Vafa v Holdsworth; Vafa v University of Newcastle

Layout of the school

1. Throughout the period A/Prof Holdsworth acted as Ms Vafa's supervisor (August 2015 to November 2017, "the period of supervision"), he and Ms Vafa used two laboratories in the University's physics building, named PG101 and PG104. Each contained computers, technical equipment and were used by undergraduate students. PG104 was managed by Dr Sharafutainova.
2. A/Prof Holdsworth and Dr Sharafutainova each had offices within the physics building. Initially Dr Sharafutainova shared her office with four students, and from late-2016, with one other student.

Study trip to Ireland

1. By April 2017, Prof Andersson-Engels had moved from Lund University to University College Cork. Between early-April 2017 and late-June 2017, Ms Vafa and A/Prof Holdsworth were based at the University College Cork where they undertook research and modelling relevant to Ms Vafa's thesis. For much of that time they worked at adjacent desks in the open plan Tyndall National Research laboratory which was also used by others.

Ms Vafa remains overseas to October 2017

1. On 23 June 2017, Ms Vafa travelled to Munich to present a paper at a conference. She then travelled to Sweden and took four weeks personal leave. She returned to Australia on 17 October 2017 after spending 10 weeks in Iran (1 August 2017 to 16 October 2017).
2. An issue in dispute is whether A/Prof Holdsworth was aware of and had approved Ms Vafa spending 10 weeks in Iran on personal leave.
3. A/Prof Holdsworth claims that he was extremely disappointed to discover that Ms Vafa had done little work on her PhD in the 10 weeks she spent in Iran especially as he had established a software platform to enable each of them to log in remotely and continue to work on Ms Vafa's research project.
4. A/Prof Holdsworth claims that Ms Vafa told him that while in Iran she would be undergoing palate reconstructive surgery and, while convalescing, would continue to work on her thesis. (Shortly before coming to Australia, Ms Vafa was diagnosed with and treated for cancer of the palate.) A/Prof Holdsworth said he was surprised to later learn from Ms Vafa that the foreshadowed surgery did not take place and instead a dentist refitted her prosthetic palate.
5. Ms Vafa claims that A/Prof Holdsworth not only knew but had approved her not working on her thesis while in Iran, pointing in support to her travel diary. The entries in that diary for the period 18 July 2017 to 15 October 2017 state that Ms Vafa was on personal leave.
6. According to A/Prof Holdsworth, before purchasing an airfare for a student who had been approved to travel overseas, the University required the student to prepare a travel diary to enable fringe benefits tax to be calculated. The student was required to submit the diary to their supervisor, who in turn forwarded it to the Head of School, who in turn submitted it to the University's finance department. In cross-examination A/Prof Holdsworth said he could not recall forwarding Ms Vafa's diary to the head of school in December 2016 but accepts that he did. Nonetheless, he disputes that the travel diary evidences that he approved Ms Vafa doing no work on her thesis for 10 weeks. He claimed that he sought to provide Ms Vafa with flexibility to enable her to have dental work carried out in Iran. He insists that he understood that she would continue to work on her thesis while she was convalescing and that, when she was well enough, she would return to Australia. He said he was prepared to accept that Ms Vafa would be working at a reduced rate while in Iran but not that she would be doing no work at all. He said it was his understanding that under the terms of their scholarship PhD students were only entitled to four weeks personal leave and, if they took in excess of that amount, it would impact on their scholarship.

Alienware computer

1. A/Prof Holdsworth purchased an "Alienware" computer from his research funds to enable Ms Vafa to undertake modelling work for her thesis. The parties disagree on whether that computer was purchased primarily for Ms Vafa's use (as claimed by A/Prof Holdsworth) or exclusively for her use (as claimed by Ms Vafa).
2. Shortly after Ms Vafa's return from Iran in October 2017, Dr Sharafutainova requested Ms Vafa's permission to use the Alienware computer. Ms Vafa agreed. On 20 October 2017, Dr Sharafutainova went to use the computer at the agreed time and found that Ms Vafa was still logged in. Dr Sharafutainova sent Ms Vafa an email stating that if she did not hear from her in five minutes, she would proceed to use the computer. Later that day, Dr Sharafutainova again emailed Ms Vafa stating that she had decided against using the computer because she was concerned that, as Ms Vafa was still logged on, her work might be lost.
3. In an email in reply copied to A/Prof Holdsworth, Ms Vafa wrote that she had left the computer free for Dr Sharafutainova to use.
4. In an email sent the following day to both A/Prof Holdsworth and Dr Sharafutainova, Ms Vafa suggested that a protocol be established for users to log off at the end of a session so that "we can be sure of not losing data inadvertently".

Gloria Jean's meeting

1. On 30 October 2017, Ms Vafa emailed A/Prof Holdsworth and Dr Sharafutainova and suggested they meet.
2. In an email in reply, Dr Sharafutainova agreed and asked Ms Vafa to provide "discussion topics in advance". On the other hand, A/Prof Holdsworth replied "I do not think this is a good idea and my answer is no". When Ms Vafa approached him a second time and said, "we are a small group and should all get along", A/Prof Holdsworth acquiesced and then encouraged Dr Sharafutainova to meet with Ms Vafa, saying "Elham wants to apologise. Let's go and listen to her … Let's give her a chance". Dr Sharafutainova said that she understood from that comment that A/Prof Holdsworth meant that Ms Vafa wanted to apologise for her prolonged absence and the lack of progress with her study.
3. On 31 October 2017, Dr Sharafutainova, A/Prof Holdsworth and Ms Vafa met at the Gloria Jean's coffee shop located on the University campus. While there are conflicting accounts, it is agreed that the meeting started well but soon became heated.
4. Dr Sharafutainova and A/Prof Holdsworth claim that at the start of the meeting, Ms Vafa praised A/Prof Holdsworth and said he was a "wonderful and supportive supervisor". Ms Vafa denies praising A/Prof Holdsworth and said she merely thanked A/Prof Holdsworth for purchasing the Alienware computer.
5. According to Dr Sharafutainova and A/Prof Holdsworth, the meeting deteriorated when Ms Vafa said that she should be given exclusive use of the Alienware computer to complete her research. Ms Vafa disputes that claim. She says that she had simply requested that she be given priority as her need was greater than the five other people using the computer.

Dr Sharafutainova's account of the Gloria Jean's meeting

1. Dr Sharafutainova said that during the meeting Ms Vafa became aggressive and: 1. was "pointing [her finger] on me saying 'You! Who ask you to help [on the coding on her project]?'", to which Dr Sharafutainova responded "John ask to help"; 2. said that Dr Sharafutainova had not supported her or contributed to her research; 3. said that "too many people" were being acknowledged in a paper she had co-authored; 4. said she was offended that Dr Sharafutainova had not greeted her when she returned from Iran in October 2017; 5. said that Dr Sharafutainova had refused to allow her to use PG104.
2. Dr Sharafutainova said: 1. she could not recall having refused Ms Vafa permission to use the laboratory she managed but, if she had, it would have been because that she was required to supervise student practical sessions or because the laboratory was unavailable for some other reason; 2. she was "really shocked" by Ms Vafa's allegations and aggressive tone. She had never observed Ms Vafa behaving like that before. In her opinion, Ms Vafa had previously always been polite and softly spoken.
3. Dr Sharafutainova said that she was upset and shocked and did not respond: "[B]ecause it was aggression on me. I feel blackmailed and it was aggression towards me. I was crying after this, I had nerve break after this just because I don't cry on people and I hard working person, doesn't mean I don't feel something inside. It was very aggressive, because it was very unusual behavior of Elham at the time." (Transcript 27/5/21, Disc 3, p 45)
4. According to Dr Sharafutainova, Ms Vafa appeared to be threatening her about an email she had sent to a student, Mr Levi Tegg. A/Prof Holdsworth then said, "that's enough", they stood up and left and were pursued by Ms Vafa.

A/Prof Holdsworth's account of the Gloria Jean's meeting

1. A/Prof Holdsworth's account of the meeting is broadly consistent with that given by Dr Sharafutainova. He described Ms Vafa as being "agitated". He said the meeting started well with Ms Vafa saying that he was "very kind, very nice", and then Ms Vafa proceeded to "rip into" Dr Sharafutainova, accusing her of "not helping her, not doing things for her" (Transcript 26/5/21, Disc 3, p 8). This "went on and on and on", Dr Sharafutainova was in tears and he said, "Let's go". He said as they walked up two flights of stairs they were followed by Ms Vafa who continued to "verbally attack" Dr Sharafutainova. He said he then turned to Ms Vafa and said "Stop! Enough!"
2. A/Prof Holdsworth said that during the meeting Ms Vafa accused Dr Sharafutainova of not supporting her by not helping with her confirmation documentation, not packing the optics equipment to take to Ireland and interfering with her use of optics modelling software to complete her research.

Ms Vafa's account of the Gloria Jean's meeting

1. Ms Vafa disagreed with parts of the account of the meeting given by A/Prof Holdsworth and Dr Sharafutainova. Ms Vafa: 1. claimed that throughout the meeting she was calm and respectful; 2. denied being aggressive, using an aggressive tone or pointing her finger at Dr Sharafutainova. She said she had no reason to be aggressive as she had removed Dr Sharafutainova from her supervisory team in May 2017; 3. claimed because of her "disability" (having a prosthetic palate) she was unable to shout as alleged; 4. agreed that the meeting ended when A/Prof Holdsworth said, "that's enough" and he then left the meeting with Dr Sharafutainova; 5. claimed A/Prof Holdsworth and Dr Sharafutainova were aggressive towards her and that after they left she had a panic attack.

The Tegg email

1. On 19 October 2017, Dr Sharafutainova sent an email to student, Mr Levi Tegg, (the Tegg email) and copied it to A/Prof Holdsworth: "Hi Levi Thank you for the support really, all data you make to be able through MATLAB is very thoughtful. Someone who we must not name should be thankful for any analyzing data instrument codes that we do work on [smiley face]. (emphasis added) …"
2. Mr Tegg replied: "I've found some time to work on the Matlab script some more. This afternoon I was thinking I would implement shaded error bar/uncertainty regions. I understand that things have changed now that Elham is back, but if it's something you'd still like help with, would It be possible for you to send me your copy of the most recent version of the Matlab script to work on? …"
3. All parties agree that the Tegg email was discussed at the meeting. According to Dr Sharafutainova, Ms Vafa raised the email in an attempt to "blackmail" her and said she would show it to the head of school. Ms Vafa, on the other hand, said that she suggested to Dr Sharafutainova that they show the email to the head of school after Dr Sharafutainova criticised her for having read the email.
4. Following the meeting, Dr Sharafutainova emailed colleague, Dr Xiajing Zhou alleging that Ms Vafa had attempted to blackmail her: "As you asked, below is my email to Levi Tegg that accidentally got to John Holdsworth and then to Elham. Today, on a meeting between three of us, John H, Elham and myself, Elham revealed a knowledge, of the email. I told that I am sorry that email got to her but it was a work related conversation. Then, in my opinion, she kind of tried to blackmail me saying that she could go to the Head of School with that email. I am not going to communicate with her anymore. If she Is going to continue a work on the breast scanner, use my Tracepro and matlab codes and/or approach to investigate the scanner performance in her research in her research than I think I am entitled to be in a respective paper. Might be I am wrong. …"
5. In these proceedings, when asked what she understood Ms Vafa's concern to have been with the Tegg email, Dr Sharafutainova said it was her impolite description of Ms Vafa as "someone who we must not name".
6. In oral evidence, A/Prof Holdsworth gave this explanation about the significance of the Tegg email: "In her prolonged absence, Dr. Sharafutainova and Mr. Levi Tegg, who had previously done a project on the scanner, worked to develop an automated program. If you like, a macro script that would run the model of Ms. Vafa basically 24-7. With changes to provide appropriate output of that. That was running. That work had been done by Levi Tegg out of the goodness of his heart, out of interest, and under the guidance of Gialiya. That work was conveyed to Ms. Vafa as soon as it was complete. If you like in my other email where I said we've got interesting results to discuss, those were the results that needed discussion." (Transcript, 26/5/21, disc 3, p 11)

After the Gloria Jean's meeting

1. In an email sent to A/Prof Holdsworth on 1 November 2017, Ms Vafa wrote: "I would like to say thank you for making it possible to have the meeting today. Although my doctor realised I had a panic attack and prescribed me medicine due to tension and difficulty to breathe after the meeting, but I'm happy that I can continue my project in peace from now on hopefully. I'm just wondering if you want me to arrange a Skype meeting with other supervisors or would you like to do it yourself? I also would like to appreciate your consideration on providing me with a full-time PC and extra tracePRO key. …"
2. A/Prof Holdsworth claims that he saw the Gloria Jean's meeting as the "last straw" and after that meeting he decided he could no longer act as Ms Vafa's supervisor: "Following that event, there was no chance, absolutely no chance of Dr. Sharafutainova and Ms. Vafa working together. In one stroke, Ms. Vafa had removed from the research team or she shattered the research team. Removed the expertise on the trace probe modeling. With those actions by Ms. Vafa, I could no longer supervise her Ph.D. " (Transcript 26/5/21, disc 3, pp 8, 9)
3. On 1 November 2017, A/Prof Holdsworth emailed Assistant Director-Research and Training, Professor Frances Martin, Dr Zhou and Deputy Head of MaPS, A/Prof Hogan: "I need help with this student. Her focus on her work is minimal. Really minimal. Her focus on university linkages for her benefit is high. Her manipulation and sense of entitlement are breathtaking. The last straw is not respecting the intellectual support that she has been given and in essence, destroying any possible cohesion in my research group while artfully manipulating the situation to her being the victim. I am over it. My health and well-being have suffered enough. I have no confidence in her abilities to achieve in her PhD studies without the support of me and my colleagues who she has comprehensively devalued and hurt. I have had no recent correspondence with her international co-supervisors. They have not contacted with me about [Elham] nor any aspect of possible university linkage development in the last three months. …"

Progress reports

1. The University required PhD candidates and their supervisors to submit pro forma progress reports twice a year. The supervisor(s) was required to complete one section of the report, the candidate another. Four reports in relation to Ms Vafa were tendered in these proceedings: the 2015, 2016 and 2017 annual progress reports and the 2016 and 2017 mid-year progress reports.
2. The report required the supervisor and the candidate to separately answer a series of questions about the candidate's progress with their PhD. These included a rating of the candidate's progress, the target date for submission of the thesis, and, an estimate of the percentage of the thesis submitted for review. The first negative comment made by A/Prof Holdsworth and Ms Vafa about each other appears in the 2017 annual progress report, which was submitted by A/Prof Holdsworth on 20 November 2017.

2015 Annual progress report

1. In that report Ms Vafa: 1. rated her overall progress as "good"; 2. reported that on average she discussed her research project with her supervisors fortnightly by a number of means, including email, phone, face-to-face and Skype; 3. stated she was satisfied with the contact she had with, each of her supervisors; 4. reported that the feedback she received met her expectation: it was "timely, clear and useful".
2. A/Prof Holdsworth in answer to the question "Does this candidate meet their targets for 2015?", wrote "Partially". Under the heading "Progress Rating" he wrote: "The overarching issue has been her health status and engaging with affordable health assessment as well as the prosthetic palette broke requiring urgent attention before a replacement could be made. The cost involved '$7000' meant it was cheaper to have this done in her home country than in Australia and I set a program of work in literature review and allowed her to stay in Iran to have the palette made. She is due back 19 January. She has engaged in debate with the university about the state of her international student health cover and this has been a distraction to her studies as well."

2016 mid-year progress report

1. In that report Ms Vafa: 1. rated her overall progress as "good"; 2. stated that "I really appreciate my supervisors and my colleague as they help me in the way of getting close to success all the time."
2. In answer to the question "Are there any other barriers not identified elsewhere that affect your progress?", Ms Vafa answered "Yes": "My insurance problem which has not been resolved by the university yet. Students need better equipment at the office to be able to work there e.g. a ventilation system which is why I do most of my work from home and on campus."
3. In that report A/Prof Holdsworth: 1. stated that Ms Vafa met her targets for 2016; 2. rated Ms Vafa's overall progress as "good"; 3. stated that he discussed the project with Ms Vafa on a weekly basis, he believed the feedback he provided met Ms Vafa's expectations; 4. described his interaction with Ms Vafa as "productive".
4. In answer to the question "Are there any barriers that affect Ms Vafa's progress?", he answered "Yes, health insurance issues."

2016 Annual Progress Report

1. In that report Ms Vafa: 1. rated her overall progress as good; 2. stated that she discussed her research project with her supervisors weekly; 3. stated that she was satisfied with the contact she had with her supervisors; 4. stated that the feedback met her expectations and that she was satisfied with the general supervisory guidance and advice; 5. wrote "no" in answer to the question "Are there any other barriers not identified elsewhere that affect your progress?".
2. In that report A/Prof Holdsworth: 1. stated that Ms Vafa had met her targets for 2016 according to the plan of work they had developed; 2. estimated that Ms Vafa had provided 25% of thesis for review; 3. rated Ms Vafa's overall progress as "good"; 4. answered "no" to the question "Are there any barriers that affect Ms Vafa's progress?"; 5. stated that he had discussed Ms Vafa's research with her on a weekly basis, that he was satisfied with the contact he had with Ms Vafa, in his view the feedback met Ms Vafa's expectations and their interactions were productive.

2017 mid-year progress report

1. Ms Vafa, A/Prof Holdsworth and Professor Andersson-Engels met on 26 May 2017 to discuss the progress of Ms Vafa's thesis.
2. In the report apparently submitted after that meeting, Ms Vafa: 1. wrote "partially", in answer to the question, "have you met your targets for 2017 according to the workplan developed by your supervisor?": "I did my confirmation presentation successfully with many good results in October 2015. As per my discussion with panel members, I needed to be provided with a computer capable of doing the optical modelling in my work. The previous computer at the University could not handle my work and therefore it was broken. The IT service at UON could not recognize the problem (broken SSD drive) with our previous PC which this matter delayed my work for about six months. I tried to do my best to keep working with the limited available resources that we had but it was a very tough situation for me. After my confirmation, it took about six months to have access to a suitable computer system for my work although it is not always working properly. My trip to Ireland planned by the University took some time to be arranged due to funding issues at UON which made my situation very stressful. The setup delivery to Ireland for doing a part of my work was delayed by the shipping service at the University of Newcastle by one month and when it arrived, a part of the system was broken due to unsuitable packing stuff provided by UON for such an important system. My supervisor was away for a while and during that period, I did not receive a helpful assistant by my co-supervisor at UON." 1. stated that she had provided her supervisors and received feedback on 25% of her thesis; 2. stated that she discussed her thesis fortnightly with her supervisors; 3. rated her overall progress as "good"; 4. wrote "yes" in answer to the question, "Are there any other barriers, not identified elsewhere, that affect your progress?": "Since my co-supervisor at UON [Dr Sharafutainova] has not had great cooperation in my PhD work so far, I would like to have only two supervisors until I can find another qualified person for the position of my second co-supervisor." "My PhD was supposed to be a joint program between Lund University and UON. Since the plan has changed due to the delayed response by UON, I ask the UON to follow up the progress for my double degree to diminish the stress from me. My external supervisor has moved to Ireland and the other option would be to double degree with UCC." 1. wrote "yes" in answer to the question "Are you satisfied with your principal supervisor?"; 2. wrote "no" in answer to the question "Are you satisfied with the contact you had with your co-supervisor?", and gave these reasons: "I have not received any helpful assistance from my co-supervisor at UON so far. Therefore I would like to change my supervisory team while we are all still working together and will collaborate as much as possible."
3. In that report A/Prof Holdsworth: 1. stated that Ms Vafa "partially met" her targets for 2017 according to the plan of work they had developed: "Computer issues resulted in 5 months delay in modelling Delay in transport of goods coming to Ireland." 1. estimated that Ms Vafa had submitted and he had provided feedback on approximately 25% of her thesis; 2. rated Ms Vafa's overall progress as "good"; 3. answered "no" to the question, "Are there any barriers that affect this candidate's progress?".

