Rowley v Charles Sturt University

Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Choi v NSW Ombudsman [2022] NSWSC 1681
Minister for Immigration, Local Government & ethnic Affairs v Taveli (1990) 23 FCR 162
O’Reilly v Mackman (1983) 2 AC 237
Rowley v Charles Sturt University [2024] NSWCATAD 229

Texts Cited: Nil

Category: Procedural rulings

Parties: Rev Comrade Rowley (Plaintiff)
Charles Sturt University (Defendant)

Representation: Counsel:
Plaintiff (Self-Represented)
Solicitors:
Plaintiff (Self-Represented)
Minter Ellison (Defendant)

File Number(s): 2024/00334737

Publication restriction: Nil

JUDGMENT

1. On 24 June 2023, Mr Rev Comrade Rowley (“Mr Rowley”) lodged a complaint with the President of Anti-Discrimination NSW (“ADNSW”) alleging disability discrimination in education, transgender discrimination in education, and victimisation pursuant to ss 49A, 49B, 49C, 49L, 38A, 38B, 38K, 50 and 53 of the Anti-Discrimination Act 1977 (NSW) (“the Act”).

2. On 26 February 2024, the President of ADNSW declined the complaint under s 92(1)(a)(i) of the Act on the basis that she was satisfied that it was lacking in substance.

3. Mr Rowley requested that the President refer the complaint to the New South Wales Civil and Administrative Tribunal (“the Tribunal”) in accordance with s 93A of the Act. Pursuant to s 96(1) of the Act, such a complaint may not be subject of proceedings before the Tribunal without the Tribunal's leave. That provision is in the following terms:

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

4. The Tribunal held a hearing in relation to the application for leave under s 96(1) of the Act on 1 May and 4 July 2024.

5. On 13 August 2024, the Tribunal determined to refuse leave for Mr Rowley’s complaint to proceed to a hearing pursuant to s 96(1) the Act: Rowley v Charles Sturt University [2024] NSWCATAD 229 at [104] (“the Decision”).

6. On 10 September 2024, Mr Rowley commenced proceedings in this Court by Summons (“the Summons commencing an appeal”). On the face of the Summons commencing an appeal, it appeared to be an appeal from the Decision. The Summons commencing an appeal refers to the “Type of Appeal”; “Details of Appeal; and “Appeal Grounds”.

7. On 2 October 2024, Charles Sturt University (“CSU”) filed a Notice of Motion (“the CSU Notice of Motion”) objecting to the competency of the Summons commencing an appeal on the basis that no appeal lies from the Tribunal to the Court in relation to the Decision*.*

8. On 5 December 2024, Mr Rowley filed a Notice of Motion (“the 2024 Notice of Motion”) seeking leave to:

9. amend the Summons commencing an appeal to change the nature of the proceedings to a judicial review of the Decision or alternatively, for the Court to receive a fresh application for judicial review by Summons; and

10. extend the time to commence proceedings by way of judicial review.

11. The amended form of the Summons brought by Mr Rowley bore the title “Summons (Judicial Review)” and sought various forms of relief, which primarily consisted of relief in the form of “an order in the nature of certiorari setting aside or declaring invalid the Decision of the second respondent” (“the Summons for Judicial Review”) The grounds in support of the Summons for Judicial Review primarily focused upon errors of law.

12. The Summons commencing an appeal and the Summons for Judicial Review shall be collectively referred to as the “substantive proceedings”.

13. On 16 December 2024, Registrar Hedge ordered that the CSU Notice of Motion and 2024 Notice of Motion be heard together with the substantive proceedings at the final hearing.

14. On 19 December 2024, the Tribunal filed a submitting appearance in the substantive proceedings.

15. On 8 September 2025, Registrar Hedge ordered that the substantive proceedings be listed for a final hearing on 24 February 2026 on an estimate of 2 days (if the 2024 Notice of Motion was successful), or otherwise 1 day.

