Vafa v University of Newcastle

Legislative framework

1. Section 103 of the Act provides as follows: 103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
2. The Tribunal has a discretion to permit a complainant to amend the complaint pursuit pursuant to section 103 of the Act at any stage in proceedings and to include additional complaints that were not included in the complaint as investigated by the President, Anti-Discrimination New South Wales. The amendment may be made subject to such conditions as the Tribunal sees fit.
3. In Chand v Rail Corporation of New South Wales NSWADTAP 54 at [37]-[38], the Appeal Panel of the then Administrative Decisions Tribunal set out considerations to which the Tribunal may have regarding considering whether or not a complaint may be amended as sought as follows: "37. The ordinary grammatical meaning of s 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal's decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President. 38. There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added."

Consideration

1. The Tribunal has considered the written and oral submissions of both parties.
2. The complaints sought to be added to the existing claims arise out of the candidature of the complainant at the University, so are connected with the subject matter of the present complaint.
3. Although Anti-Discrimination NSW has not investigated or conciliated the possible amendments to this claim, the Tribunal notes that the present complaint was referred as not being capable of conciliation.
4. There is merit in all of the complaints that may constitute a breach of the Act being determined in the one hearing. That will not be the case here. There has already been a hearing in relation to some complaints by the applicant against the respondents and she has lodged a second complaint that she now seeks to amend. She also says that if she is not permitted to amend her present complaint, she will lodge a further complaint with Anti-Discrimination NSW.
5. If the applicant were to lodge a further complaint, Anti-Discrimination NSW must make a determination pursuant to s89B(2)(b) as to whether to accept for investigation, or decline a complaint in relation to conduct that, in part or in whole, occurred more than 12 months prior to the date of the complaint. Section 89B(4) provides that a decision a decision made under s89B is not reviewable by the Tribunal.
6. Permitting the applicant to amend her present complaint would obviate further delay in having matters concerning the university and its employees dealt with. This is a factor that should be given significant weight in this case.
7. On the other hand, the fact that the applicant has already lodged an application that dealt with matters that occurred in 2018 and that those matters are presently before the Tribunal, is a matter that ought also to be considered in the exercise of the Tribunal's discretion as to whether and, if so, on what terms, the applicant may be permitted to amend her claim.
8. To permit the applicant to amend her complaint regarding conduct that occurred within the period 1 August 2015 through to 24 October 2018 risks duplication with issues that are presently before the Tribunal and in relation to which a hearing has taken place.
9. The respondent objects to the complaint being amended at all, on various grounds, including the argument that some of the annexures to the submissions of the applicant in support of her application to amend the complaint do not, in themselves, "prove" the allegation that she makes. The Tribunal notes, however, that it is appropriate to consider that the applicant may also provide her own oral evidence as to what occurred and may yet provide further evidence in support of the allegations she makes.
10. The Tribunal accepts the argument of the respondent that the documents provided by the complainant that are said to support her proposed amendments do not necessarily, in themselves, provide sufficient evidence of her claim to be satisfied that she will be successful. They may, however, constitute material that could be taken into account by the Tribunal in determining whether or not the allegations are made out.
11. In a claim on victimization the applicant needs to prove, on the balance of probabilities, that she was victimized because of the complaints she had made under the Act, as set out in s50 of the Act, as set out below. 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.
12. The term "on the ground that" is not defined in the Act but case law has established that other expressions such as "due to" or "because of" approximate the meaning of "on the ground of" and, in my view, "on the ground that".
13. Unless the applicant can satisfy the Tribunal on the basis of the evidence and on the civil standard of proof that the behaviour said to constitute victimisation occurred "on the ground that" the previous complaints of discrimination and harassment were made, the claim will not found to have been established.
14. In terms of the law of inference, the Tribunal will be unlikely to draw an inference in relation to causation if a more innocent and probable explanation is accepted, as set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. The other considerations to which the Tribunal may have regard are also set out in Dutt at [70].
15. The application to amend is an interlocutory application and it is not the role of the Tribunal at this stage to determine whether or not the claims made in the proposed amendments are made out.
16. There are no issues of joinder.
17. The claim made under the Privacy and Personal Information Protection Act 1998 will be separately determined. s88B of the Act states that the Tribunal must have regard to the outcome of any such proceedings in determining the complaint, a measure that can prevent "double dipping" in terms of compensation or other remedies. The learned authors Rees, Rice and Allen state in Australian Anti-Discrimination Law, the Federation Press, 2014 second edition at 12.12.5 that s88B "is also designed to permit people who experience discrimination in the workplace to invoke the remedies provided by employment laws as well as those available under anti-discrimination law" in relation to the same conduct. That reasoning is also applicable in relation to privacy matters.
18. Of itself, the fact that the claim under the Privacy and Personal Information Protection Act 1998 has been brought does not prevent the Tribunal permitting amendment of this complaint. In any event little evidence was led by either party as to precisely how the claim pursuant to that Privacy and Personal Information Protection Act 1998 may overlap with this one, if at all.

Determination

1. The Tribunal has determined that it is appropriate to permit the applicant to amend her complaint in relation to any conduct which is alleged to constitute victimisation and which is alleged to have occurred after 24 October 2018 (the last date in the period accepted by Anti-Discrimination NSW as the period of the earlier complaint). This will avoid the need for the applicant to lodge a fresh complaint with the President in relation to such alleged conduct since 24 October 2018, with the attendant delay that would cause.
2. Permitting amendment only from that date should also ensure that there is no duplication in this complaint with matters dealt with in the previous complaint under this Act, in relation to which a decision is presently reserved.

Orders 1. The applicant is permitted to amend the complaint in relation to any conduct alleged to constitute victimisation and to have occurred after 24 October 2018. 2. The matter is listed for further Directions on Tuesday 30 November 2021 at 3pm.

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: 19 November 2021