2017 annual progress report

1. In that report, Ms Vafa: 1. wrote "partially", in answer to the question, "have you met your targets for 2017 according to the workplan developed by your supervisor?", explaining: "I have not been provided by the necessary equipment need to do the part of the PhD, though I believe based on my work results that I have done a perfect job for my PhD project. I had already informed my principal supervisor as well as other supervisors regarding all the issues. I also had informed UON about these issues and all problems in my previous progress report though in vein." 1. in answer to the question "are unmet resources needs … affecting the progress of your study", wrote: "The necessary equipment in the lab for improving the scanner has not yet provided. Based on the principal supervisor comment in the last progress report, the finding for purchasing the mirrors was secured and every thing was in place. I would see that nothing is in place as there is no clue why the supervisor has not yet provided the mirrors. [T]he PC suitable for doing the simulations was provided in late July 2017 and I had a full access from Nov 2017." 1. estimated that she had provided about 50% of her thesis to her supervisors for review and received feedback on approximately 25% of her thesis; 2. rated her overall progress as "good"; 3. wrote "yes" in answer to the question "Are there any other barriers not identified elsewhere that affect your progress?": "1. I changed my supervisory team though my principal supervisor was strongly against it and since then I have not had the local support. I removed Dr Sharafutainova from the supervisory team because I have not received any collaboration with that person as I reported in my previous progress report. 2. My previous co-supervisor have had a very aggressive…behaviour since she was removed from the team and trying to send some emails to the other people at the department to say bad words about me. She mentions the reason that she is not happy that I removed her from the supervisory team. 3. My PhD was supposed to be a joint program between Lund University in Sweden and UON. Since the plan has changed due to the delayed response by UON, I ask the UON to follow up the process for my double degree to diminish the stress from me. My external co-supervisor has moved to Ireland and the other option would be my double degree with UCC. None of the progress has been followed up by may principal supervisor. 4. My principal supervisor have had some personal issues with me and have not been very in supportive since I removed Galiya from the team, his reason for keeping Galiya in the supervisory team were not reasonable at all. 5.based on the decision by ADR at UON I will find another supervisor. Therefore I will keep in contact with professors who are qualified for supervisor and do not leave the students alone on half of the way." 1. wrote "no" in answer to the question, "Are you satisfied with the contact you have had with your principal supervisor?"; 2. wrote "yes" in answer to the question, "Are you satisfied with the contact you have with your co-supervisors?".
2. In that report A/Prof Holdsworth: 1. stated that Ms Vafa had partially met her targets for 2017: "Optical performance computation had not been done. Prepared journal article on scanner had not been done. Prepare for Ireland visit was done poorly. Key equipment and components were left out of the box to be shipped to Ireland. The control computer with software could not be found. Documentation was poor. … Ms Vafa has not generated modelling output from July 31 to 16 August 2017. She has not presented any draft work developed during that time." 1. estimated that Ms Vafa had provided and that he had provided feedback on 15% of her thesis (in the previous reports A/Prof Holdsworth estimated that Ms Vafa had submitted 25% of her thesis); 2. rated Ms Vafa's progress as "poor": "I have supported this candidate mightily. I've sent her to Ireland for a 3-month period, Germany and Adelaide for conferences. She did use her funds towards the Adelaide trip and also Germany as well … but the additional costs were born by me with the contribution from her co-supervisor. I have purchased a sophisticated computer for her work. It required that Elham focus ON her work, not on peripheral extraneous, distancing events, factors or imagined "promises". 1. wrote "yes" in answer to the question, "Are there any barriers that affect this candidate's progress?": "As a result of failure to focus on work output expectations of assistance beyond any reasonable norms: a breathtaking sense of entitlement: and a deliberate act in which she shattered any possibility of collaboratively within my research group, disrespecting my research colleague and me, I am forced to remove my supervision of Elham. In my opinion that she is better off in Lund Sweden which is where she wants to be." 1. wrote "no" in answer to the question "Are your interactions with the candidate productive?": "Elham has decided to blame others for her inadequacies and has verbally attacked and disrespected by research colleagues in front of me at a meeting Elham wanted and had schemed to organise. She did virtually no work between end of July and mid-October. As a result of her actions I have withdrawn my supervision."

A/Prof Holdsworth's response to the questions about the final progress report

1. A/Prof Holdsworth was cross-examined about the reason he gave Ms Vafa a negative assessment in the final 2017 progress report, when he had previously rated her progress as "good".
2. Commenting on the rating of "good" he gave in mid-year 2017 report A/Prof Holdsworth said: "… At that meeting [26 May 2017] with Professor Andersson Engels Ms. Vafa, and I, I indicated that the computer that had an issue that Ms. Vafa had not followed up with IT. I indicated that she could have done more. I got suss back rather than any acknowledgement of yes, there's a problem that I need solved for my work. I will follow that up with IT. I got back a statement so you want me to be a computer science engineer? Really, it's inappropriate. Now, I fully acknowledge that I have not applied those Section A, Section B, section C protocols with Ms. Vafa. It was my practice at this time to involve Ms. Vafa with Section B. I found myself unable to be as forthright as was needed. As a result, these are more glowing, shall we say, than they could otherwise have been." (Transcript 26/5/21, Disc 3, p 17)
3. A/Prof Holdsworth described Ms Vafa as a person "[Who] would not take negative feedback. It's always someone else's problem. Someone else's fault." (Transcript 26/5/21, Disc 3, p 18)
4. In answer to the allegation that in the 2017 annual progress report he attempted to portray Ms Vafa negatively, A/Prof Holdsworth replied: "It does reflect the fact that she spent 10 weeks in Iran with no output. It does reflect the fact that when she came back, she was disgruntled with access to equipment. Did not establish a booking list for access to the equipment. When challenged about that, advised in writing that Gialiya could use it, that Ms. Vafa was going to take another day off to pay medical bills. She had not addressed her health... I beg your pardon, she had refitted her palate at a dentist in Iran and not come back. She had then manipulated the coffee meeting, attacked Dr. Sharafutainova verbally at that meeting. Removed all possibility of a cohesive research group and effectively ended any possibility of me being able to supervise Ms. Vafa." (Transcript 26/5/21, Disc 3, p 19)
5. A/Prof Holdsworth denied that the statement he made in the 2017 annual progress report that Ms Vafa had a "breathtaking sense of entitlement" and that in his opinion she is "better off in Lund, Sweden, which is where she wants to be" was malicious: "No. Ms. Vafa returned from Iran wanting to re-establish the link with Lund University for the purpose of her own health benefits, not for any research area. It's a dishonest manipulation of inter-university linkage for her own personal benefit." (Transcript 26/5/21, Disc 3, p 20)

The informal complaint

1. A significant issue in these proceedings is when A/Prof Holdsworth first became aware that Ms Vafa had informed the University that he had sexually harassed her.
2. In an affidavit dated 27 October 2020 (Ms Vafa's first affidavit), Ms Vafa stated that "in or about November 2017" she made "an informal complaint" to the University about the "sexually harassing behaviour of A/Prof Holdsworth". In cross-examination, when asked why she had failed to mention that complaint in her email sent 20 November 2017 to Professor Martin and copied to A/Prof Hogan, Ms Vafa said that "University policy" prevented her from disclosing her complaint to another member of staff (Transcript 25/5/21, Disc 1, pp 17, 18).
3. In re-examination, Ms Vafa identified for the first time the date she made the informal complaint to Professor Martin on 13 November 2017. She said at a meeting on that day with Professor Martin she raised A/Prof Holdsworth's "poor supervision" and "inappropriate behaviour". Ms Vafa claimed that she showed Professor Martin her Facebook which showed A/Prof Holdsworth made video calls and sent her "videos about terrorism". (Transcript 25/5/21, Disc 2, p 2).
4. A/Prof Holdsworth claims that he first learnt that Ms Vafa had complained about him on 6 December 2017 when informed by the University.

The formal complaint

1. In an email sent 11 December 2017 to Ms Emma Mosmann of the University's Assurance Services unit (the formal complaint), Ms Vafa made a series of allegations about A/Prof Holdsworth and Dr Sharafutainova.

A/Prof Holdsworth: sexual harassment allegation

1. The complaint in respect of A/Prof Holdsworth was in two parts: allegations of harassment, abusive and threatening behaviour and allegations concerning the supervision and support provided by A/Prof Holdsworth. With respect to the former, Ms Vafa alleged that A/Prof Holdsworth : 1. during their weekly meetings would frequently touch her on the shoulders, back or hands; 2. would regularly touch and hold his hands on her back; 3. at the 2016 Christmas party in the Physics building, rubbed her back on a number occasions; 4. on multiple occasions, hugged her tightly and kissed her on the cheek without her permission; 5. on various occasions, would enter her office from behind in a 'sneaky manner' and alert her to his presence by putting his hand on her shoulder; 6. in late-2016 and early-2017, suggested, and was insistent upon, sharing accommodation with her for the duration of their research trip to Ireland; 7. in Ireland, shared photos on Facebook of her without her permission, and shared videos and communicated with her over Facebook Messenger, which she did not consider appropriate.

Complaint about A/Prof Holdsworth: inadequate support and supervision allegations

1. Ms Vafa alleged that A/Professor Holdsworth: 1. had promised that she would be awarded a dual degree by Lund University Sweden and the University; 2. on several occasions in 2016 and once in 2017, had poked her hard in the arm with his finger causing her embarrassment and physical discomfort; 3. placed her under duress to include Dr Sharafutainova as a supervisor for her PhD and later made threats towards her when she later sought to remove Dr Sharafutainova from the supervisory team; 4. forced her to include the name of one of his students in an academic paper in circumstances where she had not used that student's work; 5. threatened her with the cancellation of her PhD candidacy when she sought to clarify her PhD plan and promises that were unfulfilled; 6. unreasonably ended his supervisory relationship with her in circumstances where he had no cause to and largely because she had removed Dr Sharafutainova as supervisor; 7. in meetings to discuss his decision to remove himself as supervisor, shouted at her and treated her unfairly and caused other staff members to treat her unfairly; and 8. unfairly and dishonestly disparaged her to prospective supervisors, causing them not to take her on as a PhD student.

Complaint about Dr Sharafutainova

1. Ms Vafa alleged: 1. Dr Sharafutainova's communication with her was "disrespectful/abusive"; 2. that during the Gloria Jean's meeting, Dr Sharafutainova behaved in an aggressive manner towards her; 3. the reason she removed Dr Sharafutainova as her supervisor was because of her "bad attitude and no helpful collaboration with her thesis".

Pinnacle Investigation

1. The University engaged external consultants, Pinnacle Integrity, to investigate the formal complaint. In the course of that investigation, Pinnacle interviewed Ms Vafa, A/Prof Holdsworth, Dr Sharafutainova, A/Prof Hogan, Professor Martin, Dr Xiajing Zhou and Dr Saadallah Ramadam.
2. Records of those interviews (if indeed they were made) were not produced in these proceedings. Neither Ms Vafa nor A/Prof Holdsworth had seen a copy of that report until it was produced by the University in answer to a summons issued at the request of Ms Vafa.
3. Pinnacle found: 1. there was no evidence to support Ms Vafa's allegation that Dr Sharafutainova has engaged in any kind of misconduct. Those allegations were unsupported and lacked substance; 2. all but one of allegations about A/Prof Holdsworth were not proven. The proven allegation was that on several occasions A/Prof Holdsworth had poked Ms Vafa in the arm; 3. A/Prof Holdsworth's proven/admitted conduct did not amount to sexual harassment because it was not of a sexual nature.
4. Nonetheless, Pinnacle was critical of some aspects of A/Prof Holdsworth's conduct. Among other things, Pinnacle stated that it could be "considered as over-familiar and has the potential to cause discomfort" (greeting and farewelling Ms Vafa with a hug and a kiss) or demonstrated a significant lack of judgment (suggesting that he and Ms Vafa share accommodation in Ireland).

Assessment of credit: principles

1. In Campbell v Campbell [2015] NSWSC 784 (Campbell) Sackar J at [73]-[79] summarised the key principles which apply to the assessment of the credit of a witness: 1. where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance; 2. the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation; 3. in cases involving events which occurred long before the litigation, a court usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine. (Citations removed)
2. In Campbell at [75], Sackar J referred to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431: "A witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
3. In in an oft-quoted passage, McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 315 at 318, discussed the reliability of human memory: "[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
4. Commenting on the fallibility of human memory, Leeming JA in Nominal Defendant v Smith [2015] NSWCA 339 at [82] said: "Although to some it may seem counterintuitive, I see no real difference between Ms Callister wrongly but genuinely believing that she could not have missed the black vehicle, and Mr Smith wrongly but genuinely believing that he did see the black vehicle. That is the nature of human memory. Writing extra judicially (P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655) Justice McClellan has observed (at 664 and 665) that memories are unstable and malleable and vulnerable to suggestion. I do not regard that as controversial. Nor do I read his Honour as regarding it as controversial. It is supported not merely by one's ordinary experience but also by a body of psychological evidence." (Citations removed)

Sexual harassment complaint: Statutory framework and principles

1. Section 23E(1) of the AD Act makes it unlawful for a member of staff of an educational institution to sexually harass a student at the institution.
2. The AD Act defines "sexual harassment" to mean: 22A Meaning of "Sexual Harassment" For the purposes of this Part, a person sexually harasses another person if-- (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
3. In a recent decision, the Court of Appeal (Bell P, Payne JA, McCallum JA) considered the construction and application of ss 22A and 22B of the AD Act: Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 14 (Yelda). (Section 22B of the AD Act makes it unlawful for an employer to sexually harass an employee.) The Court of Appeal held: 1. Whether conduct amounts to "other unwelcome conduct of a sexual nature" within the meaning of s 22A(b) of the AD Act is a question of fact having two parts ([34], [81]-[82] (Bell P and Payne JA), [125] (McCallum JA)): 1. whether the conduct is "unwelcome", which must be determined by reference only to the complainant's state of mind; 2. whether the conduct is "conduct of a sexual nature" is a question of fact, ascertained objectively.

Issues to be determined

1. Two key issues must be determined: 1. whether the particularised conduct alleged by Ms Vafa occurred, and 2. whether any admitted or proven conduct amounts to sexual harassment within the meaning of the AD Act.
2. It falls to Ms Vafa to establish the facts alleged on the balance of probabilities.
3. Claims of sexual harassment are often cases of word against word. There is little independent or contemporaneous evidence to corroborate the respective accounts given by Ms Vafa and A/Prof Holdsworth. Nonetheless, there is broad agreement about several factual issues, including that: 1. on occasion, in greeting and farewell, A/Prof Holdsworth hugged and kissed Ms Vafa on each cheek; 2. on occasion, A/Prof Holdsworth touched Ms Vafa's back and upper arms; 3. on occasion, A/Prof Holdsworth poked Ms Vafa on the upper arms; 4. A/Prof Holdsworth suggested to Ms Vafa that they share accommodation during the study trip to Ireland; 5. before Ms Vafa's return to Australia in October 2017, A/Prof Holdsworth had not raised with Ms Vafa concerns about her progress with her PhD.
4. In addition, while there are some differences in their respective accounts, it is agreed that the Gloria Jean's meeting became heated and emotionally charged. Dr Sharafutainova was left shell-shocked and in tears; Ms Vafa consulted a doctor and was told she had had a panic attack; A/Prof Holdsworth saw it as the "last straw" and the following day reported to Professor Martin that he was "over it", "my health and well-being have suffered enough".
5. Nonetheless, there are several disputed facts issues which are central to the determination of the complaint. In assessing the evidence about those issues, I am mindful of the following considerations.
6. First, neither A/Prof Holdsworth nor Ms Vafa is independent. Each has a motive to lie. A finding that A/Prof Holdsworth sexually harassed Ms Vafa is likely to have a devastating effect on his reputation and career. Equally, if her claims are true, a finding that he did not do so is likely to have an adverse effect on Ms Vafa.
7. Second, the events the subject of these proceedings occurred between three to five years ago. As observed by McLelland CJ in Eq (as his Honour then was) in Watson v Foxman human memory is fallible and, as a general rule, "the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene". Not only do memories fade with time, so too may particular perceptions or impressions of events become accepted as fact.
8. Third, since they occurred, Ms Vafa and A/Prof Holdsworth have each given accounts about the disputed events: to the University, to Pinnacle, to the Board, to their lawyers and, possibly, family and friends. It is well-recognised that the telling and re-telling of events has the potential to distort memory: Longman v R (1989) 89 ALR 161 at 182 per McHugh J.
9. Fourth, for both A/Prof Holdsworth and Ms Vafa, it is apparent that these proceedings have been a stressful experience. During cross-examination each became upset from time to time. The emotive quality of the evidence has the potential to affect their capacity to "remember": Longman v R at 182 per McHugh J.
10. Fifth, the conflicting accounts given by A/Prof Holdsworth and Ms Vafa about some of the disputed events may be attributable to their different perceptions of the same event. For example, it is entirely possible that Ms Vafa perceived that A/Prof Holdsworth hugged her "tightly" and that A/Prof Holdsworth did not.
11. Sixth, English is not Ms Vafa's or Dr Sharafutainova's first language. I am satisfied that each understood the questions put to them in these proceedings. Neither party suggested otherwise. I have taken into account that some of the more colourful statements made by Ms Vafa in these proceedings, such as that she was "tortured" by A/Prof Holdsworth may be attributable to her language difficulties rather than as argued for the respondents, a propensity to exaggerate or embellish.

Credibility of witnesses

1. Each party has attacked the credibility of their opponent's witnesses.
2. The respondents argued that Ms Vafa and Dr Shirvanimoghaddam were unreliable witnesses. With respect to Ms Vafa, the respondents highlighted several examples which they contend demonstrate that her evidence was self-serving and that, on each re-telling, became more embellished, inconsistent and incredible. In addition, the respondents point to the evidence given at the request of Ms Vafa by psychologist, Ms Sarah de Vedle. Ms de Vedle undertook psychometric testing and concluded that Ms Vafa was "very much above average" in the measure of impression management and self-deception, which may indicate dishonesty.
3. Ms Vafa, on the other hand, argued that both A/Prof Holdsworth and Dr Sharafutainova were unreliable witnesses. Ms Vafa pointed to several inconsistencies between the accounts given by A/Prof Holdsworth to Pinnacle and in these proceedings. Pointing to A/Prof Holdsworth's refusal to acknowledge the significant power imbalance between himself and her, Ms Vafa contends that it should be inferred from that "absurd position" that A/Prof Holdsworth lacks judgment and self-awareness and that has coloured his evidence. With respect to Dr Sharafutainova, Ms Vafa argues that her close working relationship and acknowledged friendship with A/Prof Holdsworth, together with Dr Sharafutainova's evident antipathy towards her, has rendered her an unreliable witness.
4. Dr Sharafutainova was not an independent witness given her close working relationship and acknowledged friendship with A/Prof Holdsworth. Nonetheless, her evidence was credible and internally consistent, I accepted her to be a witness of truth.

