ZDB v The University of Newcastle

ZDB v The University of Newcastle - [2017] NSWCATAP 70 - NSWCATAP 2016 case summary — Zoe

[4]

The Appeal

The appellant lodged his notice of appeal on 8 September 2016 against the Tribunal's decision made on 11 August 2016. This was within the 28 day period established by r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW). The decision made by the Tribunal was a decision made in proceedings for a general decision, within s 32(1) of the NCAT Act, and thus was an internally appealable decision for the purposes of s 32 and s 80 of the Act. As the decision was a final decision, the appellant was entitled to appeal as of right on any question of law and by leave on any other grounds, s 80(2)(b) of the NCAT Act.
The appellant's grounds of appeal were set out in a 21 page document attached to the notice of appeal, at pars 33 to 102. These paragraphs also included material by way of submission. We deal with what we discerned to be the distinct grounds of appeal raised in those paragraphs later in these reasons.
The appellant sought, at par 104 of the document, the following orders on the appeal: "i. The appeal panel should set aside all the decisions and reasons of the tribunal ii. Extend the appeal to the merits of the tribunal decision … iii. Conduct the matter of the appeal by way of a re hearing by the appeal panel iv. Order costs of running this proceeding by the appellant. Cost be assess by a cost assessor appointed pursuant to Division 6 of part II of the legal Profession Act 1987. Alternative orders v. Set aside the decision of the tribunal and remit the mater back to the tribunal for reconsideration and determination in accordance with law. vi. Order costs of running this proceeding by the appellant. Cost be assess by a cost assessor appointed pursuant to Division 6 of part II of the legal Profession Act 1987. vii. The tribunal did not comply with the procedural rules in conducting the proceeding by not adjourning the hearing at the end of 5 February 2016 as the hearing had not been concluded. The tribunal failed to comply with the provision of the Civil and Administrative Tribunal Act 2013, section 51. The appeal panel should set aside the decision of the tribunal as there was irregularity in the conduct of the hearing and did not follow s.53(4) of the Civil and Administrative Tribunal Act 2013."
Finally, in the document attached to the notice of appeal at pars 105 to 123 under the heading "Leave to appeal:", the appellant set out what appears to be a summary of the grounds of appeal as follows: "105. The finding was not on the evidence for its decision at paragraph 70, 80, 81, 83, 91, 92, 98, 99, 106. The finding of fact was, "inconsistent with the facts incontrovertibly established by the evidence" or "glaringly improbable" 107. Its decision at paragraph 60, 80, 81, 82, 83, 84, 85, 88, 89, 91, 92, 93, 95, 96, 98, 99 108. By amending the pleading of my supervisors at the hearing after the submission of all evidence by the parties the tribunal made injustice to the applicant. 109. By not granting adjournment to the appellant 110. By not conducting the hearing according to its jurisdiction 111. By not applying the legal test of causation 112. By not applying the legal test of less favorable treatment 113. By not applying the legal test of circumstance identification 114. By misconstruing or not taking relevant consideration in the interpretation of reasonableness in indirect discrimination 115. By not considering all the applicants evidence 116. No comparator test undertaken 117. Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party 118. The fact finding is perverse 119. Identified the wrong issue 120. Asked the wrong question 121. The member misconceived the interpretation of discriminatory conduct and less favourable treatment 122. The Tribunal took assumptions 123. Comparator ground. The Tribunal failed to take a comparator, either actual or hypothetical. "
The University filed its reply to appeal on 26 September 2016. In substance, the University responded to the grounds of appeal by: 1. Noting that the grounds of appeal the appellant relied on were unclear and reserving its position in the light of any further clarification; 2. Contending that no questions of law had been identified or substantiated nor had any basis for granting leave to appeal on any other grounds been satisfied; 3. Contending that the appellant was attempting to agitate matters already considered at first instance, not raised at first instance or not properly raised on appeal; 4. Contending that the appellant was seeking to rely on fresh evidence and this should not be permitted nor should it be a basis for granting leave to appeal; and 5. Seeking to have the appeal dismissed with costs.
On 27 September 2016, the Appeal Panel made directions to prepare the appeal for hearing. The unsatisfactory form of the grounds of appeal was raised on that occasion. The Appeal Panel's directions included leave to the appellant to file an amended notice of appeal. This amended notice of appeal was expressly required to set out clearly: "(a) The grounds of appeal; (b) The errors claimed to exist in the decision under appeal; (c) The specific questions for determination on appeal".
The amended notice of appeal, together with written submissions on the appeal, was due by 18 October 2016.
At the request of the appellant, on 14 October 2016 the Appeal Panel extended the time for the appellant to file an amended notice of appeal and submissions to 26 October 2016.
The appellant did not provide an amended notice of appeal and did not provide submissions by 26 October 2016 or after. The University provided its written submissions on 16 November 2016 in compliance with the revised directions.
An application for an adjournment by the appellant, heard by a differently constituted Appeal Panel on 24 November 2016, was refused and oral reasons for that decision were given at that time.