16. In the proceedings before the Court sitting in the Duty List today, Mr Rowley explained that he intended to rely upon an affidavit filed on 15 June 2025, together with a colour coded exhibit bundle. The summary of those documents in Mr Rowley’s written submissions (“the Table”) indicates that, in total, they consist of at least 1794 pages.

17. The solicitor appearing for CSU contended that Mr Rowley would also rely upon submissions dated 3 February and 17 June 2025

18. In the substantive proceedings, CSU will rely on a solicitors' affidavit of Jacob White dated 1 September 2025 and a tender bundle of documents comprising the record of the proceedings before the Tribunal.

19. By way of a Notice of Motion filed 15 June 2025 (“the Motion”), Mr Rowley sought the following orders:

“(1) An order in the nature of granting leave for all parties to give oral evidence under the Oaths Act 1900 for cross-examination to be permitted pursuant to Reg 59.7 UCPR 2005.

(2) Liberty to apply for all parties’ to be heard without restriction.”

18. This judgment concerns the Motion.

19. In support of the Motion, Mr Rowley relied upon his affidavit of 11 June 2025. As he explained in oral submissions, the affidavit contains “interrogatories” which were a series of questions which Mr Rowley posed to CSU and proposed to put to various witnesses in cross examination. I will return to that notion momentarily.

20. Mr Rowley also relied upon a document which was described as “ANNEX 12092025 Mr RCR’ Brief Supplementary Written Submissions”. It became clear during the course of questions from the Court to Mr Rowley during his oral submissions that the document did not consist only of submissions. The submissions contained the Table referencing the documents otherwise filed in the substantive proceedings together with some additional documents annexed to the submissions.

21. During his submissions, Mr Rowley clarified the true effect of the order sought in the Motion. Mr Rowley explained at the start of the proceedings today that he had sought to issue subpoenas to attend to give evidence in the substantive proceedings to the following persons, employees of CSU:

22. Joanne Stokes;

23. Anthony Reeves;

24. Melanie Rumble;

25. CSU Disabilities;

26. CSU LGBTIQI+ Allied Network;

27. David Neville;

28. Renee Kelly;

29. Kelaney Radika; and

30. Mr Rowley’s CSU counsellor.

31. The subpoenas were also to be directed to CSU students, Radika and Adrian Sukumar.

32. That application was not accepted by the Court’s Registry, and he was directed to file an appropriate application to that end.

33. By the Motion, Mr Rowley’s intention is to, in the event that such subpoenas were to issue, cross-examine each person subpoenaed in the substantive proceedings. He did not wish to cross-examine Mr White.

CONSIDERATION

25. I shall approach the Motion upon the basis that the relief sought by Mr Rowley under r 59.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) is directed to the judicial review proceedings which he seeks leave to bring by the 2024 motion. I shall also approach the Summons for Judicial Review as either seeking relief under s 65 or 69 of the Supreme Court Act 1970 (NSW).

26. In those circumstances, and by virtue of r 59.1(1) of the UCPR, r 59.7 applies to the substantive proceedings as judicial review proceedings. Rule 59.7 of the UCPR is in the following terms:

(1) Evidence is to be given by way of affidavit, unless the court directs otherwise.

(2) Affidavits are to be served on the other parties in accordance with any timetable fixed by the court.

(3) Cross-examination is permitted only by leave of the court. Leave should, if practicable, be sought prior to the hearing.

(4) A party may not, without the leave of the court, seek discovery from, or interrogate, another party to the proceedings. An application for leave is to include a draft list of categories of documents to be discovered or draft interrogatories.

27. The application made by Mr Rowley in the Motion is fixed upon the question of the provisions of r 59.7(3), as his attention was directed to leave being given to cross-examine. However, Mr Rowley does not seek leave to cross-examine upon Mr White’s affidavit, which is the only affidavit evidence for CSU in the substantive proceedings.