Consideration

1. In approaching the evidence, I have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may be found to have been unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision makers, to distinguish truth from falsehood on the basis of appearances: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30]-[31]. Nevertheless, as the High Court stated in Fox v Percy at [41], demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence.
2. In assessing Ms Vafa's evidence, I have decided not to give weight, as urged by the respondents, to Ms de Vedle's opinion that psychometric testing indicated that Ms Vafa was "very much above average" in the measure of impression management and self-deception and this may indicate dishonesty. This is not because I hold concerns about Ms de Vedle's competence, veracity or impartiality. To the contrary, I found Ms de Vedle to be an exemplary expert who endeavoured to provide me with impartial evidence within her area of expertise. Rather, my decision is based on the highly prejudicial nature of that evidence and because I did not have the benefit of a contradictor. My long experience of evaluating evidence in the field of psychology and psychiatry, indicates that experts commonly disagree about the conclusions to be drawn from, and the weight to be given to the results of psychometric testing.
3. Nonetheless, I accept the argument made by the respondents that some of the evidence given by Ms Vafa in these proceedings appeared to be embellished and inherently implausible. For example, in oral evidence Ms Vafa claimed for the first time: 1. on that occasion she told A/Prof Holdsworth to stop his "inappropriate behaviour" and it made her feel uncomfortable, to which he replied he was her academic father (Transcript 24/5/21, Disc 4, p 9); 2. A/Prof Holdsworth poked her arm chest at the same time, or on the same day as he touched her back, shoulders, hand and buttocks.
4. In addition, even taking into account language difficulties and Ms Vafa's apparent anxiety when she gave evidence, her tendency to give long-winded and unresponsive answers to some questions was suggestive of a lack of candour.
5. With respect to A/Prof Holdsworth, there were several inconsistences between the evidence he gave in these proceedings and the account he purportedly gave Pinnacle. I concluded those inconsistencies were more likely to be the result of the passage of time and not a deliberate attempt to deceive. In reaching that conclusion, I consider it significant that in these proceedings and in the interview with Pinnacle, A/Prof Holdsworth made several concessions that were against his interests. In assessing his evidence, unless there was a plausible explanation for any inconsistency, I found the account A/Prof Holdsworth gave Pinnacle, being closer in time to the disputed events, was probably more reliable than that given in these proceedings.
6. Nonetheless, I accept Ms Vafa's contention that there are aspects of A/Prof Holdsworth's conduct that demonstrated a lack of insight. For example, the suggestion he made to Ms Vafa that they share accommodation in Ireland, indicated a lack of insight about how his conduct might be perceived by Ms Vafa and others. However the resolution of the competing evidence given by A/Prof Holdsworth and Ms Vafa turns largely on whether the disputed conduct occurred and not their respective views of the proper characterisation of that conduct.
7. Dr Sharafutainova was not an independent witness given her close working relationship and acknowledged friendship with A/Prof Holdsworth. Nonetheless, her evidence was credible and internally consistent, I accepted her to be a witness of truth.

Dr Shirvanimoghaddam's evidence

1. In cross-examination, Dr Shirvanimoghaddam said that Ms Vafa told him that she had complained to A/Prof Holdsworth about his conduct, and he had then threatened her by saying, "if you do so you will lose local support". When asked why he did not mention that claim in his affidavit, Dr Shirvanimoghaddam insisted that he had, pointing to paragraph [13]: "In December 2016, during a Christmas party, I personally observed that Mr Holdsworth touched Ms Vafa and rubbed her back and ran his hand down towards her buttocks. I saw that Ms Vafa moved away from Mr Holdsworth. She then approached me and said words to the effect 'Did you just see what he did?' I said words to the effect of 'You have to stop John from doing this to you and report his behaviour to the police.' Ms Vafa then repeatedly said to me words to the effect that 'I am concerned about my studies - he is my PhD supervisor and feel powerless to report him.'"
2. When it was suggested that that paragraph did not say that Ms Vafa had complained to A/Prof Holdsworth, or that A/Prof Holdsworth in turn had threatened to withdraw local support, Dr Shirvanimoghaddam disagreed.
3. Dr Shirvanimoghaddam denied speaking to Ms Vafa before preparing his affidavit or giving evidence. He said he relied on his memory of the events described in his affidavit.
4. With respect to the Christmas party, Dr Shirvanimoghaddam said he was able to remember that it was held on 16 December 2016 because the day before giving oral evidence, he came across a photograph of that party which Ms Vafa had previously shared with him on Facebook. The day before Dr Shirvanimoghaddam gave evidence, Ms Vafa gave evidence about that photograph and was asked to produce that photograph to the Tribunal, which she did.

Findings

1. Dr Shirvanimoghaddam's evidence is significant in that it is the only complaint evidence that Ms Vafa considered A/Prof Holdsworth's conduct to be unwelcome at the time, and when she told him so, A/Prof Holdsworth threatened to withdraw local support. It is also the only evidence to support Ms Vafa's claim that at the December 2016 event A/Prof Holdsworth rubbed her back towards her buttocks.
2. Dr Shirvanimoghaddam's claim that he did not speak to Ms Vafa before preparing his statement is implausible, especially given the many similarities between the content of their respective statements. His reluctance to admit any discussion of evidence with his wife strains credulity. Similarly, his claim that he came across the photograph of the 16 December 2016 party the night before the hearing independently of Ms Vafa, is difficult to accept as they were both preparing to give evidence the following day. However, does that render the balance of his evidence unreliable?
3. The respondents urge me to reject Dr Shirvanimoghaddam's evidence because, among other things, of the impassioned and highly defensive manner in which he gave his evidence.
4. That a person becomes emotional in giving evidence in legal proceedings commenced by their spouse is unremarkable. Of itself it does not demonstrate that the person is giving or has given untruthful evidence. The account Dr Shirvanimoghaddam gave in these proceedings of being told by Ms Vafa in December 2016 that she had complained to A/Prof Holdsworth who threatened to withdraw local support may be accurate. Equally, that account may be conflated with subsequent discussions with Ms Vafa about A/Prof Holdsworth. So too may Dr Shirvanimoghaddam's account of having observed A/Prof Holdsworth rubbing Ms Vafa's back towards her buttocks. Whatever the explanation, it points to the need to exercise care in accepting Dr Shirvanimoghaddam's uncorroborated evidence.

When did Associate Professor Holdsworth first learn that Ms Vafa reported that he sexually harassed her?

1. Before addressing the allegations of sexual harassment, I will address an issue of critical significance in these proceedings: whether, as alleged by Ms Vafa, throughout the period of supervision she repeatedly told A/Prof Holdsworth that his conduct was inappropriate.
2. For the following reasons, I am not satisfied on the balance of probabilities that Ms Vafa told A/Prof Holdsworth that his conduct was inappropriate. I find that A/Prof Holdsworth's first learned that Ms Vafa had alleged that he had sexually harassed her was when he was informed by the University on 6 December 2017.
3. First, Ms Vafa has given materially conflicting accounts about when she first told A/Prof Holdsworth that she had concerns about his conduct. In oral evidence, Ms Vafa claimed for the first time that on her arrival on campus on 26 August 2015, immediately after being hugged by A/Prof Holdsworth, she told him that his conduct was inappropriate: "And on that date [26 August 2015] when he hugged me tightly, I felt really uncomfortable, and I told him in long conversation, that he's in age of my father and I wanted him to stop it. And I said that I feel really uncomfortable with that. That's why I exactly remember that day, because it was awful moment for me." (Transcript 24/5/21, Disc 1, Part 4 at p 25)
4. That claim does not appear in the formal complaint, the first complaint made to the Anti-Discrimination Board, the Pinnacle report, the Second Further Amended Points of Claim (SFAPOC) or the two affidavits prepared by Ms Vafa in these proceedings. Notably, in the SFAPOC under the heading, "Complaints to A/Prof Holdsworth", Ms Vafa listed five occasions when she complained to A/Prof Holdsworth about his conduct. The meeting on 26 August 2015 is not listed. Consistent with the account given in the first affidavit, the SFAPOC lists February 2016 as the first occasion Ms Vafa raised with A/Prof Holdsworth that his conduct was inappropriate.
5. In the first complaint to the Anti-Discrimination Board (at p 35), Ms Vafa gave 27 January 2016 as the first date of feeling uncomfortable with A/Prof Holdsworth "when John hugged and kissed me, I pulled myself back and told him I did not feel comfortable".
6. Second, the email sent by A/Prof Holdsworth to Ms Vafa on Father's Day 2015 does not, as claimed by Ms Vafa, demonstrate that she said to A/Prof Holdsworth on 26 August 2015 that his conduct was inappropriate or unwelcome. In that email A/Prof Holdsworth wrote: "Re: Father's Day! Dear Elham, Thank you for the wishes. Certainly while you are here I will be like an uncle to you after work and an academic father during work and it is my pleasure to be so. I have been in strange places by myself so I know what you are doing is not easy, so far from family and the embrace of parents. For many students before you we have opened our home and our family so that they may feel supported and cared for. For my part I am delighted you are here. I should say that I don't normally greet new RHD students with a full hug, and while presumptuous of me to do that, I hope you understand it as a gesture of support following a fairly stressful 12 months (for both of us) since we did meet. Cheers John"
7. That email was sent in reply to Ms Vafa' email sent earlier that day: "Hello John, Today, I met some people in an Iranian gathering and I found that today was father's day in Australia. I would like to appreciate your help and support. You have been so kind to me as much as my father is. Have a nice time,"
8. The reference to "help and support" is apparently a reference to the practical support A/Prof Holdsworth provided to Ms Vafa after she arrived in Australia, including accompanying her to a dentist for emergency dental work.
9. In cross-examination, when it was pointed out that in the Father's Day email she had thanked A/Prof Holdsworth for his kindness "as much as my father is", Ms Vafa insisted that that email conveyed that she was uncomfortable with A/Prof Holdsworth's physical contact and in the future he should not behave inappropriately: "For example, I was saying that I didn't say in the email that he's my academic father. I said that he's like my father, which means that he shouldn't do any inappropriate behavior with his daughter, but he says that he's my academic father and uncle afterwards, after work. I don't need any uncle after work, I didn't need any academic father. So, I don't see how he could relate his inappropriate behavior, to be my academic father at the university and do whatever he wants to do with me after work, to tell that he is my uncle, my uncle never make me nervous or do something with me to feel inappropriate or unwelcome. My uncle always has stopped the behavior, at the point that he noticed I don't feel comfortable with that, rather than sending me an email to say that, he noticed that he gave me a full hug, it was not appropriate, he understood that this is not correct to do it. So, I thought maybe he's not going to repeat it again. But, he seemed that he was willing to do it repeated, repeated without caring about me, how much I was concerned about it." (Transcript, 24/5/21, Disc 3, p 10)
10. Ms Vafa said in evidence that A/Prof Holdsworth acknowledged in that email that "he should stop the inappropriate behaviour". Later, Ms Vafa said based on their conversation on 26 August 2015, A/Prof Holdsworth "totally understood the point of my email".
11. On any reading of the evidence, the inference could not be drawn that in the Father's Day email Ms Vafa was asking A/Prof Holdsworth to stop acting inappropriately or was referring to a comment she made to A/Prof Holdsworth on 26 August 2015.
12. Third, Ms Vafa has given materially conflicting accounts about how often she told A/Prof Holdsworth that his conduct was inappropriate. In oral evidence in these proceedings Ms Vafa claimed that from Day 1 she repeatedly told A/Prof Holdsworth not to touch her. That allegation is not contained in either the Formal Complaint, the Pinnacle report or the first complaint to the Anti-Discrimination Board: 1. The Formal Complaint contains a single reference to Ms Vafa complaining to A/Prof Holdsworth (at p 27): "Once when he touched me, I pulled myself back and told him I did not feel comfortable, but he said he was like my uncle looking after me" (emphasis added). 2. The Pinnacle Report records the same allegation. At p 16 Ms Vafa is recorded to have said that A/Prof Holdsworth touched her in the weekly supervision meetings and made her feel uncomfortable but "she did not know how to tell A/Prof Holdsworth to stop, or what his reaction might be. Instead, she said she would pull herself back from A/Prof Holdsworth and position herself where he could not reach her". 3. In her first complaint to the Anti-Discrimination Board, Ms Vafa wrote at p 15: "[B]ased on such a bad experience [an unrelated allegation concerning an officer of the university who Ms Vafa alleged threatened to terminate her Phd on account of the high cost of providing health insurance to cover Ms Vafa's cancer treatment] I was afraid to notify John of his harassment act, though friendly I notified him of his inappropriate conduct and my feelings on 18 November 2016 but all the time he claimed he was my 'academic father', kept touching and claimed that he was taking care of me because of my international status as I was alone in Australia under so much pressure and difficulties with no support from UoN." (Emphasis added)
13. Fourth, in these proceedings Ms Vafa alleged for the first time that when she threatened A/Prof Holdsworth to report him for his inappropriate conduct he retaliated by threatening to withdraw his support for her continued receipt of her scholarship. Ms Vafa made that allegation in her second affidavit in response to the claim made by A/Prof Holdsworth that he "successfully arranged a scholarship to enable her candidacy at the University". In her first affidavit, Ms Vafa does not claim that she threatened to report him, or that he threatened to withdraw his support because of that threat. Nor are those claims contained in the formal complaint, the first complaint made to the Anti-Discrimination Board, the Pinnacle report, or the SFAPOC.
14. Fifth, in examination-in-chief Ms Vafa claimed again for the first time that while in Ireland she said to A/Prof Holdsworth when he was poking her, "it hurts a lot and don't do that, I don't like it, please stop … I made it clear to him and told him that I would report it, which I meant to the … university, if continued" (Transcript, 24/5/21, Disc 2, p 6).
15. Sixth, the records produced in these proceedings by the University's counselling service contain no mention that Ms Vafa reported that she was concerned about A/Prof Holdsworth's alleged inappropriate conduct (however described) before she learnt that A/Prof Holdsworth had decided to cease to be her supervisor. Ms Vafa spoke to University counsellors about various matters on four occasions: 13 October 2015, 23 October 2015, 1 December 2016 and 23 November 2017. The notes of those consultations reveal that Ms Vafa reported being "distressed, disappointed and mistrusting" of the University (13 October 2015), "not trusting and experience at UON not positive for her" (1 December 2016). In addition, the records reveal that Ms Vafa reported concerns about her treatment by the University, including problems concerning health insurance, her study trip grant, the attitude of "staff in disabilities … not caring", lack of air conditioning and access to disabled toilets in the building in which she was working. The notes contain two references to A/Prof Holdsworth. The first is contained in the record of the first consultation "[Ms Vafa] feels pressure from supervisor about producing a paper to securing a grant". The second is contained in the record of the final consultation (23 November 2017), which under the heading, "presenting problems", listed seven problems, the final one being: "Elham reported that her primary supervisor would touch her on her shoulder which made her feel uncomfortable and she would try to move away. She said she asked him to stop which he did but made a comment about 'being like an uncle'."
16. In these proceedings, when asked to comment on the absence of any mention of inappropriate touching in the counselling records (apart from the record of the final consultation), Ms Vafa said she told counsellors about the inappropriate touching. Ms Vafa said that she asked the counsellors not to record those disclosures because she was fearful that University staff might look at her counselling records: "all the staff can have a look" (Transcript 27/5/21 Disc 2, p 6). Later, Ms Vafa said that she was told by the counsellors that the Vice Chancellor was contacting the manager of the counselling service and "asking some questions" (Transcript 27/5/21 Disc 2, p 9). She said that the counsellors told her: "If you don't want some information to be in the report, just let us know because except me, other people can see it." (Transcript 27/5/21 Disc 2, p 9)
17. Counsel for Ms Vafa, Ms Kumar, submitted that Ms Vafa's claim that she asked counsellors not to record her concerns about A/Prof Holdsworth should be accepted, notwithstanding her mistaken belief that University staff had access to counselling records.
18. For several reasons I am unable to accept Ms Vafa's claim that she had disclosed to counsellors that she had been inappropriately touched by A/Prof Holdsworth and instructed them not to record those disclosures. First, it is implausible that if Ms Vafa in fact believed that her counselling reports were readily accessible to University staff that she would have disclosed and permitted the counsellors to record the various recorded concerns about the University and its staff, including that she mistrustful of their actions, considered that she had been unfairly treated and found the Dean of Studies "intimidating". Second, Ms Vafa's claim does not explain the omission from the final counselling record of the more egregious instances of A/Prof Holdsworth's alleged conduct. Third, the claim that she was told by counsellors that the counselling records could be accessed by other members of staff, is inherently implausible. Fourth, her answers to questions in cross-examination about the basis for her stated belief about access to the counselling records were inconsistent and, on several occasions, unresponsive.
19. Fifth, in the affidavit prepared for these proceedings, Ms Vafa's husband made no mention of being told by Ms Vafa that she had asked A/Prof Holdsworth to stop touching her. As explained above I do not accept his claim made in oral evidence that Ms Vafa said to him that she had complained to A/Prof Holdsworth and he retaliated by threatening to withdraw local support.
20. Finally, A/Prof Holdsworth has consistently denied that Ms Vafa said or indicated to him that his conduct was inappropriate.

The allegations

1. In the SFAPOC Ms Vafa particularised 11 discrete acts by A/Prof Holdsworth, said to constitute sexual harassment as defined by s 22A of the AD Act.

Allegation 1: The hugging and kissing allegation "Tightly hugging and kissing Ms Vafa on the cheek, in his office, while alone with her: i. On or about 26 August 2015; ii. In or around January 2016; and iii. 'on other occasions'."