[5]

The appeal hearing and further written submissions

When the appeal came on for hearing on 1 December 2016, the appellant applied for another adjournment. For the reasons we gave orally at that time, we refused the adjournment. When called upon to make submissions, however, the appellant said that he did not feel able to do so because of his disability.
Noting that the appellant had already made extensive submissions in the 21 page document attached to the appellant's notice of appeal, we proceeded to hear the University's oral submissions. We then made a timetable for the appellant to put any further submissions he wished to make in writing. The University was given the opportunity to reply in writing.
Our orders made at the end of the oral hearing on 1 December 2016 were as follows: "ORDER 1. The Appeal Panel orders under s 64 of the Civil and Administrative Tribunal Act that the name of the appellant not be disclosed in any published documents relating to this appeal. 2. Subject to the directions below, the Appeal Panel reserves its decision. DIRECTIONS 3 The appellant is to give to the Tribunal and the respondent the appellant's written submissions on the appeal on or before 5 January 2017. 4 The respondent is to give to the Tribunal and the appellant the respondent's further written submissions on the appeal on or before 19 January 2017. 5 The appellant is to give to the Tribunal and the respondent any submission in reply on or before 27 January 2017. 6 The submissions referred to in directions 1, 2 and 3 are not to exceed 15 pages in length."
On 16 January 2017, the Tribunal received an application from the appellant headed "VERY URGENT decision needed before 19 January 2017 - APPLICATION". From that application, it appeared to us that the appellant was saying that he could not comply with the requirement to provide written submissions by 5 January 2017 and he sought an amended timetable as follows: "1. Appellant submission due on: 17 January 2017 2. Respondent submission due on: 31 January 2017 3. Appellant to respond to the respondent's submission on: 2 October 2017."
The application did not specifically explain why a "VERY URGENT decision [was] needed before 19 January 2017", why the particular dates had been chosen or why any submissions in reply by the appellant should be delayed by 9 months to 2 October 2017, as he proposed. It did include the statement: "The illness [from which the appellant said he suffered] has a symptom of head ache, dizziness, concentration, deficit to cognition, pronounced low mood, deficit to organizational ability, Sleep difficulty (erratic sleep), affects petite."
The University opposed the application.
In the absence of clear information, we proceeded on the basis that the appellant may have still been unable to provide his written submissions within a few days of 16 January 2017 because of his disability. Bearing in mind s 38(5)(c) of the NCAT Act, we decided to extend the times specified in our directions made on 1 December 2016 in order to ensure that the appellant had every reasonable opportunity to prepare his submissions and have them considered in these proceedings. On 19 January 2017, we made orders as follows: "1. The time by which the appellant … is to comply with direction 3 is extended to 28 January 2017. 2. The time by which the respondent … is to comply with direction 4 is extended to 11 February 2017. 3. The time by which the appellant … is to comply with direction 5 is extended to 25 February 2017."
At the time we made these orders, unfortunately, we were not aware that the appellant: 1. had filed with the Tribunal on 17 January 2017, a 15 page document dated "January 4, 2016 [we assume this should be 2017]" headed "Appellant's Brief" (plus a large number of Annexures); and 2. had filed, or was about to file, on 19 January 2017, a 1 page document dated "January 5, 2016 [once again we assume this should be 2017] headed "Appellant's Brief" (plus further Annexures).
When making the extension orders on 19 January 2017, we were also unaware that the University had filed or was about to file on that day its Further Submissions on Appeal, in response to one or both of the two documents referred to in the preceding paragraph.
If we had been aware of those documents filed on 17 and 19 January 2017, we would not have made the extension orders that we did. Notwithstanding this, there did not appear to us to be any benefit in revoking those orders when we became aware of the documents. Neither party made an application seeking such a revocation.
Even though the appellant filed quite extensive documentation on 17 and 19 January and was given an extension of time to file further documents to 28 January 2017, the appellant filed a further 3 documents on 7 February 2017, together with 3 covering letters dated 25 January 2017, as follows: 1. a 24 page document dated "January 5, 2017" headed "Appellant's Brief" together with annexures. One of the covering letters said: "The cover letter serves for submission of 'APPELLANT'S BRIEFS', 'OUTLINE OF THE CASE' and 'ISSUES FOR DETERMINATION' all of these filed on the same day of on 6 February 2017." Another of the covering letters explained that this version of the "Appellant's Brief" was intended to be a substitute for the document with the same heading filed on 17 January 2017 which was said to contain "typographical and non-typographical errors"; 2. a 4 page document dated 25 January 2017 headed "Issues for determination"; 3. a 10 page document dated 25 January 2017 headed "Outline of the case". Another of the covering letters explained that this document was intended to be a substitute for the document with the same heading filed on 1 December 2016. The later document was said to correct "typographical and non-typographical errors" in the earlier document. It can be noted that the appellant tendered the 1 December 2016 version on the adjournment application made on that day. It became Ex B on that application.
Given the nature of the documents, the obvious difficulties the appellant has in articulating his case and the fact that it is in the interests of all parties and the Tribunal to have this matter brought to finality, we propose to allow the appellant to rely on this documentation, which was not provided in conformity with the Tribunal's directions.
By taking this approach, we should not be thought to be accepting that the appellant's failure to comply with directions, his lack of clarity as to his precise grounds of appeal and the various applications for adjournments or extensions of time have not caused delay, difficulty and additional expense for the University.

