was given on 14 October 1998. 109 The accusation by Mr Mishra against Judge Murrell was unwarranted. He had clearly misunderstood what she had said. There was no basis upon which the parties, or a member of the public, might entertain that Judge Murrell might not bring an impartial and unprejudiced mind to the resolution of the issues involved in Mr Mishra's complaint (R v Watson ex parte Armstrong (1976) 136 CLR 248; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-94). 110 In dismissing the application under s111, her Honour identified the correct test. Given the failure of Mr Mishra to pursue his complaint, the decision to dismiss that complaint was plainly open. The comment made by her Honour that there was no evidence of any discrimination against Mr Mishra on the basis of race, was likewise open to her. 111 Mr Mishra is a proud and intelligent man. I do not doubt that he felt humiliated by aspects of his treatment by the University. He may have attributed such treatment to racism. However, I do not believe it can, objectively, be so attributed. The University was seeking to safeguard standards. It perceived that Mr Mishra was not able to meet those standards. Mr Mishra, as it happens, was ultimately successful in meeting the required standard, and was awarded the degree. 112 I am satisfied that, were I permitted to review Mr Mishra's complaint on its merits, I would dismiss that complaint. It is, therefore, unnecessary for me to consider the question of jurisdiction, and whether the complaint might fit within the narrow confines of prerogative relief available in this Court.

In matter number 30109/98 I dismiss the Summons, and order the plaintiff to pay the defendant's costs.

I dismiss the Notice of Motion by the University for an order under Pt13 r5. There should be no order as to costs on the Notice of Motion. **********

Last Modified: 06/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

New South Wales Supreme Court CITATION : Mishra v University of Technology, Sydney [1999] NSWSC 1324 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30109/98 HEARING DATE(S) : 09/06/99 16/12/99 JUDGMENT DATE : 25 February 2000

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