1. The Pinnacle report contains the following summary of A/Prof Holdsworth's response to the allegation that on "at least two occasions A/Prof Holdsworth greeted Ms Vafa by hugging her tightly, and kissing her on the cheek - without permission": "Professor Holdsworth conceded that he did hug and kiss Ms Vafa on occasion - but only as a greeting. He recalled several occasions; citing one being when Ms Vafa's parents were visiting and Professor Holdsworth and his wife took Ms Vafa and her parents out for an evening. At the beginning and the end of their social occasion, he said "the traditional Persian kiss on both cheeks was given by all people there'. Professor Holdsworth said that this was the first occasion he hugged or kissed Ms Vafa and that the cultural or personal acceptability of this was set by Ms Vafa's parents, who initiated the greeting. Professor Holdsworth said that on occasions, he also farewelled or greeted Ms Vafa with a hug - when she has departed on travels, or similarly when she has returned. He further recalled that he hugged Ms Vafa on her birthday, as did she on his when in Ireland in 2017..."
2. In these proceedings, A/Prof Holdsworth admitted that he hugged Ms Vafa on 26 August 2015 and on at least three other occasions: when she returned to Australia from Iran on 27 January 2016; in greeting and farewell in September 2016 on a trip to Hunter Valley Gardens with Ms Vafa's parents and others, hosted by A/Prof Holdsworth and his wife and others; and, on a trip to Port Stephens with Ms Vafa's mother, again in greeting and farewell. He claimed to have no specific recollection of other occasions when he kissed and hugged Ms Vafa on greeting or farewell but conceded it was possible but that it would not have been a common occurrence.
3. In these proceedings A/Prof Holdsworth said that the first embrace (26 August 2015) was spontaneous. Since he had last seen Ms Vafa they had each undergone cancer treatment. He said his own experience had left him with physical and psychological impairments. He said he felt for Ms Vafa whose travel to Australia was delayed while she underwent treatment. In addition, he said that, as Ms Vafa was alone in Australia and away from her family, he wanted to convey that she was welcome and supported. He did not tell Ms Vafa that this was the reason he embraced her.
4. A/Prof Holdsworth disagreed that his use of the term "full hug" in the Father's Day email ("I don't normally greet new RHD students with a full hug") indicated that on 26 August 2015 he gave Ms Vafa a long or tight hug. In addition, he denies kissing Ms Vafa on the cheek. Rather, he claims that on that occasion he touched Ms Vafa's cheek with his cheek. In cross-examination, he described Ms Vafa as appearing startled by the hug and "not obviously comfortable". He said he reached that conclusion because Ms Vafa "drew back a little". He agreed that Ms Vafa did not return the hug.
5. A/Prof Holdsworth claims that the first occasion he kissed Ms Vafa was on a sightseeing trip to Hunter Valley gardens when Ms Vafa's parents hugged and kissed him on each cheek which he understood to be a "traditional Persian greeting or farewell".
6. In cross-examination, when taken to the statement in the Pinnacle report attributed to him that the first occasion he "hugged or kissed Ms Vafa" was in the company of her parents, A/Prof Holdsworth denied making that statement to Pinnacle and claims that he said this was the first occasion he kissed Ms Vafa.

Findings

1. I am not satisfied that on the first two occasions A/Prof Holdsworth hugged Ms Vafa, 26 August 2015 and 27 January 2016, that he also kissed her on each cheek. In reaching that conclusion I note: 1. The Father's Day email refers to the "presumptuous hug" and makes no mention of a kiss; 2. The Pinnacle report records Ms Vafa as alleging that A/Prof Holdsworth hugged and kissed her on the cheek: in Ireland in June 2017 and in Semester 2 2016 in A/Prof Holdsworth's office. That report makes no mention of Ms Vafa alleging that A/Prof Holdsworth hugged her on 26 August 2015 or 27 January 2016. In circumstances where A/Prof Holdsworth in these proceedings readily admitted to hugging Ms Vafa on 26 August 2015 and 27 January 2016, I find the most likely explanation for the discrepancy between the comments attributed to A/Prof Holdsworth in the Pinnacle report (of first kissing and hugging Ms Vafa when she was in the presence of her parents in late 2016) and A/Prof Holdsworth's evidence in these proceedings (of first kissing Ms Vafa when she was in the presence of her parents) is an incomplete history taken, or an inaccurate record made, by Pinnacle.
2. The question of whether A/Prof Holdsworth hugged Ms Vafa "tightly" is difficult to resolve, in part because of the conflicting accounts and in part because, except in an extreme case, an assessment of whether a person has been hugged "tightly", is highly subjective.
3. It is possible that on occasion, Ms Vafa perceived that she was being hugged tightly. I am not satisfied that she was in fact hugged tightly.
4. The conduct particularised in Allegation 1 is established in part. I find that: 1. on two occasions while alone in his office with Ms Vafa, A/Prof Holdsworth hugged Ms Vafa: on her arrival in Australia on 26 August 2015) and on her return from Iran on 27 January 2016; 2. on three occasions in late-2016, on greeting and farewelling her, A/Prof Holdsworth hugged and kissed Ms Vafa on each cheek in the company of one or both of Ms Vafa's parents; 3. as admitted by A/Prof Holdsworth to a Pinnacle investigator, he hugged Ms Vafa during a surprise birthday party arranged for him in Ireland; 4. in addition, as reported to Pinnacle and conceded as possible by A/Prof Holdsworth in these proceedings, he hugged and kissed Ms Vafa on the cheek on several other occasions, such as when she departed and returned from Australia.

Does the proven conduct amount to sexual harassment?

Was the proven conduct unwelcome?

1. In Yelda, the Court of Appeal explained at [81] that the assessment of whether conduct is "unwelcome" imports a subjective test determined by reference only to the complainant's state of mind. The Court of Appeal endorsed the view expressed by Bromberg J in Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576, at [27], that "'unwelcome' simply means conduct that is disagreeable to the person to whom it was directed".
2. Accordingly, whether the conduct was "unwelcome" must be assessed only by reference to Ms Vafa's state of mind. Whether A/Prof Holdsworth knew or ought to have known that Ms Vafa considered the conduct unwelcome is irrelevant.
3. As stated above I am not satisfied that Ms Vafa told A/Prof Holdsworth or indicated to him that his conduct was unwelcome. However, that is not determinative of the question of whether Ms Vafa considered that the proven conduct to be unwelcome.
4. I accept Ms Vafa now believes that she considered A/Prof Holdsworth's embraces unwelcome. The more difficult question is whether she did so at the time. Ms Vafa now holds a poor opinion of A/Prof Holdsworth. A lot has happened since those embraces occurred. It is possible that this has coloured Ms Vafa's recollection of her reaction to past events. In addition, as admitted by Ms Vafa in these proceedings, her memory of those events is now poor.
5. A/Prof Holdsworth admits that he initiated each embrace. With respect to the first embrace, A/Prof Holdsworth described Ms Vafa as being startled and "not obviously comfortable". In addition, he agreed that she did not return the hug. That is consistent with A/Prof Holdsworth's acknowledgement in the Father's Day email that the hug was "presumptuous". I find that, at the time, Ms Vafa probably considered that embrace unwelcome.
6. The second embrace was given in largely the same circumstances, on Ms Vafa's return from overseas while she and A/Prof Holdsworth were alone in an office. Given the paucity of evidence about the circumstances surrounding that embrace, the assessment of Ms Vafa's claim that it was unwelcome is difficult. There is no evidence to suggest that the embrace was invited or solicited. Conversely, there is no evidence that Ms Vafa reacted as she did to the first embrace, that is, appeared startled and stepped back. Nonetheless, consistent with her reaction to the first embrace, I find that Ms Vafa probably considered the second embrace unwelcome.
7. With respect to the embraces given in the presence of Ms Vafa's parents and the subsequent embraces, I find that Ms Vafa probably found them to be unwelcome.

Would a reasonable person having regard to all of the circumstances have anticipated that Ms Vafa would be offended, humiliated or intimidated?

1. The words offend, humiliate and intimidate are ordinary English words. The online versions of the Macquarie Dictionary and the Oxford Dictionary, include these definitions: "Offend Macquarie Dictionary: to give offence or cause displeasure. Usage: In most contexts offend has the sense of 'cause minor displeasure or distaste'. It is in the context of racial abuse that offend takes on a stronger meaning. Oxford Dictionary: To hurt or wound the feelings or susceptibilities of; to be displeasing or disagreeable to; to vex, annoy, displease, anger; (now esp.) to excite a feeling of personal upset, resentment, annoyance, or disgust in (someone). Humiliate Macquarie Dictionary: to lower the pride or self-respect of; cause a painful loss of dignity to; mortify. Oxford Dictionary: To make low or humble in position, condition, or feeling; to humble. Intimidate Macquarie Dictionary: to make timid, or inspire with fear; overawe; cow. Oxford Dictionary: To render timid, inspire with fear; to overawe, cow; in modern use esp. to force to or deter from some action by threats or violence."
2. Ms Vafa contends that a reasonable person, having regard to all the circumstances, would have anticipated that she would be offended, humiliated or intimidated by A/Prof Holdsworth's conduct.
3. In Yelda, Bell P and Payne JA emphasised at [37] that in determining whether a reasonable person would have anticipated that a person would be offended, humiliated and intimidated by the impugned conduct, requires consideration be given to all of the circumstances.
4. The relevant circumstances in respect of the first embrace, include the facts that: 1. the embrace occurred while Ms Vafa was alone with A/Prof Holdsworth in his office; 2. at the time of their first meeting in Australia, A/Prof Holdsworth and Ms Vafa had known each other for about a year. They had met in Sweden at an academic conference. They were on friendly terms but were not friends. Their dealings until that time related to discussions about Ms Vafa undertaking a PhD at the University and the associated logistical arrangements; 3. A/Prof Holdsworth and Ms Vafa had not hugged before she arrived in Australia; 4. A/Prof Holdsworth had not discussed with Ms Vafa her views about the appropriateness of supervisors hugging students; 5. the hug was given in the context of a greeting; 6. A/Prof Holdsworth did not ask for permission to hug Ms Vafa; 7. A/Prof Holdsworth made no comments of a sexual nature, implicit or explicit; 8. A/Prof Holdsworth was twice Ms Vafa's age. When she arrived in Australia in 2015, she was 30 years of age. He was 58; 9. Ms Vafa was an international student on a student visa. She was a citizen of Iran and had studied and lived in Sweden; 10. as Ms Vafa's PhD supervisor, A/Prof Holdsworth could either give or withhold endorsement of a PhD thesis;
5. Having regard to those circumstances, the reasonable person probably would not have anticipated that Ms Vafa would be humiliated or intimidated by A/Prof Holdsworth's embrace. The reasonable person would take into account that this was not the first time they had met. In addition, the reasonable person would consider it relevant that, leaving to one side the embrace, there was no aspect of A/Prof Holdsworth's behaviour which might cause Ms Vafa to be humiliated or intimidated.
6. However, the reasonable person probably would have anticipated that Ms Vafa would be offended, in the sense of experiencing minor displeasure. The reasonable person would consider it relevant that A/Prof Holdsworth did not ask permission before initiating the embrace, had no knowledge of whether Ms Vafa was the type of person who routinely embraced others in greeting and farewell, especially one with whom she had a limited acquaintance, and whom held a position of power. The reasonable person is likely to have found the giving of the hug presumptuous, as later acknowledged by A/Prof Holdsworth.
7. For largely the same reasons, I find that the reasonable person would have anticipated that Ms Vafa would be offended by the second embrace, notwithstanding that Ms Vafa had not said to or otherwise indicated to A/Prof Holdsworth, that his conduct was unwelcome.
8. With respect to A/Prof Holdsworth's actions in hugging and kissing Ms Vafa in the company of her parents in circumstances where Ms Vafa had not said or done anything to suggest that that conduct was unwelcome, where the hug and kiss was given in the context of a greeting and farewell, where on that occasion Ms Vafa's parents had exchanged a hug and kiss with A/Prof Holdsworth and his wife, I am not satisfied that the reasonable person would have anticipated that Ms Vafa would be offended by those embraces.
9. In the absence of evidence about the circumstances in which any subsequent embraces occurred, I could not be satisfied that the reasonable person would have anticipated that Ms Vafa would be offended by those embraces.

Of a sexual nature

1. In Yelda, the Court of Appeal held: 1. context is everything in determining whether as a matter of objective fact particular conduct meets the description of "other unwelcome conduct of a sexual nature": [101]; 2. the phrase "other unwelcome conduct of a sexual nature" is a term of broad import that should not be narrowly construed: [97]; 3. the subjective intention of the alleged perpetrator to engage (or not engage) in "other unwelcome conduct of a sexual nature" is not an element of sexual harassment: [81], [96], [98].
2. The evidence does not support a finding and nor is it suggested that in embracing Ms Vafa, A/Prof Holdsworth was making a sexual advance or requesting sexual favours. The question posed is therefore, whether the proven conduct falls within paragraph (b) of the definition of sexual harassment, that is, other unwelcome conduct of a sexual nature.
3. It is not suggested, and nor do I find, that either embrace could be characterised as sexually explicit. Could, however, one or both, be characterised as sexually implicit?
4. In some parts of Australian society to greet or to farewell a person with a hug, would be considered unremarkable. In others, that would be considered highly unusual and inappropriate, especially where, as here, there is a power imbalance between the person who initiated, and the person who received, the embrace. I think it unlikely that in the tertiary sector it is commonplace practice for supervisors to greet or farewell students with a hug. In cross-examination, A/Prof Holdsworth admitted that he did not normally greet new students with a hug. (Transcript 25/5/21, Disc 2, pp 15, 16) In addition, he agreed that in the context of a "student teacher dynamic" to greet a student with hug was "inappropriate" (Transcript 25/5/21, Disc 4, p 44). Further, he agreed that he had never greeted male students with a "full hug" or kissed them on the cheek.
5. I accept that A/Prof Holdsworth intended the embrace to convey to Ms Vafa that she was welcome and supported. However, his intention is irrelevant to the proper characterisation of that conduct.
6. McCullum JA observed in Yelda at [125] that the scope of the term "conduct of a sexual nature" in the definition of "sexual harassment" in s 22(b) of the AD Act is to be understood by recognition of the "infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries". McCullum JA's comments, in my view, apply equally to other parts of Australian society including the tertiary sector.
7. A/Prof Holdsworth's conduct in embracing Ms Vafa was undoubtedly inappropriate. It was presumptuous and arguably patronising. Relevantly, it was not accompanied by any words or conduct, of a sexual nature. In my view, objectively assessed, it could not be characterised as being of a sexual nature. In reaching that conclusion, I have taken into account the power imbalance between A/Prof Holdsworth and Ms Vafa, the disparity in their ages, and the other factors highlighted by Ms Vafa as evidencing her vulnerability. Those factors might explain why Ms Vafa took no steps to stop or to complain about A/Prof Holdsworth but of themselves do not tend to support a characterisation of the hugs as being of a sexual nature.

Allegations 2 and 3: the poking and touching allegations "2. On approximately 60 occasions between October 2015 and July 2017, during weekly meetings between Ms Vafa and Associate Professor Holdsworth, Associate Professor Holdsworth: i. Repeatedly poked Ms Vafa's arm with his forefinger without her consent; and ii. Repeatedly touched Ms Vafa's back, shoulders, hand, arms and buttocks without her consent. 3. On approximately 20 occasions between October 2015 and July 2017, while Ms Vafa was performing research in a laboratory on the University's premises, Associate Professor Holdsworth touched Ms Vafa's back without her consent."

The weekly meetings

1. The meetings referred to in Allegation 2 were the meetings held usually weekly to discuss Ms Vafa's progress with her thesis (the supervision meetings). They were attended by Ms Vafa, A/Prof Holdsworth and sometimes Dr Sharafutainova. Ms Vafa estimated that Dr Sharafutainova attended about 50% of the meetings held in Australia (to April 2017). When Ms Vafa and A/Prof Holdsworth were in Ireland, Professor Andersson-Engels sometimes attended those meetings. Some of the meetings were held remotely, for example, when A/Prof Holdsworth was in Brisbane (late-2016 to April 2017) and when Ms Vafa returned to Iran for medical treatment in January 2016.
2. When held in Australia, the meetings took place in one of four locations: A/Prof Holdsworth's office, Ms Vafa's office, PG104 or PG101. Ms Vafa shared her office with four other students and from late-2016 with one other student. On her account those students were seldom there when she was working in the office.
3. In her first affidavit, Ms Vafa stated that between October 2015 and July 2017, without her consent, A/Prof Holdsworth: 1. during weekly meetings on about 60 occasions repeatedly poked her arm and chest with his finger; 2. during weekly meetings on about 60 occasions repeatedly touched her back, shoulders, hand and buttocks; 3. on about 20 occasions while she was working in the laboratory touched her back without her consent.
4. In her second affidavit Ms Vafa stated that on one occasion, while in Ireland, after being poked by A/Prof Holdsworth she said, "please don't do that, it really hurts".
5. In the formal complaint Ms Vafa stated: 1. several times in the weekly meetings A/Prof Holdsworth poked her arm "hardly with his finger" and once in Ireland; 2. whenever he was in the Optic lab, A/Prof Holdsworth "touched my back, hold his hands on my back".
6. The Pinnacle report recorded that Ms Vafa said: "(1) on several occasions in 2016 and once in 2017 (when in Ireland), A/Prof Holdsworth poked her hard in the arm with his finger causing her embarrassment and physical distress (2) in Semester 2 2015 and Semester 1 2016, when in the Optics lab, A/Prof Holdsworth would regularly touch and hold his hands on her back, causing her significant discomfort (3) because of conflict with GS, in or after Semester 1 2016 Ms Vafa requested A/Prof Holdsworth to hold weekly meetings in either his office or away from GS."
7. In the complaint to the Anti-Discrimination Board, Ms Vafa stated: 1. during the weekly meetings, between August 2015 and November 2017, "John touched me many times which made me feel uncomfortable". On those occasion he flatters me and "I noticed Gailya was not happy with it". "I tried to pull away from him so he could not reach me"; 2. in the meetings in 2016, "John several times poked my arm hardly with his finger".
8. In cross-examination, Ms Vafa said: 1. A/Prof Holdsworth probably touched her shoulder on more than 60 occasions. That estimate was based on the number of their weekly meetings; 2. when they were working together in the laboratory, A/Prof Holdsworth touched her back "all the time"; 3. "It would happen all at one day", that is, the poking in the arm and chest and touching back, shoulders, hand and buttocks.
9. In these proceedings A/Prof Holdsworth denied ever touching Ms Vafa's buttocks. In addition, A/Prof Holdsworth denied repeatedly touching Ms Vafa's back, shoulders and hands during the weekly meetings. In oral evidence he admitted: 1. while reviewing a program on a computer screen, it was his practice to use touch to guide a student's focus. With Ms Vafa he did this by placing his hand on her upper arm or shoulder while he was sitting next to her and did so "perhaps fortnightly"; 2. on at least five separate occasions he touched Ms Vafa on her back: 1. to indicate his need to pass by, on one occasion while working in a cramped laboratory in Ireland; 2. twice (on the same day) while instructing Ms Vafa in the alignment of the optical scanning rig in PG101. On each occasion he was standing immediately adjacent to Ms Vafa and placed his hand on the small of her back he accepted that this conduct had the potential to embarrass Ms Vafa (Transcript 26/5/21, Disc 1, pp 24, 25); 3. on 22 December 2016, in an attempt to comfort Ms Vafa after her mother returned to Iran he touched and rubbed the small of Ms Vafa's back. He accepted that this had the potential to offend, embarrass, or make Ms Vafa feel uncomfortable (Transcript 26/5/21, Disc 1, p 29); and 4. at an event at the University on 16 December 2016 (discussed below); 1. to poking Ms Vafa on the arm on two occasions while sitting next to Ms Vafa and looking at a computer screen, as a non-verbal rebuke.
10. The Pinnacle report records A/Prof Holdsworth as saying: 1. during weekly meetings in the context of sitting at a computer he touched Ms Vafa's arms and shoulder and sometimes her hands, the "safe zones"; 2. while in the Optics lab in Semester 2 2015 and Semester 1 2016, he "may have" touched Ms Vafa's back to indicate his need to pass and for her to make room; 3. it his practice to guide a student's focus using touch. For example, while looking at a computer screen he may get Ms Vafa's attention by placing his hand on her back and pointing with the other hand to the computer saying "look here"; 4. while sitting with Ms Vafa in front of a computer, on several occasions in 2016 and once in Ireland in 2017, he poked Ms Vafa firmly in the arm as a "wakeup call", explaining "We can all do stupid things but, when there is stuff that is completely evident, and you don't make the connection-I'll give you a poke in the arm"; 5. while working in the optics lab, a "cramped physical space" he may have touched Ms Vafa on the back indicating his need to pass and for her to make room for him.
11. In relation to the allegation that he touched Ms Vafa in the weekly meetings, the Pinnacle Report notes that, when interviewed, A/Prof Holdsworth stated that he treats Dr Sharafutainova "in the same manner". A/Prof Holdsworth told the Tribunal that he had also touched Dr Sharafutainova's hands, shoulders and arms, including when she was a PhD student under his supervision. Dr Sharafutainova was not asked to, and did not provide evidence, about being touched by A/Prof Holdsworth.
12. Ms Vafa told the Tribunal that during the weekly meetings, A/Prof Holdsworth poked her in front of Dr Sharafutainova but the touching was done from the back. In addition, she said that she recalls A/Prof Holdsworth putting his hand on Dr Sharafutainova's arm but cannot recall if it was a lengthy or a brief touch.