28. Mr Rowley’s motion is, however, predicated upon the basis that he would be given leave to cross-examine potential witnesses who would not give evidence by affidavit because they would be called in his case by way of subpoena. In that sense, the provisions of r 59.7(1) of the UCPR may operate, although nothing in particular turns on that question. Nor do I propose to determine this application by a self-represented litigant upon the basis that objection may be taken to him to cross-examining witnesses subpoenaed by him.

29. Further, and before I turn to the primary considerations in the resolution of this matter, I would also observe that, generally speaking, the broad observations referred to by CSU about the ordinary limits upon the calling of evidence in judicial review proceedings, whilst helpful, does not sufficiently address the gravamen of the difficulties facing Mr Rowley’s application. In any event, the Court has a broad discretion in relation to the examination and cross-examination of witnesses and, as CSO properly conceded, cross-examination in judicial review proceedings may be permitted where the justice of the particular case requires it: Minister for Immigration, Local Government & ethnic Affairs v Taveli (1990) 23 FCR 162 at 190 (per Hill J), applying O’Reilly v Mackman (1983) 2 AC 237 at 282-283.

30. The essential difficulty with Mr Rowley’s application is that, whilst his Summons for Judicial Review references jurisdictional error or errors of law on the face of the record, the application on the Motion is quite evidently directed to that which is impermissible for the purposes of judicial review, namely, merit review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 326-335 (per Mason CJ).

31. It is evident from Mr Rowley’s oral submissions today, his written submissions and his affidavit in support of the Motion, that the Motion and his potential application to issue subpoenas are directed at the merits of his underlying complaint of discrimination rather than whether there is any error or law in the Decision.

32. As CSU pointed out by way of illustration, Mr Rowley has indicated that he proposed to adduce oral evidence or cross-examine witnesses in relation to topics such as:

33. the opinion of officers of CSU in relation to marriage equality laws, the church and other matters;

34. whether or not CSU accepts certain personal attributes of the plaintiff;

35. CSU's understanding of laws and phrases such as "inappropriate communication"; and

36. further detail of the events described in the plaintiff's complaint before the ADB, including the reasons why CSU did or did not do certain things when the plaintiff was its student.

37. It is evident that, by the Motion, Mr Rowley seeks to cross-examine officers of CSU who are not witnesses in the substantive proceedings by way of affidavit (on behalf of either Mr Rowley or CSU), but persons bought to the proceedings by subpoena.

38. The application bought by the Motion misapprehends the true nature of the judicial review proceedings and thereby seeks to introduce irrelevant considerations to those proceedings.

39. Furthermore, the notion that the Court may exercise a discretion to permit evidence to be led in judicial review proceedings by way of subpoenaed witnesses being cross-examined is misconceived, both as a proper approach as to judicial review proceedings and, in any event, the taking of evidence from such persons.

40. I have no doubt that Mr Rowley feels passionately about what he contends is discrimination against him by CSU. Nor do I doubt that, for the same reason, he wishes to obtain a merit-based consideration of the issues associated with that alleged discrimination. However, in my view, the judicial review proceedings he has brought are not, in the circumstances, available to ventilate those concerns in that manner.

41. Finally, Mr Rowley made a submission that because of his afflictions, he finds it easier to explain matters orally than in writing. It is for that reason that the Court took some time to ask questions of Mr Rowley to have him explain the Motion.

42. I have reached the present determination based upon the submissions he made as to the scope of the Motion. He has not identified any additional evidence he seeks to adduce orally or in cross-examination than that which I have described above.

43. In all the circumstances, the Motion should be dismissed.

44. I do not consider it is appropriate to deal with the costs of these proceedings separately to the substantive proceedings, and accordingly I will make an order for costs in the cause.

ORDERS

41. The Court makes the following orders:

42. The Notice of Motion filed by Rev Comrade Rowley on 15 June 2025 in the proceedings is dismissed.

43. Costs shall be costs in the cause.

**********