Findings

1. It is agreed that during face-to-face meetings while working together on a computer A/Prof Holdsworth poked Ms Vafa in the upper arm and, in addition touched Ms Vafa's back, shoulder and arms while working on computer. In addition, it is agreed that while Ms Vafa was seated at a computer, A/Prof Holdsworth placed his hand on Ms Vafa's back to enable him to pass by. In addition to the characterisation of that conduct, the key issues to be determined are: 1. how often the touching occurred; 2. whether, as claimed by Ms Vafa, during some meetings A/Prof Holdsworth poked her in the upper arms and, in addition, touched her back, shoulders, arms and hands; and 3. whether A/Prof Holdsworth touched Ms Vafa on the buttocks.
2. Ms Vafa's claim that A/Prof Holdsworth touched her on the buttocks is not mentioned in the formal complaint, the Pinnacle report and the complaint to the Anti-Discrimination Board. It is implausible that, had he done so, Ms Vafa would have omitted to mention that fact in the formal complaint, the complaint to the Anti-Discrimination Board and in interviews with Pinnacle.
3. It is equally implausible, if, as Ms Vafa claimed in oral evidence, A/Prof Holdsworth touched each of her body parts - back, shoulder, arms, hands, buttocks - during each meeting, that she would have omitted to include those allegations in earlier accounts given the University, Pinnacle and the Board. That claim is not proven.
4. With respect to the poking in the arm allegation, each party gave different accounts of the frequency of that conduct. The accounts each gave to Pinnacle, were broadly consistent and are probably a more reliable estimate than their respective account given in these proceedings. I find that on several occasions in 2016, and once in Ireland in 2017, while working on a computer A/Prof Holdsworth poked Ms Vafa firmly in the arm.
5. A/Prof Holdsworth conceded in cross-examination that, while working on a computer, he touched Ms Vafa's upper back or shoulder to guide focus "perhaps fortnightly". The Pinnacle report records much the same admission but does not mention the frequency of that touching.
6. The internal inconsistencies and differing estimates given by the parties, renders the task of making findings difficult. A further difficulty is the lack of clarity about how often A/Prof Holdsworth and Ms Vafa were working on a computer during those meetings, which appears to be when the touching occurred. In the meetings held in their respective offices, Ms Vafa and A/Prof Holdsworth were seated on opposite sides of a desk.
7. Doing the best I can on the available material I find it is more likely than not, as A/Prof Holdsworth conceded was a possibility, that approximately every second meeting, he occasionally touched Ms Vafa on her shoulder, arm, back or hand while working on a computer. Given that some meetings were held remotely, and meetings were not held while A/Prof Holdsworth and Ms Vafa were on leave, the touching probably occurred on about 30 occasions.
8. In addition, on the basis of his own admissions, I find A/Prof Holdsworth probably touched Ms Vafa on the small of her back "waist level" on three occasions: twice while standing while instructing her on the optical scanner and on 22 December 2016 when he consoled her after her mother had returned to Iran.
9. Finally, I find that on several occasions A/Prof Holdsworth touched Ms Vafa on her upper back while she was working on a computer in a laboratory to indicate to her to move her chair so he could pass by.
10. Allegations 2 and 3 are proven in part.

Unwelcome conduct

1. I find that Ms Vafa considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by the proven conduct in the sense of it causing minor displeasure.

of a sexual nature

1. In considering whether the proven conduct the subject of Allegation 2 (and all other allegations) was of a sexual nature, I have taken into account the totality of the proven conduct that occurred up to that time of that allegation.
2. In forming my assessment of whether the conduct was of a sexual nature, I accept A/Prof Holdsworth's evidence that the reason he poked Ms Vafa in the arm was to bring to her attention to something on the computer screen, including "material that had not been thought through" (Transcript 26/5/21, Disc 1, p 34).
3. However, it does not follow that because the prodding was intended to be and is capable of being characterised as a form of rebuke, it cannot also be characterised as conduct of a sexual nature. Human conduct is capable of multiple characterisations.
4. I do not understand Ms Vafa to contend that the prodding was explicitly sexual. Indeed, I note that in the formal complaint Ms Vafa did not contend that the prodding was a form of sexual harassment, but rather an example of poor supervision. However, can it be characterised as implicitly sexual in nature? The fact that the conduct was unwelcome and the reasonable person would have anticipated it would have caused Ms Vafa minor displeasure are factors relevant to, but not determinative of, whether the conduct was implicitly sexual. The prodding was not accompanied by any verbal or physical conduct which of a sexual nature. Objectively assessed, I am not satisfied that the prodding could be characterised as being of a sexual nature.

unwelcome conduct

1. I find that Ms Vafa probably considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated, or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by the proven conduct in the sense of it causing her minor displeasure.

of a sexual nature

1. Whether the proven conduct can be characterised as being of a sexual nature, turns largely on the frequency and the nature of touching and the circumstances in which it occurred.
2. The touching generally occurred while A/Prof Holdsworth and Ms Vafa were sitting or standing together looking at a computer screen. According to Ms Vafa, Dr Sharafutainova was present during about half of the face-to-face meetings held in Australia. According to Ms Vafa, the touching sometimes occurred in the presence of Dr Sharafutainova but she did seem to notice. Ms Vafa claimed that she observed A/Prof Holdsworth putting his hand on Dr Sharafutainova's arm, "but she looked comfortable with him doing so."
3. Had A/Prof Holdsworth touched her shoulders, arms, back, hands and poked her in the arm during each meeting, it would tend to suggest that she was effectively being mauled A/Prof Holdsworth. However, as stated the evidence does not support a finding that at those meetings when the touching occurred A/Prof Holdsworth touched each of those body parts and did so repeatedly. While the touching was unnecessary, it was done in the context of A/Prof Holdsworth and Ms Vafa working together on a computer. I accept A/Prof Holdsworth's evidence that it was done in the context of directing Ms Vafa's attention to something on the screen.
4. The touching of another person's body generally conveys familiarity and intimacy. While Dr Holdsworth touching was presumptuously familiar with Ms Vafa, and unwelcome to her, objectively assessed, in my view, there was nothing else from which it could be inferred to be conduct of sexual nature.

unwelcome conduct

1. I find that Ms Vafa probably considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated, or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by the proven conduct in the sense of it causing her minor displeasure.

of a sexual nature

1. For the same reasons given in relation to Allegation 2(ii) and having regard to the context in which the proven conduct occurred - after the return to Iran of Ms Vafa's mother and in the course of instructing Ms Vafa on the optical scanner - objectively assessed I am not satisfied that the proven conduct was conduct of a sexual nature.

Allegation 4: silently entering Ms V's office and touching her back "Silently entered Ms Vafa's office on the University's premises and alerted Ms Vafa to his presence in her office by placing his hands on her shoulders, on approximately 10 occasions between October 2015 and April 2017"

1. In each of the offices used by Ms Vafa while working in Australia, she was seated with her back to the door.
2. In these proceedings, A/Prof Holdsworth claimed that whenever he entered Ms Vafa's office he announced his arrival. He pointed out that between October 2015 and April 2017 Ms Vafa shared an office with other students.
3. In contrast, the Pinnacle report records A/Prof Holdsworth as saying that in the summer of 2016/2017 when, at her request, Ms Vafa moved to an open-plan air-conditioned office, he may have placed his hand on her shoulder to let her know he was there. He denied, however, that it was his practice to deliberately sneak up on Ms Vafa. In cross-examination A/Prof Holdsworth said he could not recall making that comment to Pinnacle.
4. Ms Vafa, on the other hand, said that A/Prof Holdsworth did not announce his arrival in her office and his practice was to place his hands on her shoulders unannounced. In addition, she claimed that, on occasion, A/Prof Holdsworth would stand behind her and read what she was working on. She also claimed that when she was working in her office, it was rare for other students to be present.

Findings

1. It is possible that Pinnacle incorrectly recorded the disputed comments. Equally, it is possible that A/Prof Holdsworth has forgotten making those comments. The attributed comments are broadly consistent with the claims made by Ms Vafa. I find it more likely than not that A/Prof Holdsworth made those comments.
2. Ms Vafa's claim that she was alerted to A/Prof Holdsworth being present in her office by A/Prof Holdsworth placing his hand on her shoulder is not necessarily inconsistent with his claim that it was not his practice to "sneak up" on students and that he generally announced his arrival. A/Prof Holdsworth could not know whether Ms Vafa heard him arrive.
3. Allegation 4 is proven in part.

unwelcome conduct

1. I find that Ms Vafa probably considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure.

of a sexual nature

1. There is no evidence to suggest that A/Prof Holdsworth placed his hand on Ms Vafa shoulder for any length or time or that it was accompanied by any words or conduct of sexual nature.
2. I am not satisfied that the proven conduct can be characterised as conduct of sexual nature.

Allegation 5: insistence on weekly meetings "In about February 2016, Ms Vafa refused to attend in-person weekly meetings with Associate Professor Holdsworth with a view to avoiding unwelcome physical contact by Associate Professor Holdsworth. Associate Professor Holdsworth insisted that in-person weekly meetings continue as a precondition to providing Ms Vafa with positive feedback on her progress in her PhD candidacy."

1. In her first affidavit, Ms Vafa wrote that in February 2016 she refused to attend in-person supervision meetings with A/Prof Holdsworth "with a view to avoiding unwelcome physical contact". She wrote: 1. she "felt so sick and disgusted by constantly being touched by him and the only way to avoid it was to stop seeing him in person as much as possible"; 2. she said to A/Prof Holdsworth "I am distressed by your conduct which I think is inappropriate. I want to stop our in-person meetings for a while".
2. In answer to a question from the Tribunal, Ms Vafa agreed that despite the claim in her first affidavit that she had refused to attend weekly meetings with A/Prof Holdsworth, she in fact attended those meetings because she felt she had no other option.
3. A/Prof Holdsworth denied: 1. in February 2016, or at any other time, being told by Ms Vafa that she had refused to attend their supervision meetings; 2. insisting that Ms Vafa attend in-person meeting as a pre-condition to giving positive feedback.

Findings and conclusion

1. A/Prof Holdsworth and Ms Vafa met weekly sometimes virtually throughout the period of supervision. As stated above I am not satisfied that in February 2016, or at any other time during that period, Ms Vafa said to A/Prof Holdsworth that she was uncomfortable with his conduct. Nor am I satisfied that in February 2016, or at any other time, Ms Vafa said to A/Prof Holdsworth that she did not want to attend the weekly meetings because of his conduct.
2. Allegation 5 is not proven.

Allegation 6: Christmas party allegation "Repeatedly touching Ms Vafa's back in the presence of at least one other student of the University in or about late-December 2016, at a Christmas party."

1. Ms Vafa claims that the subject event was a Christmas party organised for staff and students of the Physics school. A/Prof Holdsworth, on the other hand, claims that it was an afternoon tea arranged by Ms Vafa for her mother who was about to return to Iran. Nothing turns on their conflicting claims about the nature of the event.
2. The event was attended at various times by about 30 people, including A/Prof Holdsworth, A/Prof Holdsworth's wife, Ms Vafa, Ms Vafa's mother, and Ms Vafa's then friend, Dr Shirvanimoghaddam.
3. In her first affidavit, Ms Vafa stated that during the event: 1. A/Prof Holdsworth repeatedly touched her back despite having asked him not to do so in November 2016; 2. on one occasion, A/Prof Holdsworth ran his hand down to her buttocks.
4. In the formal complaint and the complaint to the Anti-Discrimination Board, Ms Vafa stated that "many times" during the event, while speaking to others, A/Prof Holdsworth rubbed her back but she made no mention of A/Prof Holdsworth running his hands down to her buttocks. The Pinnacle report records Ms Vafa making much the same allegation.
5. The Pinnacle report recorded A/Prof Holdsworth as saying: 1. he "possibly would have done that [touched Ms Vafa on the back]" but would not have rubbed her back in a way that was inappropriate or with the intention to harass Ms Vafa, pointing out that there was "a room full of people"; 2. while he could not specifically recall "the conduct" he agreed it "was within his general conduct to engage in physical conduct of a similar kind".
6. In his affidavit prepared for these proceedings A/Prof Holdsworth denied rubbing Ms Vafa's buttocks.
7. In cross-examination A/Prof Holdsworth: 1. denied touching Ms Vafa on her buttocks; 2. said he placed his hand on Ms Vafa's back as "a benevolent gesture". He explained that a few days earlier Ms Vafa had informed him she was and was moving out from her accommodation following a dispute with her landlord. (Transcript 26/5/21, Disc 1, p 32)
8. In an affidavit dated 27 October 2020, Dr Shirvanimoghaddam stated that he observed A/Prof Holdsworth run his hand down Ms Vafa's back toward her buttocks. In oral evidence he stated that he saw A/Prof Holdsworth do this on one occasion.

Findings and conclusions

1. The claim made in these proceedings that at the event A/Prof Holdsworth rubbed her back towards her buttocks, is inconsistent with the account given by Ms Vafa to Pinnacle and the Anti-Discrimination Board.
2. Photographs tendered in these proceedings reveal that the event was held in a relatively small and open space. The 30 or so people who attended the event were not all there at the same time. Nonetheless there is no evidence to suggest A/Prof Holdsworth and Ms Vafa were ever alone at the event, or when only a few people were present. In those circumstances it is implausible that A/Prof Holdsworth would have frequently rubbed Ms Vafa's back and/or rubbed his hand towards her buttocks.
3. On this point I found Dr Shirvanimoghaddam's evidence to be unreliable.
4. I find that A/Prof Holdsworth placed his hand on Ms Vafa's back on a few occasions during the subject event. I do not find that he brushed his hand towards or onto her buttocks.
5. Allegation 6 is proven in part.

unwelcome conduct

1. I find that Ms Vafa probably considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure.

of a sexual nature

1. Undoubtedly the act of touching another person on the back (or indeed any body part) is capable of being characterised as conduct of a sexual nature, depending on context. The available evidence does not support a finding that during the event A/Prof Holdsworth touched Ms Vafa on the back on more than a few occasions, that the touching was other than momentary, or that his hand wandered. The touching was not accompanied by any words or other conduct of a sexual nature.
2. I am not satisfied that, objectively assessed, the proven conduct is conduct of sexual nature.

Allegation 7: sharing accommodation "Suggesting and insisting upon sharing accommodation with Ms Vafa for the duration of their stay, over Ms Vafa's repeated objections, prior to a 3-month research trip to Ireland."

1. It is agreed that: 1. A/Prof Holdsworth suggested to Ms Vafa that they share accommodation (but not bedrooms) during their study trip to Ireland; 2. A/Prof Holdsworth asked Ms Vafa to research accommodation options provided by University College Cork for visiting academics; 3. after consulting his wife A/Prof Holdsworth concluded that it was inappropriate that he share accommodation with Ms Vafa; 4. A/Prof Holdsworth and Ms Vafa stayed in separate accommodation while in Ireland.
2. In her first affidavit Ms Vafa stated that A/Prof Holdsworth "pressured" her to share accommodation, even after she had informed him "I would prefer to have separate accommodation".
3. In the formal complaint Ms Vafa stated: 1. she became worried after she found there was little difference between the cost of renting single accommodation and a "double room property"; 2. at that point, she told A/Prof Holdsworth she required her own bathroom because of the risk of infection having a prosthetic palate. A/Prof Holdsworth "got mad" and insisted that they share accommodation; 3. after speaking to his wife at her suggestion, A/Prof Holdsworth told her that his wife had said that sharing was "not a good idea" and that she had booked him separate accommodation; 4. a few days later A/Prof Holdsworth's wife had a "very bad attitude" and told her to find a single room.
4. Ms Vafa's account in the complaint to the Anti-Discrimination Board and that recorded in the Pinnacle report are less detailed but consistent with the account described above.
5. In oral examination Ms Vafa said: 1. she considered A/Prof Holdsworth's request that she investigate shared accommodation options to be a form of pressure; 2. by informing A/Prof Holdsworth that she must have her own bathroom she was indicating that she objected to sharing accommodation; 3. A/Prof Holdsworth repeatedly insisted they share accommodation.
6. A/Prof Holdsworth: 1. claimed that the reason he suggested to Ms Vafa that they share accommodation was because the travel budget for the trip was limited, and, in his experience, single accommodation is generally more expensive than shared accommodation; 2. denied "insisting" that Ms Vafa share accommodation with him in Ireland; 3. denied that at any time Ms Vafa indicated that she was uncomfortable with the shared accommodation proposal or said words to the effect "I don't want to share with you"; 4. said that he abandoned the shared accommodation proposal for both propriety reasons (after speaking with his wife) and financial reasons (after being informed by Ms Vafa that she required her own bathroom, which he concluded would reduce the available options and increase the cost of that accommodation).
7. On 28 November 2016, A/Prof Holdsworth booked his own accommodation just outside Cork. In an email sent on 1 December 2016, A/Prof Holdsworth asked Prof Andersson-Engels whether he could arrange Ms Vafa's accommodation and contribute to the costs of her airfare. Prof Andersson-Engels replied that "we are starting to look into accommodation possibilities for your trip".
8. Ms Vafa claims that she had asked Prof Andersson-Engels to arrange accommodation on 16 November 2016.

Finding

1. The evidence does not support a finding that A/Prof Holdsworth insisted that Ms Vafa share accommodation during their trip to Ireland. Nor does it support a finding that Ms Vafa repeatedly objected to the shared accommodation proposal. That is inconsistent with Ms Vafa's claim that she raised the separate bathroom requirement as a ruse to avoid confronting A/Prof Holdsworth about the shared accommodation proposal.
2. Nonetheless, the evidence makes plain that A/Prof Holdsworth proposed that they share accommodation and, initially, this was his strong preference.
3. Allegation 7 is proven in part, that is, I find that A/Prof Holdsworth proposed that he and Ms Vafa share accommodation for the duration of their stay in Ireland.

unwelcome conduct

1. I find that Ms Vafa probably felt uncomfortable and embarrassed by A/Prof Holdsworth's proposal that they share accommodation. I find that Ms Vafa considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated or intimidated

1. I find that the reasonable person would probably have anticipated that Ms Vafa would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure.

of a sexual nature

1. It is unremarkable that a young female student would find the prospect of sharing accommodation with their male supervisor during an overseas study trip, concerning, if for no other reason than how it might appear to others. While the evidence does not support a finding that A/Prof Holdsworth was seeking to share accommodation for an ulterior reason, nonetheless, it demonstrates lack of insight. That is clear from the fact that it was not until his wife said that the arrangement could be seen to be improper that A/Prof Holdsworth decided to abandon the proposal.
2. However, I am not persuaded that A/Prof Holdsworth's actions in proposing to Ms Vafa that they share accommodation while Ireland could be said to be conduct of a sexual nature.

Allegation 8: "My wife would kill me"' allegation "In June 2017, in response to a fellow student enquiring whether Ms Vafa and Associate Professor Holdsworth had shared accommodation whilst in Ireland, Associate Professor Holdsworth laughing and saying words to the effect of 'my wife would have killed me if I had shared a house with Elham'."

1. In cross-examination, A/Prof Holdsworth agreed that, while in Ireland, within earshot of Ms Vafa, a "third party" asked whether he was sharing accommodation with Ms Vafa, he said laughing and in jest that "my wife would have killed me". He said that he immediately then said that to do so would have been "inappropriate". (Transcript 26/5/21, Disc 2, p 10).
2. Allegation 8 is proven.

unwelcome conduct

1. I find that Ms Vafa probably considered A/Prof Holdsworth's proven conduct unwelcome.

offended, humiliated or intimidated

1. The reasonable person would probably have anticipated that Ms Vafa would be offended by A/Prof Holdsworth's proven conduct in the sense that it would cause her embarrassment and minor displeasure.

of a sexual nature

1. The implication of A/Prof Holdsworth's comment "my wife would have killed me" is clear: that had he shared accommodation with Ms Vafa, A/Prof Holdsworth's wife would have suspected that he and Ms Vafa were sexually intimate. I find the comment to be of a sexual nature. That A/Prof Holdsworth immediately qualified that comment by saying to it would have been "inappropriate" does not alter my view.
2. To fall within s 22A(b) of the AD Act, the perpetrator must "engage in other unwelcome conduct of a sexual nature in relation to the other person". A/Prof Holdsworth did not initiate the conversation about sharing accommodation with Ms Vafa. It was a one-off comment in response to a question asked. It was not made in the context of a ribald exchange. The evidence does not support a finding that A/Prof Holdsworth made that comment with the intention of it being heard by, or to embarrass Ms Vafa.
3. Nonetheless, it was conduct in which A/Prof Holdsworth engaged "in relation to" Ms Vafa. Therefore, it amounts to sexual harassment within s 22A(b) of the AD Act which is made unlawful by s 23E(1) of the AD Act.
4. Allegation 8 is proven.

Allegation 9: Facebook Messenger allegation "In about early-to mid-2017, whilst in Ireland, Associate Professor Holdsworth sent repeated requests for a video call via Facebook Messenger while each of Associate Professor Holdsworth and Ms Vafa were alone in their respective rooms, despite Ms Vafa ignoring his requests."

1. It was conceded for Ms Vafa that the evidence reveals that only one of the calls was made by video by Facebook Messenger.
2. In the first affidavit, Ms Vafa stated that on 15 February 2017 and 6 May 2017, A/Prof Holdsworth requested video calls with her on Facebook Messenger "even though I had notified him of my discomfort about his inappropriate behaviour". Further, she alleged that those requests were made when they were both in Ireland, at night and when they were alone in their respective accommodation.
3. In cross-examination Ms Vafa agreed that she was mistaken and that she was in NSW and A/Prof Holdsworth was overseas on 15 February 2017. When taken to the screen shots provided by A/Prof Holdsworth of these calls which showed that each were made in the afternoon, Ms Vafa said that she was certain that at least one of the calls took place at night. In cross-examination, she claimed that she told A/Prof Holdsworth after the first call that she did not feel comfortable with taking a video call from him. No mention is made of that claim in her affidavit.
4. A/Prof Holdsworth denied being told by Ms Vafa that any request he made for a Facebook Messenger call was inappropriate.

Finding

1. The evidence does not support a finding that Ms Vafa and A/Prof Holdsworth were alone in their respective rooms when A/Prof Holdsworth made either the phone or video call. Nor does the evidence support a finding that Ms Vafa told A/Prof Holdsworth that she did not feel comfortable taking a video call from him.
2. Allegation 9 is not proven.

Allegation 10: "Yes, John" allegation "In about May 2017, when Ms Vafa disagreed with his instructions in a laboratory in Ireland on the University's premises, Associate Professor Holdsworth raised his finger at Ms Vafa and said words to the effect of 'Say 'Yes, John'."

1. This claim is unsupported and denied by A/Prof Holdsworth. It is not proven.

Allegation 11: Academic father allegation "Saying to Ms Vafa words to the effect of 'Don't worry, I am your academic father' when Ms Vafa objected to unwelcome physical contact by A/Prof Holdsworth."

1. According to Ms Vafa whenever she told A/Prof Holdsworth his physical conduct was unwelcome he would say to her "don't worry, I am your academic father".
2. A/Prof Holdsworth denies that Ms Vafa had ever accused him of unwelcome physical contact. He claims that the sole occasion that he described himself as her "academic father" was in the 2015 Father's Day email sent in September 2015 (see above).
3. For the reasons discussed above, the premise on which this allegation rests, that Ms Vafa made known her objections to unwelcome physical contact by A/Prof Holdsworth is not established.
4. Allegation 11 is not proven.

Summary: sexual harassment complaint

1. Allegation 8 is proven. That conduct is made unlawful by s 23E(1) of the AD Act. The balance of the complaint of sexual harassment is not substantiated.

B Complaint of sex discrimination

1. Ms Vafa claims that A/Prof Holdsworth and the University discriminated against her on the ground of sex.
2. Section 31A(2) of the AD Act makes it unlawful for an educational institution to discriminate against a student on the ground of sex: 31A Education … (2) It is unlawful for an educational authority to discriminate against a student on the ground of sex-- (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment.

Complaint of sex discrimination: A/Prof Holdsworth

1. At the hearing I raised with the parties my preliminary view that the complaint of sex discrimination made against A/Prof Holdsworth was misconceived because he was not an "educational authority" for the purposes of the AD Act. Each party made written submissions on this issue.
2. Section 4 of the AD Act defines educational authority to mean: …a person or body administering a school, college, university or other institution at which education or training is provided.
3. Ms Vafa points out that the AD Act contemplates that an individual or natural person may be an educational authority. Potentially an employed academic could be an educational authority.
4. Citing, Haines v Leves (1987) 8 NSWLR 442 at pp 454-455 per Street CJ, Ms Vafa argues that the term educational authority should be read to mean the individual or body who has decision-making power in respect of the activities described in s 31A(2) of the AD Act. Ms Vafa points out that A/Prof Holdsworth had "decision-making power" in respect of those activities. For example, it was within his authority to deny, or to limit Ms Vafa's access to equipment, and to other benefits in the context of her enrolment as a student. In addition, it was within his power to subject her to a detriment, by for example, providing an unfavourable progress report or subjecting her to sexual harassment.
5. Second, referring to one of the definitions given by the Oxford Dictionary to the word "administer" to include "manage as a steward; carry on or execute (an office, affairs, etc.)", Ms Vafa contends that there is nothing in the ordinary meaning of that word, or in the text of ss 4 and 31A of the AD Act, that requires the act of administering to be confined to those persons exercising overall or ultimate authority in respect of the activities described in s 31A of that Act.
6. Finally, Ms Vafa contends that this construction would be consistent with a purposive approach, which ought to be applied in respect of the AD Act, as a piece of beneficial legislation.
7. The respondents disagree. They argue that the term educational authority should be read to mean the body or person with the powers or authority to administer the institution. In addition, the University contends that Ms Vafa's reliance on Haines v Leves in misplaced. That case concerned the question of whether the principal of a school or the Minister of Education was the "educational authority" for a particular high school, for the purposes of s 31A of the AD Act. The Court of Appeal found that the Minister for Education is the "educational authority" as the person responsible for any contravention of s 31A of the AD Act regardless of who exercised the relevant functions in a de facto sense.

Consideration

1. Answering the question, whether A/Prof Holdsworth is an "educational authority" requires consideration of text, context and purpose: Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].
2. The statutory definition does not refer to a person or body involved in, or having some role in, administering the institution, but rather the person or body administering the institution. As is apparent from the dictionary definitions each party urges me to adopt, the word administer is capable of several meanings. As I explain below the best fit in my view is the meaning the respondents urge me to adopt, that is, "to manage (affairs, a government)", (Macquarie Dictionary).
3. The context in which the term educational authority is used throughout the AD Act tends against the construction favoured by Ms Vafa. For example, the AD Act makes it unlawful for an educational authority to discriminate against a person on various grounds "by refusing or failing to accept his or her application for admission as a student, and the terms on which it is prepared to admit him or her as a student": see, for example, s 49L(1). In addition, the AD Act makes it unlawful for an educational authority to discriminate against a student by expelling him or her: see, for example, s 49L(2).
4. This is a powerful contextual indicator that the term educational authority is used to mean the body or person who has the power to grant or refuse admission to the subject institution and to expel a student from that institution. Undoubtedly A/Prof Holdsworth had power to make decisions in relation to Ms Vafa (and other students). However, his authority did not extend to admitting a person to the University or to expelling a student.
5. I accept as argued by Ms Vafa that given its beneficial character, a purposive approach should be adopted in interpreting the AD Act. However, this is not a case where two or more constructions are available. For the reasons given I do not consider that the construction advanced by Ms Vafa is supported by the text and context.
6. A/Prof Holdsworth is not an educational authority for the purpose of the AD Act.

Complaint of sex discrimination: the University

1. There was much argument in these proceedings about the scope of the "pleadings" in relation to Ms Vafa's complaint of sex discrimination on the basis of A/Prof Holdsworth's conduct. It is not necessary to determine that issue, in short, because the premise on which that complaint rests is not established.
2. Citing, Ferreira & anor v Wollongong Spanish Club Pty Ltd & anor [2005] NSWADT 57, Ms Vafa contends that the University failed to provide her with an environment free from sexual harassment and on that basis had subjected her to a detriment within the meaning of s 31A(2)(b) of the AD Act. In Ferreira, the Tribunal found that by failing to prevent the harassment of an employee, the employer has discriminated against that employee on the ground of sex.
3. Given my finding that one allegation of sexual harassment is proven, conduct which occurred on a single occasion, it could be said that the University subjected Ms Vafa to persistent harassment, or hostile environment. (see for example, Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217 at [275]).
4. The complaint of sexual harassment is not substantiated.

Complaint of victimisation

1. Ms Vafa claims that A/Prof Holdsworth and the University victimised her in contravention of s 50 of the AD Act. The complaints of victimisation as against the University and A/Prof Holdsworth are independent of each other.

Statutory framework and legal principles

1. Section 50 of the AD Act states: 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.
2. For the complaint of victimisation to be substantiated, Ms Vafa must establish on the balance of probabilities (Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53]) that: 1. A/Prof Holdsworth/the University, its agent or employee, caused her to undergo or experience something; 2. she suffered some consequential detriment; and 3. she was subjected to that detriment "on the ground" that she did, one of the things listed in s 50(1) of the AD Act or because A/Prof Holdsworth or the University suspected that she has done, or intended to do one of those things: see, Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70] quoting Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls) at [28].
3. The term "detriment" in s 50 is not defined by the AD Act. I adopt the meaning of that term consistently applied by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal (the ADT) - that is, something that objectively assessed amounts to loss, damage or injury that is real and not trivial. (See, for example, Sivananthan v Commissioner of Police [2001] NSWADT 44 at [41]; Tebb v State of NSW [2020] NSWCATAD 85 at [22]; Bonella v Wollongong City Council [2001] NSWADT 194 at [50].)
4. In Nicholls, an Appeal Panel of the ADT considered the meaning of the phrase "on the ground" in s 50 of the AD Act, concluding at [37] that the question posed was whether at least one of the "real", "genuine" or "true" reasons the "discriminator" subjected "the person victimised" to a detriment was that the person victimised had done or intended to do, or the discriminator suspected that the person victimised had done or intended to do, at least one of the things listed in s 50(1)(a)-(d) of that Act.

Victimisation: A/Prof Holdsworth

1. At [13] the Applicant's Second Further Amended Points of Claim (ASFAPOC) lists 10 alleged acts by A/Prof Holdsworth said to amount to a "detriment" within the meaning of s 50 of the AD Act. At [8] the ASFAPOC states that between August 2015 and November 2017, on "multiple occasions", Ms Vafa made complaints to A/Prof Holdsworth which came within s 50(1)(c) of the AD Act and lists five specific "complaints" at (a) to (e) of [8].
2. As discussed above, I am not satisfied that at any time before 6 December 2017 Ms Vafa said or indicated to A/Prof Holdsworth that his conduct was inappropriate, or amounted to sexual harassment or was a contravention of the AD Act (however expressed) or threatened to report that conduct. It follows any act that occurred before that date could not be said to have done on the ground that Ms Vafa had alleged that A/Prof Holdsworth's conduct amounted to a contravention of the AD Act, or that A/Prof Holdsworth suspected that Ms Vafa had, or intended to, make that allegation. It follows that Allegations (a), (b), (c), (d), (e) and (f) must fail.
3. Nonetheless, because it was the subject of much evidence and substantial submissions, I will address Allegation (b) (withdrawing supervision of Ms Vafa's PhD candidacy) and Allegation (f) (giving Ms Vafa a negative assessment in the annual 2017 progress report).

Assessment of evidence of causation

1. There is no direct evidence that the reason A/Prof Holdsworth withdrew his supervision of Ms Vafa, gave her a negative assessment in the 2017 progress report, or did any of the things said to amount to victimisation listed in ASFAPOC, was that Ms Vafa had alleged that he had sexually harassed her, or he suspected that she had, or intended to, make that allegation.
2. The authorities have frequently observed that direct evidence of discrimination is rare and the outcome of a case will usually depend on what inferences can be drawn from the primary facts found: Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40], citing Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]). That observation applies equally to complaints of victimisation.
3. In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, the High Court observed that to ground an inference where direct proof is not available, "it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture" (see also TB v New South Wales [2015] NSWSC 575 at [85], [86]; Marshall v Prescott [2015] NSWCA 110 at [83]). An inference cannot be drawn in the absence of evidence: Marshall v Prescott at [83]. However, the civil standard is "concerned with probabilities, not with possibilities": Bradshaw v McEwans at [5].

Allegation (b) "In about November 2017, A/Prof Holdsworth withdrew his supervision of Ms Vafa's PhD candidacy, and did so without any notice to her."

Allegation (f) "In November 2017, A/Prof Holdsworth submitted a joint progress report which was unfairly negative, without consent of Ms Vafa and without giving her notice, in circumstances where joint progress reports are required to reflect the views of both the student and the supervisor."

1. Undoubtedly, by his decision to withdraw his supervision of Ms Vafa's candidacy, A/Prof Holdsworth subjected Ms Vafa to a detriment. Without notice Ms Vafa was left without a principal supervisor. Given her highly specialised field of study, there was a risk that Ms Vafa would be unable to find a replacement supervisor in Australia which would jeopardise her scholarship and her ability to complete her PhD.
2. Similarly, by his decision to give Ms Vafa a negative assessment in the final 2017 progress report, especially in circumstances where he had not previously raised any concerns with Ms Vafa, A/Prof Holdsworth subjected Ms Vafa to a detriment.
3. The issue to be decided is whether the inference can be drawn that at least one of the real, genuine or true reasons A/Prof Holdsworth subjected Ms Vafa to that detriment was that Ms Vafa had alleged that he had sexually harassed her, or he suspected that she had, or intended to.

On the ground of

1. A/Prof Holdsworth stated that the reason he decided to withdraw his supervision of Ms Vafa was "fundamentally" based on her lack of respect for and actions in verbally attacking Dr Sharafutainova at the Gloria Jean's meeting. He claimed that Ms Vafa's actions at that meeting made it impossible for her to work with Dr Sharafutainova and for him to continue to act as her supervisor. He stated that Dr Sharafutainova is the expert in TracePro software and in his view her involvement in Ms Vafa's research was critical.
2. A further reason given by A/Prof Holdsworth for that decision was Ms Vafa's alleged lack of progress towards recording or advancing her modelling research between March 2017 and her return to Australia in October 2017.
3. Ms Vafa contends that the latter claim does not withstand scrutiny for these reasons: 1. A/Prof Holdsworth sent an email to Ms Vafa on 16 October 2017 saying, "we have some interesting new results to discuss". This indicates that at that time he intended to continue his supervision. He confirmed that in oral evidence. 2. A/Prof Holdsworth admitted to Pinnacle that he did not expect output from Ms Vafa for some time between July and October 2017 because he knew and accepted that she was attending conferences and taking personal leave. 3. As he acknowledged in oral evidence, A/Prof Holdsworth knew that while in Iran for 10 weeks, Ms Vafa would be living in locations with limited internet connectivity which would prevent her from remotely accessing the equipment she required to carry out her modelling. 4. The travel diaries submitted to the University at A/Prof Holdsworth's direction indicate that Ms Vafa was on personal leave throughout the 10 weeks she was in Iran.
4. In addition, Ms Vafa contends that the alleged verbal attack on Dr Sharafutainova at the Gloria Jean's meeting must be rejected. Like A/Prof Holdsworth's claim that one of the reasons he decided to cease to act as Ms Vafa's supervisor, his claim that it was also because of her lack of progress with her PhD is concocted, self-serving and inaccurate.
5. Further, Ms Vafa contends that A/Prof Holdsworth's explanation for downgrading his assessment of her progress from "good" (in the mid-2017 and previous reports) to "poor" (in the final 2017 report) does not withstand scrutiny. Ms Vafa argues that A/Prof Holdsworth's explanation that he had made a "mistake" in the 2017 report by stating that she had completed 15% of her PhD, cannot be accepted. Taken together with the "unprofessional and spiteful" comments he made in that report, such as that Ms Vafa has a "breathtaking sense of entitlement" and that she is "better off in Lund, Sweden, which is where she wants to be", the inference should be drawn that the downgrading was a deliberate act of retaliation by A/Prof Holdsworth.
6. It is telling, argues Ms Vafa, that in his affidavit evidence A/Prof Holdsworth failed to pinpoint the date in November 2017 he decided to cease acting as her supervisor. Further, she claims that she made an informal complaint to Professor Martin at a meeting on 13 November 2017 and, in addition, said that she had been sexually harassed at the meeting on 20 November 2017 with Professor Martin, A/Prof Hogan and A/Prof Holdsworth.
7. The respondents point out that A/Prof Holdsworth's decisions to cease acting as Ms Vafa's supervisor and to give her a negative assessment in the final report were each made in November 2017, well before A/Prof Holdsworth was advised of the formal complaint made by Ms Vafa on 6 December 2017.
8. In addition, the respondents contend that A/Prof Holdsworth's claim that his decision to cease acting as Ms Vafa's supervisor was triggered by the Gloria Jean's meeting is plausible and entirely consistent with the account given by Dr Sharafutainova of that meeting.
9. Further, the respondents contend there is not a skerrick of evidence to suggest that A/Prof Holdsworth was aware of Ms Vafa's complaint prior to those actions.

Dates the impugned decisions were made

1. Three dates are significant in determining whether at least one of the reasons A/Prof Holdsworth decided to cease acting as Ms Vafa's supervisor and to provide a negative progress report was that Ms Vafa had alleged that he had sexually harassed her: the date A/Prof Holdsworth became aware of that allegation, the date he decided to cease to act as Ms Vafa's supervisor and the date he submitted the final 2017 progress report.
2. There is no documentary material to assist in determining when A/Prof Holdsworth decided to cease as Ms Vafa's supervisor or when he informed the University of that decision. The tenor of his email to Professor Martin, sent on 1 November 2017, which is set out in full above, indicated that at least by that date, A/Prof Holdsworth had decided, or was close to deciding, to cease to act as Ms Vafa's supervisor: "I am over it. My health and well-being have suffered enough. I have no confidence in her abilities to achieve in her PhD studies without the support of me and my colleagues who she has comprehensively devalued and hurt." Nonetheless, as Ms Vafa points out, in his affidavit evidence A/Prof Holdsworth did not pinpoint the date he decided to withdraw as her supervisor or the date he communicated that decision to the University. He merely stated that that decision was made "in or about November 2017". In oral evidence, A/Prof Holdsworth said that he told Professor Martin of his decision at a meeting held in the first week of November 2017.
3. The email sent by A/Prof Hogan on 17 November 2017, informing Ms Vafa that he had found three potential supervisors, reveals that at least by that date Ms Vafa was aware of A/Prof Holdsworth's decision. However, the evidence does not reveal precisely when she was informed of that decision.
4. The final 2017 progress report is undated. A/Prof Holdsworth could not recall the exact date he submitted that report. The best evidence is that A/Prof Holdsworth submitted that report on 20 November 2017.
5. For the reasons discussed above, I am not persuaded that Ms Vafa said to Professor Martin on 13 November 2017 that she had been sexually harassed by A/Prof Holdsworth. Nor am I persuaded that she made that allegation at the meeting on 20 November 2017 attended by Professor Martin, A/Prof Hogan and A/Prof Holdsworth. That claim was not mentioned by Ms Vafa in her affidavits prepared for these proceedings and was disputed by A/Prof Holdsworth and A/Prof Hogan.
6. I find that at least by 17 November 2017, A/Prof Holdsworth had informed the University of his decision to cease to act as Ms Vafa's supervisor.

The Gloria Jean's meeting

1. The respective accounts given by the participants in this meeting are set out in detail above. Those accounts reveal that while the participants disagree about who was responsible for the meeting becoming heated and who acted aggressively, the differences about the issues discussed are largely one of degree. It is agreed that soon after the meeting commenced it became heated and emotionally charged. In addition, it is agreed that Ms Vafa raised a series of concerns, including her access to the Alienware PC; Dr Sharafutainova's actions in restricting her access to the laboratory; Dr Sharafutainova and Mr Tegg's actions in working on a macro-script for the optical scanner while she was overseas; A/Prof Holdsworth's insistence that she acknowledge the purported contribution of one of his students in a paper she had authored, and the Tegg email. Her comments in the formal complaint, indicate that Ms Vafa considered she had been unfairly treated, and was aggrieved by the conduct of Dr Sharafutainova about whom she lodged a formal complaint.
2. The real point of difference in the accounts given of the meeting is that Ms Vafa considered that she was justified in raising these concerns and that she did so in a measured and calm manner. On the other hand, Dr Sharafutainova and A/Prof Holdsworth considered that Ms Vafa had levelled a series of attacks on Dr Sharafutainova and did so in an aggressive manner. Given its emotionally charged nature, the account given of the meeting by all participants may be unreliable to some extent. However, I think that the accounts given by A/Prof Holdsworth and Dr Sharafutainova are probably a reasonably accurate account of what occurred. First, they are consistent with A/Prof Holdsworth's undisputed account of bringing the meeting to an end by standing and saying, "Enough!" Second, they are consistent with A/Prof Holdsworth's actions in emailing Professor Martin the following day reporting that Ms Vafa had "comprehensively devalued and hurt" Dr Sharafutainova and he was "over it". The complaints of victimisation as against the University and A/Prof Holdsworth are independent of each other.
3. I accept A/Prof Holdsworth's claim that he considered Ms Vafa's actions at the meeting to have torpedoed the possibility of future collaboration with Dr Sharafutainova. That response is plausible given his close working relationship with, and evident high regard for, Dr Sharafutainova. The two had collaborated on research projects for over a decade, including the development of the optical scanner, which Ms Vafa was using in her research project. A/Prof Holdsworth considered Dr Sharafutainova to be the expert in TracePro software. In addition, that claim is consistent with A/Prof Holdsworth's actions in recommending to Ms Vafa that Dr Sharafutainova be appointed as her supervisor and his subsequent attempts to dissuade Ms Vafa from removing Dr Sharafutainova as her supervisor in May 2017.
4. Finally, Ms Vafa's claim that she had no reason to be angry with Dr Sharafutainova at the Gloria Jean's meeting as she had removed her as a supervisor in May 2017 sits uncomfortably with her actions in asking Dr Sharafutainova to attend the Gloria Jean's meeting and her subsequent actions in lodging a formal complaint about Dr Sharafutainova. It is also inconsistent with her view of her history of the history of her relationship with Dr Sharafutainova. Dr Sharafutainova acted towards her in a way Ms Vafa considered unreasonable and abrupt. It is apparent that Ms Vafa considered Dr Sharafutainova's failure to attend her confirmation ceremony in 2016, a significant slight.
5. I find it more probable than not that the main reason A/Prof Holdsworth decided to cease acting as Ms Vafa's supervisor was because of the attacks she made on Dr Sharafutainova at the Gloria Jean's meeting.

The downgraded progress rating

1. Ms Vafa contends that the negative assessment given by A/Prof Holdsworth in the final 2017 progress report supports the inference being drawn that he did so because she had alleged that he had sexually harassed her. In support, Ms Vafa points to the positive assessments given by A/Prof Holdsworth in previous progress reports and his acknowledgement that he had not raised any concerns with her before submitting the final 2017 report. In addition, Ms Vafa contends that A/Prof Holdsworth's claim of being dissatisfied with her failure to work on her thesis in the 10 weeks before returning to Australia in October 2017 is at odds with his actions in approving her taking extended leave from her thesis as evidenced by the travel diaries.

Failure to progress the thesis in Iran

1. The travel diaries support Ms Vafa's claim that A/Prof Holdsworth was aware that she would be taking personal leave while in Iran. On the other hand, A/Prof Holdsworth's evidence that Ms Vafa told him that she would be undergoing reconstructive surgery while in Iran and when well enough would resume work on her thesis is uncontradicted. So too is his evidence that the surgery did not proceed.
2. I find it likely that, as he claimed, A/Prof Holdsworth had an expectation that Ms Vafa would undertake some work during the 10 weeks she spent in Iran and was annoyed when he realised that she had not. That is consistent with A/Prof Holdsworth's actions in setting up a software program to enable her to log in remotely to work on her research project; the email he sent to Ms Vafa on 12 October 2017 asking for an update on her work having "not received any communication for a month"; his initial refusal to accept Ms Vafa's invitation to attend the Gloria Jean's meeting and, after he had acquiesced, his comment to Dr Sharafutainova, "Elham wants to apologise"; and, finally, Dr Sharafutainova's understanding that by that remark he meant that Ms Vafa wanted to apologise for her prolonged absence and lack of progress with her study.
3. It is also consistent with A/Prof Holdsworth's understanding that PhD students were entitled to only four weeks personal leave per year and any additional leave had implications for the student's scholarship entitlement and the deadline for the completion of their PhD. Whether Ms Vafa had a comprehensive understanding of that limitation on her scholarship is not clear.
4. I think it is possible that there was a misunderstanding on Ms Vafa's part about A/Prof Holdsworth's expectations of her while she was in Iran. It is possible that he failed to spell out exactly what he expected from her in terms of work on her thesis. Given that he had signed off on the travel diaries, Ms Vafa may not have believed that she was required or expected to produce work while in Iran, especially if she had taken that trip for the primary purpose of undergoing surgery.

The final assessment

1. A/Prof Holdsworth acknowledged that, before completing the final progress report, he had not informed Ms Vafa that he had any concerns with her work.
2. In May 2017, when they completed the mid-year progress report, Ms Vafa and A/Prof Holdsworth agreed that Ms Vafa had only partially met the progress targets they had agreed upon. Each attributed that lack of progress to computer problems and delay in the equipment being used by Ms Vafa being transported to Ireland. In that part of the report completed by Ms Vafa she attributed responsibility for those problems to the University and its staff. In contrast, A/Prof Holdsworth merely noted the problem and made no statement about where responsibility lay. In these proceedings, A/Prof Holdsworth said that during a meeting on 26 May 2017 where he raised with Ms Vafa concerns about her failure to address these IT problems, he "got suss back". He claimed that Ms Vafa had a tendency to attribute blame to others and was a person who "would not take negative feedback".
3. I find it more probable than not that in May 2017 A/Prof Holdsworth was annoyed with Ms Vafa's response to the computer problems she had encountered with her research project. His account of discovering shortly before he was to leave for Ireland that the equipment needed for that trip had not been packed and of being annoyed at having to undertake that task himself had the ring of truth.
4. Nonetheless, at least by May 2017, A/Prof Holdsworth did not consider Ms Vafa's response to those issues sufficient to warrant giving her a negative assessment in the mid-year progress report. This suggests that, of itself, Ms Vafa's failure to progress her research project while in Iran would probably not have led A/Prof Holdsworth to give an unfavourable assessment in the final report. It would probably have been something he would have prepared to overlook, both to avoid a confrontation with Ms Vafa and because he was confident that she was capable of completing her PhD. However, the Gloria Jean's meeting was an inflection point and from that point on A/Prof Holdsworth was no longer prepared to tolerate Ms Vafa's lack of progress with her thesis and other shortcomings.
5. It is possible, as Ms Vafa argued, that the A/Prof Holdsworth's statement in the final report that she had completed only 15% of her PhD was a malicious act and not, as he claimed, a mistake. As is evident from the tenor of his comments, including the remark that Ms Vafa had a "breathtaking sense of entitlement", by that time he held an extremely poor opinion of Ms Vafa.
6. There are two competing hypothesis which might explain A/Prof Holdsworth's actions in giving Ms Vafa a negative assessment in the final report: that Ms Vafa had made an allegation of sexual harassment prompted the assessment or that her treatment of Dr Sharafutainova, coupled with A/Prof Holdsworth's alleged sense of annoyance with Ms Vafa's lack of progress on her thesis while in Iran, had done so. I find the latter to be the more probable explanation. Ms Vafa, from A/Prof Holdsworth's perspective, had rebuffed and been disrespectful to a valued colleague, had not demonstrated the work ethic that he expected of a serious PhD candidate, had not engaged satisfactorily with the research team and had not produced much valuable work since June 2017. His remark that he was "over it" indicates a high degree of frustration with her performance as a whole. If that assessment had a reasonable basis, it might well have tried the patience of any supervisor of higher degree research.

Summary

1. I am not persuaded that one of the real, genuine or true reasons A/Prof Holdsworth decided to cease to act Ms Vafa's supervisor, or to give Ms Vafa a negative assessment, was that Ms Vafa had alleged that she had been sexually harassed, or because he suspected that she had or intended to make that allegation.
2. Allegations (b) and (f) are not proven.

Allegation (g) "On at least two occasions between July 2018 and February 2019, A/Prof Holdsworth approached Ms Vafa on or near the University campus, in a manner which she found to be intimidating, including by physically pursuing her as she ran away."

1. In their respective affidavits A/Prof Holdsworth and Ms Vafa gave the following accounts of these incidents.

4 July 2018

1. On 4 July 2018, accompanied by a friend, Ms Vafa went to the Physics building to collect some personal belongings. She noticed A/Prof Holdsworth in the corridor and moved away to avoid a confrontation. After collecting her personal belongings and leaving the building, she noticed A/Prof Holdsworth was "staring directly at me and he had a very angry look on his face". She said she was frightened, dashed into a friend's office and had a panic attack.
2. A/Prof Holdsworth denied that he conveyed, or had intended to convey, an expression of anger when he saw Ms Vafa. He described his facial expression as "blank". He said he was mindful that the University had directed him not to have contact with Ms Vafa and he was focused on removing himself from her presence.

The cycling incident

1. According to Ms Vafa, on 5 July 2018, while walking toward the campus with a friend, she noticed a cyclist riding at speed, in close proximity "for some distance". She stated that she had to walk very fast to avoid being hit by the cyclist. She claimed that her friend warned her to be careful so that they would not be hit by the bike. She said when the cyclist passed he turned and looked at her. She realised it was A/Prof Holdsworth. She was extremely frightened and thought that A/Prof Holdsworth had "chased her down".
2. A/Prof Holdsworth said that while cycling to campus on his usual route he saw Ms Vafa and a friend walking along a shared pedestrian cyclist path, the main route to campus. He denied cycling at speed and claimed that the path was uphill and steep. In addition, he claimed that the path was wide and he chose the widest part of the path to overtake Ms Vafa.
3. In cross-examination Ms Vafa said that the path was downhill not uphill as claimed by A/Prof Holdsworth. In addition, she disputed A/Prof Holdsworth's claim that the path was wide. She described it "as really narrow" and that when A/Prof Holdsworth overtook, she and her friend were forced to move against a wall.

The café incident

1. In May 2019, while in a café on campus with a friend, Ms Vafa noticed A/Prof Holdsworth who stared directly at her and started walking towards her. She was very frightened and left the café.
2. A/Prof Holdsworth's evidence was that while in the café he was greeted by Ms Al-Zuhaira, a PhD student whom he co-supervised. He said that when he went to speak to Ms Al-Zuhaira, he realised that she in the company of Ms Vafa who was seated with her back to him. He walked on.

Findings

1. I understand the alleged detriment in respect of the first incident, to be A/Prof Holdsworth's actions in looking at Ms Vafa "with an angry face". It is possible he did so. Equally, given that the University had directed that they not have any contact with the other, it is possible that he merely sought to remove himself from Ms Vafa's presence as quickly as possible.
2. There is no doubt that the parties had an unexpected encounter which unpleasantly surprised both. In such circumstances, it may be that an involuntary look of displeasure appeared on A/Prof Holdsworth's face. He may also, as he claimed, simply have given Ms Vafa a 'blank look' before turning away. Whether that constitutes "an angry face" may be a matter of subjective interpretation. It could be that both or either are exaggerating or being untruthful. For both of them, it was probably an unsettling incident. But the evidence as to what occurred is in conflict. I could not be satisfied that A/Prof Holdsworth looked at Ms Vafa with an angry face.
3. Similarly, there are conflicting accounts of the cycling and café incidents. Neither are corroborated. In circumstances where Ms Vafa bears the evidentiary onus I could not be satisfied that Ms Vafa's account of either incident is made out.
4. Allegation (g) is not proven.

Allegation (h): "Since November 2017, A/Prof Holdsworth has failed to provide Ms Vafa with a letter of technical expertise, despite her requests that he do so."

1. In her first affidavit Ms Vafa stated that A/Prof Holdsworth failed to provide her with a letter of expertise and in an email sent in April 2019 she raised this issue with Professor Lucy Johnston. In his affidavit, referring to a letter dated 22 January 2018, A/Prof Holdsworth asserted that he had provided that letter.
2. That allegation was deleted from the amended points of claim handed up on the first day of the hearing. When questioned in oral evidence Ms Vafa said that she pressed that allegation and it should not have been removed. Counsel for Ms Vafa advised that she would seek instructions. On the final day of hearing, counsel advised that the allegation was pressed.
3. A/Prof Holdsworth was not cross-examined about his claim that he provided the letter of technical expertise requested by Ms Vafa. Nor was any substantial argument put which might assist me to determine whether as Ms Vafa apparently believes the letter dated 22 January 2018, does not constitute a letter of technical expertise.
4. The premise on which this allegation is based is not proven.

Allegation (i) "From November 2017 to July 2018, A/Prof Holdsworth refused to provide Ms Vafa with access to the Optics lab in the Physics building, the TracePro software and the Alienware computer."

Allegation (j) "From November 2017 to present, A/Prof Holdsworth refused to provide Ms Vafa with access to the volumetric /volume scanner."

1. The Alienware PC and the volumetric scanner were housed in the Optics laboratory (PG101). The TracePro software could only be run on the Alienware PC.
2. In March 2018 Ms Vafa requested Professor Stanwell to facilitate access to Alienware PC and the TracePro software. Ms Vafa claimed that around that time she also asked Professor Stanwell to facilitate access to the volume scanner. Professor Stanwell claims that that request was made sometime in the second half of 2018.
3. In May 2018 Professor Stanwell requested A/Prof Holdsworth to give Ms Vafa access to the TracePro software and the Alienware PC. In an email sent 31 May 2018, A/Prof Holdsworth wrote "there has been an irretrievable breakdown between Elham and her past supervisory team and which makes it impossible to accommodate her request".
4. Professor Stanwell sought assistance from the Office of Graduate Research. Dean of Graduate Research, Professor Lucy Johnston, brokered an agreement the effect of which was that the School of MaPS agreed to loan Ms Vafa an Alienware PC and the TracePro key. In an email sent to Professor Stanwell on June 8 2017, A/Prof Holdsworth stated that the cost of providing a replicate PC and TracePro key was $30,000 which had been borne by the School of MaPS.
5. Apparently Ms Vafa was provided that equipment in July 2018.

The volume scanner

1. In Ms Vafa's annual 2018 progress report, Professor Stanwell wrote the "current supervision team will request access to the volume scanner to run further experiments to finalise this part of Elham's simulation in a timely manner".
2. In mid-2019, Professor Stanwell informed Ms Vafa that he had been advised by Professor Johnston that she would not be able to access the volume scanner because the "settings are too far advanced".

A/Prof Holdsworth

1. In cross-examination, A/Prof Holdsworth denied Ms Vafa's claim in her second affidavit that at the meeting on 20 November 2017 with Professor Martin and A/Prof Hogan, Ms Vafa requested that she be given access to the volume scanner and that he had refused. A/Prof Hogan recalled that request was not made until sometime after that meeting.
2. A/Prof Holdsworth agreed that Professor Stanwell had contacted him about Ms Vafa having access to the volume Alienware PC and the TracePro but he could not recall being contacted about the volume scanner. He denied saying to Professor Stanwell or anyone else that Ms Vafa would be unable to access the scanner because the settings had changed. He said that it was "technically possible" for the settings to be set back to where they were at an earlier point in time.
3. In cross-examination, A/Prof Holdsworth was asked why, on 31 May 2018, he had refused Professor Stanwell's request that Ms Vafa be given access to the Alienware PC and the TracePro software citing an "irretrievable breakdown". A/Prof Holdsworth stated that it was primarily because it had the potential to expose him to a complaint of plagiarism. He explained that as the administrator of the system he would have access to Ms Vafa's work. He rejected the allegation that he had overstated his concerns about a complaint of plagiarism, describing such complaints as being "equivalent to a bomb joke at an airport … in an academic setting, it is a grave, grave accusation".

Findings

1. It is possible that one of the reasons A/Prof Holdsworth refused Professor Stanwell's request for Ms Vafa to have access to the Alienware PC and the TracePro software was because of Ms Vafa's complaint of sexual harassment. Notably, it was not until the intervention of Professor Johnston that he agreed to that request. It is also possible that the reason for the refusal was that A/Prof Holdsworth had concerns about being subjected to a plagiarism complaint. A third possibility is that a combination of concerns about unfounded plagiarism complaints and ill-feeling and distrust of Ms Vafa resulting from of her complaint of sexual harassment were factors in A/Prof Holdsworth's initial refusal.
2. The ultimate decision about the volume scanner appears to have been made by Professor Johnston. While the evidence is unclear about who raised the issue about Ms Vafa's access to the volume scanner with A/Prof Holdsworth and when that issue was raised, it is improbable that he was not consulted at some point.
3. The evidence on which Ms Vafa relies in support of her hypothesis gives rise to a "reasonable and definite" inference of victimisation. On the other hand the explanation provided by A/Prof Holdsworth is plausible. A/Prof Holdsworth's attitude towards giving Ms Vafa access to the technology he administered and which she needed to continue her work appears to have been, at best, grudging. By that time, the relationship between himself and Ms Vafa had irretrievably broken down. Not only had that relationship broken down as a result of events in 2017 described above but they also undoubtedly deteriorated even further as a result of her complaints about him to the University. He was indignant about those complaints. In such circumstances, it is not improbable that his refusal to give access to the technology was motivated by a desire to retaliate against Ms Vafa.
4. On the other hand, Ms Vafa's complaints were dismissed by the Pinnacle investigation. Ms Vafa has almost entirely failed to substantiate them in these proceedings. From his perspective, she had attacked him personally and professionally and without any substantial foundation for any of her complaints. The emotional temperature of their shattered relationship was extreme. His anxiety that she may continue her campaign against him by employing accusations of plagiarism - "kryptonite" in the research world - was not based on delusional paranoia. This is not, of course, to suggest that Ms Vafa had such intentions, only that he had a subjective, not unreasonable, basis for his fears.
5. In my view, this a case in which reasonable inferences can be drawn from the evidence that A/Prof Holdsworth's conduct constituted victimisation of Ms Vafa and that it constituted self-defence against her. It appears to me that it is not possible to determine on the evidence which is the more probable. The choice between them is a matter of conjecture: see Bradshaw v McEwans Pty Ltd at 5; TB v New South Wales at [85], [86]; Marshall v Prescott at [83].
6. Ms Vafa bears the onus of proof. I am not satisfied that she has discharged that onus. This allegation is not proven.

Summary

1. The complaint of victimisation made against A/Prof Holdsworth is not substantiated.

Victimisation: University

1. The ASFAPOC states that the University victimised Ms Vafa because of the series of complaints she made against A/Prof Holdsworth, the informal and formal complaints made to the University, her March 2018 appeal against the finding of the Pinnacle investigation, and her complaint to the Anti-Discrimination Board lodged in April 2018.

Allegation (a): "From about March 2018 until present, the University failed to provide Ms Vafa with the investigation report prepared by Pinnacle Integrity, in relation to Ms Vafa's first formal complaint."

1. In March 2018, after being informed by the University of the findings of the Pinnacle investigation, Ms Vafa requested the University to provide her with a copy of the report of that investigation. Since that time she has made repeated requests for that report.
2. Ms Vafa did not receive that report until it was produced by the University in answer to a summons issued at Ms Vafa's request in these proceedings. The University did not give A/Prof Holdsworth a copy of the report before it produced it in these proceedings.
3. The available evidence does not reveal why the University refused Ms Vafa's request. It was not suggested to any of the University's witnesses that the decision not to provide Ms Vafa with a copy of the Pinnacle report was that she had made complaints about A/Prof Holdsworth and/or the University. The available evidence does not reveal why the University refused Ms Vafa's request. Ms Vafa has not addressed the basis upon which an inference could be drawn that one of the real, genuine or true reasons the University refused to accede to Ms Vafa's request was that she had made complaints about A/Prof Holdsworth and/or the University.

Allegation (b): "Failed to carry out an investigation of the allegations in Ms Vafa's first formal complaint in a balanced and impartial manner and in accordance with the rules of natural justice."

Allegation (h) "In about May 2018, the University failed to carry out any, or any proper, investigation of Ms Vafa's internal 'appeal'."

1. It is convenient to consider these allegations together.
2. At [57] of her first affidavit, Ms Vafa set out the basis for the contention that Pinnacle failed to undertake a balanced and impartial investigation of her complaints against A/Prof Holdsworth.
3. A business partner with the University's Human Resources, Ms Lisa Fairlie, stated that because of the University's limited resources she decided to engage an external consultant to investigate Ms Vafa's formal complaint. She decided to engage Pinnacle because it had investigated several matters for the University in the past and, in her opinion, in each case had provided a fair and detailed assessment.
4. In 2018, the then chair of the University's Behavioural Risk Group, Professor Liz Burd, oversaw a misconduct allegation about Ms Vafa (see below). In the course of that investigation she reviewed the Pinnacle report. Professor Burd concluded that the report was satisfactory and offered an independent, reasonable and thorough assessment of Ms Vafa's complaints against A/Prof Holdsworth.
5. On 10 May 2018, Ms Vafa lodged an appeal with the Office of the Vice-Chancellor and President of the University in relation to the Pinnacle investigation and the review conducted by the University's Complaints unit of that investigation. In addition, Ms Vafa appealed the review conducted by the Complaints unit into various issues she had raised, including the University's decision that it was unable to award her a dual degree, and the alleged inadequate supervision and support provided to her in conducting her PhD research.
6. In a letter dated 5 July 2018, the University's Vice-Chancellor and President, Professor Caroline McMillan, informed Ms Vafa that she had considered and dismissed her appeal. Professor McMillan gave detailed reasons for her decision.

Findings

1. The criticisms made by Ms Vafa about the Pinnacle investigation are, in effect, an expression of disagreement with the facts found by Pinnacle and forensic decisions made by Pinnacle about the conduct of that investigation. The premise on which allegation (b) rests is not established.
2. The basis for the assertion that the University failed to "carry out any, or any proper, investigation" of Ms Vafa's internal complaint is unclear. The evidence suggests otherwise. Professor McMillan gave detailed reasons for her decision. Again, the allegation appears to be an expression of disagreement about the outcome of the appeal.
3. The premises on which allegations (b) and (h) rest is not established.
4. These allegations are not substantiated.

Allegation (c): "In about November 2017 to about March 2018, Jeffrey Hogan failed to exercise reasonable efforts to find a suitable alternative supervisor for Ms Vafa."

1. After meeting with Ms Vafa on 16 November 2017, A/Prof Hogan contacted three potential supervisors and gave their names to Ms Vafa the following day.
2. In January 2018, Ms Vafa contacted Professor Peter Stanwell who was then studying in the USA. He agreed to act as Ms Vafa's supervisor. On 1 February 2018 the University formally approved that arrangement.
3. There is no evidence to suggest that between the time A/Prof Hogan gave Ms Vafa the names of the three potential supervisors and Ms Vafa commenced negotiations with Professor Stanwell, Ms Vafa requested A/Prof Hogan for further assistance to find a replacement supervisor.
4. But even if, for argument's sake, it is suggested that the steps taken by A/Prof Hogan to assist Ms Vafa to find a suitable supervisor were inadequate, the evidence does not support a finding that, prior to Professor Stanwell's appointment, A/Prof Hogan was aware of Ms Vafa's complaint of sexual harassment.
5. Without evidence of such a nexus, this allegation must fail.

Allegation (d): "On or about 16 November 2017, Jeffrey Hogan informed Ms Vafa that her PhD candidacy would be terminated unless she was able to secure a new supervisor and new project within about 3 weeks, which was an unreasonable requirement."

1. On 16 November 2017, A/Prof Hogan notified Ms Vafa that if she was unable to find a replacement supervisor within one month, she would be asked to show cause as to why her candidature should not be cancelled, citing the Rules Governing Higher Degrees by Research (the Rules) issued by the University. Section 49 of those Rules authorises the Dean of Graduate Research to terminate candidature where the candidate is no longer able to undertake the agreed research project because "the candidate is unable to be supervised by appropriate supervisors and alternative supervisors cannot be found after reasonable efforts by the relevant officers". The Rules, however, do not stipulate that the alternative supervisor must be found within a month.
2. Given that it was the end of the academic year, requiring Ms Vafa to find a replacement supervisor within a month appears to be unreasonable. Nonetheless, for the reasons discussed above the evidence does not support a finding that when A/Prof Hogan informed Ms Vafa of that requirement that he was aware of Ms Vafa's allegation of sexual harassment. It follows that this allegation must fail.

Allegation (e): "On or about 24 November 2017, Jeffrey Hogan and/or other responsible employees of the University refused to approve and/or support the extension of Ms Vafa's scholarship on the basis of exceptional circumstances"

1. I understand this allegation to relate to the email sent on 24 November 2017 by A/Prof Hogan in answer to a question from Ms Vafa about whether it was possible for her scholarship to be extended if there was a delay in finding a supervisor. A/Prof Hogan advised that there was no provision for a scholarship to be extended beyond three and a half years, and a six-month extension could only be given in exceptional circumstances.
2. As is apparent from their email exchange, A/Prof Hogan was simply providing information in answer to a question from Ms Vafa. No decision was made or action taken by A/Prof Hogan. In my view it could not be said that by providing that information, A/Prof Hogan subjected Ms Vafa to loss or damage.
3. But in any event, given my finding that on 24 November 2017 A/Prof Hogan was unaware of Ms Vafa's complaint of sex harassment, this allegation must fail.

Allegation (f): "From about December 2017, the University restricted Ms Vafa's access to her office, research equipment and other personal equipment stored on the University's premises."

Allegation (g): "In about January 2018, after Ms Vafa raised concerns about her wellbeing and safety on campus, the University failed to provide her with appropriate support."

Allegation (j): "Between about October 2019 and about March 2020, the University failed to properly investigate and address Ms Vafa's allegation that a fellow student of the University, Nigel Walters, had used Ms Vafa's work without her permission and without acknowledgement of her work."

1. For convenience, I deal with Allegations (f), (g) and (i) together. While unrelated, they suffer from the same defect. Ms Vafa has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable and definite inference" could be drawn that one of the reasons for any of the alleged detriments was that Ms Vafa had made complaints about A/Prof Holdsworth and/or the University.

Allegation (i): "In or about July 2018, the University failed to provide Ms Vafa with equipment that had been purchased to support her research, being a new PC and key."

1. Ms Vafa claims, contrary to the evidence given by A/Prof Holdsworth and corroborated by Professor Johnston, that she was not provided with a new Alienware PC and key (see Allegation (h) as against A/Prof Holdsworth). If, for argument's sake it is assumed that those alleged facts are established and a detriment was suffered, I am again without an evidentiary basis connecting the detriment and the complaints about A/Prof Holdsworth and/or the University. The allegation fails for that reason.

Allegation (k): "In about March 2020, the University delayed Ms Vafa's thesis examination and/or provided for a thesis examination timeframe of 12 weeks whereas the usual timeframe is 8 weeks."

1. The alleged conduct falls outside the temporal scope of the second complaint, as determined by the President of the Anti-Discrimination Board (26 October 2018 to 31 December 2019). Therefore, I do not have power to determine this allegation.
2. In any event, A/Prof Kylie Shaw gave unchallenged evidence that students are advised that examination of a thesis can take between three to six months. Nor was it suggested to A/Prof Shaw that one of the reasons for the purported delay was because she had made complaints about A/Prof Holdsworth and/or the University.

Allegation (k): "Or or about 6 September 2018, the University issued Ms Vafa with a Notice of Alleged Misconduct."

Allegation (l): "On or about 3 October 2018, the University determined that Ms Vafa had breached a Student Conduct Rule and imposed a penalty upon her."

Allegation (m): "On 22 October 2018, the University failed to uphold her appeal of the determination."

1. On 13 March 2018 Ms Fairlie informed Ms Vafa of the outcome of the Pinnacle Inquiry, relevantly that: 1. the complaint of sexual harassment was not substantiated; and 2. the allegation that she had been poked in the arm as a form of rebuke was substantiated.
2. In July and August 2018, Ms Vafa sent a series of emails to over 20 members of University staff to the effect that her complaint of sexual harassment against A/Prof Holdsworth had been upheld by the University.
3. After reviewing that correspondence, Professor Liz Burd, then Pro-Vice Chancellor of the University, concluded that Ms Vafa's claims were false. Citing correspondence received from Ms Vafa in which she stated that she disagreed with the conclusion reached by Pinnacle that she had not been sexually harassed and challenged the definition of sexual harassment used by Pinnacle, Professor Burd concluded that Ms Vafa understood that Pinnacle had found her complaint of sexual harassment not proven.
4. Professor Burd formed the view that Ms Vafa's behaviour contravened the University's Student Conduct Rule, as it "adversely impacted the reputation of the University and a staff member".
5. On 6 September 2018, the University issued Ms Vafa a show cause notice and invited her comment on its preliminary finding that: (i) she had falsely claimed that her complaint of sexual harassment had been substantiated, and (ii) that conduct constituted "non-academic misconduct" under the Student Conduct Rule. In addition, the University informed Ms Vafa that several risk mitigation measures had been put in place to reduce the possibility of her "encountering situations that you claim make you feel unsafe": 1. A/Prof Holdsworth had been instructed that the Hunter building was Ms Vafa's work area. He had agreed not to access it; 2. A/Prof Holdsworth's place of work was the Physics building and she was directed not to access that building; 3. A/Prof Holdsworth and Ms Vafa were not to have contact with the other.
6. In a detailed response to the University, dated 19 September 2018, Ms Vafa disagreed that she had falsely claimed that her complaint of sexual harassment had been substantiated. In addition, Ms Vafa claimed that on 13 March 2018 Ms Fairlie informed her that her complaint had been upheld. In these proceedings, Ms Fairlie refuted that claim and stated that when she met with Ms Vafa in March 2018, she had read out each of the findings made by Pinnacle. Ms Fairlie stated that, based on Ms Vafa's response at the time, she was confident that Ms Vafa had understood the information conveyed. In addition Ms Fairlie pointed to the written report given to Ms Vafa confirming that Pinnacle found her complaint of sexual harassment not proven.
7. In a letter dated 3 October 2018, the University advised Ms Vafa that a decision had been made that by falsely claiming her complaint of sexual harassment had been substantiated she had breached the Student Conduct Rule and any further breach might result in the termination of her enrolment at the University.
8. Ms Vafa appealed against that decision. The University dismissed that appeal.

Conclusion

1. Ms Vafa did not make any submissions to explain the basis for her contention that one of the reasons the University found her guilty of misconduct and dismissed her appeal was that she had made complaints about A/Prof Holdsworth and/or the University. This allegation is not substantiated.

Allegation (o): "Between November 2017 to present, the University has failed to appropriately address Ms Vafa's concerns about her candidacy and program."

1. Ms Vafa has made several allegations about the University's purported failure to address her concerns about her candidacy. She has not identified which of those concerns were not addressed by University staff nor, more to the point, which of those concerns were not addressed because she had made complaints about A/Prof Holdsworth and/or the University.
2. Allegation (o) is not established.

Allegation (p): "Between November 2017 to present, the University has failed to facilitate the provision to Ms Vafa of a statement of technical expertise from A/Prof Holdsworth."

1. For the reasons discussed in relation to Allegation (h) as against A/Prof Holdsworth the premise on which this allegation is based is not established.

Allegation (q): "Between March 2018 and May 2019, the University's employees have made disparaging remarks about Ms Vafa."

1. I have proceeded on the assumption that the purported disparaging remarks the subject of this allegation are those identified in Ms Vafa's first affidavit at [78]-[82]. Those remarks were made by Ms Fairlie, Professor Burd, Ms Jarvie and Ms Savy.
2. It was not suggested to Ms Fairlie or Professor Burd, that the offending remarks they made were related in some way to the complaints made by Ms Vafa. As with Allegation (o), Ms Vafa has not made any submissions which might assist me to understand the basis upon which an inference could be drawn that one of reasons that any of above employees made those remarks was that Ms Vafa had made a complaint about A/Prof Holdsworth and/or the University.

Allegation (r): "In about 2018, the University unilaterally assigned Ms Vafa a co-supervisor, Suzanne Snodgrass, without consultation with or agreement from Ms Vafa."

1. On 22 February 2018, Ms Vafa was informed by the University that, effective from 1 February 2018, changes had been made to her supervisory arrangements: her principal supervisor (50%) would be A/Prof Stanwell and co-supervisor (10%) would be A/Prof Suzanne Snodgrass.
2. A/Prof Stanwell had recommended A/Prof Snodgrass' appointment. He stated that he did so to enable data collected from a project he was working on with A/Prof Snodgrass to be used by Ms Vafa in her research. He stated that the intellectual property and expertise A/Prof Snodgrass had shared with him in relation to that data made it necessary for a small proportion of Ms Vafa's supervision to be shared between himself and A/Prof Snodgrass.
3. In cross-examination, A/Prof Stanwell disagreed with the proposition that he had not discussed with Ms Vafa his recommendation about A/Prof Snodgrass prior to her appointment.
4. Further, A/Prof Stanwell stated that when he agreed to take on the role of Ms Vafa's principal supervisor, he had no knowledge of her complaint about A/Prof Holdsworth. He stated that in his experience of supervising honours, masters and PhD students since 2013 conflict between supervisors and students is not uncommon. He stated he only became aware of Ms Vafa's complaint in these proceedings.

Findings

1. I understand the purported detriment in relation to this allegation to be A/Prof Stanwell's alleged failure to raise with her his recommendation that A/Prof Snodgrass be appointed, before that appointment was made. For current purposes I will assume but not decide that, as claimed, Ms Vafa first learned of that appointment on 22 February 2018.
2. I accept A/Prof Stanwell's claim that he was unaware of Ms Vafa's complaints about the University and A/Prof Holdsworth when he decided to recommend A/Prof Snodgrass' appointment. He gave a plausible explanation for recommending A/Prof Snodgrass' appointment. There was no evidence to cast doubt on it. I have not been referred to any material which might assist to explain the basis for the assertion that the decision to appoint A/Prof Snodgrass, or the manner that appointment was made, was related in some way to the complaints Ms Vafa made about A/Prof Holdsworth.
3. Allegation (r) is not proven.

Summary

1. The complaint of victimisation made against the University is not substantiated.

Orders under s 108 of the AD Act

1. Ms Vafa made detailed submissions about the appropriate form of orders to be made under s 108 of the AD Act. Those submissions were made on the assumption that the complaint would be substantiated. In circumstances where a single allegation of sexual harassment is proven in my view the parties should be given a further opportunity to make submissions about the appropriate form of orders.
2. In my view the matter can be adequately addressed "on the papers" by brief written submissions without the need for a further hearing as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).
3. The parties are requested to confer and to provide the Tribunal with an agreed timetable within two weeks of the date of this decision. In addition they are requested to advise whether in their view the matter can be adequately dealt on the papers.

Orders 1. Allegation 8 of the complaint of sexual harassment as against A/Prof Holdsworth is substantiated. The balance of the complaint of sexual harassment as against A/Prof Holdsworth is not substantiated and is dismissed. 2. The complaint of sex discrimination as against the University is not substantiated and is dismissed. 3. The complaint of sex discrimination as against A/Prof Holdsworth is misconceived and is dismissed. 4. The complaint of victimisation made against the University is not substantiated and is dismissed. 5. The complaint of victimisation made against A/Prof Holdsworth is not substantiated and is dismissed.

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 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. Decision last updated: 24 May 2022