[7]

The complaint and the issues at first instance

The appellant lodged a disability discrimination complaint with the Anti-Discrimination Board (ADB). The President of the ADB referred the complaint to the Tribunal. The President of the ADB noted in his Report that the complaint was one of disability discrimination in education, the sections of the AD Act allegedly breached were ss 49A to 49C and s 49L and the liability was said to be "primary".
The appellant represented himself before the Tribunal, as he did on appeal. At an early stage, the Tribunal below directed him to file points of claim. He did not do so. At the hearing in the Tribunal below, considerable time was taken up trying to clarify how in particular the appellant alleged that he had been discriminated against. As recorded in the Tribunal's reasons for decision at [3], on the third day of hearing, the nature of the direct discrimination complaint was reduced to writing.
The Tribunal at first instance recorded how it understood that the appellant put his case on direct and indirect discrimination at [4] and [5] of its reasons, as follows: "4. The [appellant] complains that the University's Dean of Graduate Studies, Associate Professor Abbo, treated him less favourably, on the grounds of his disability, than the Professor did or would have treated persons without the [appellant's] disability, in three ways: 1. by failing to obtain 'intervention strategies' to assist him, 2. by failing to invite or require him to show cause why his candidature ought not be terminated, and 3. by referring him to Rule 42 of the rules governing Research Higher Degrees at the University - which contains a right of appeal of which the applicant availed himself but which, the parties agree, did not apply in the applicant's case. 5. The [appellant] also complains that the University discriminated against him indirectly, by requiring him to obtain a minimum of 75% in each of his two courses. He says this is a requirement with which a substantially higher proportion of people without his disability comply or are able to comply than the proportion of people with his disability. Though the disability was not precisely defined by the [appellant], he adduced medical evidence that in 2012 he had suffered from a psychological condition whose symptoms included depression, and that from February 2013 he had suffered from a major depressive illness."
In addition, the Tribunal recorded at [9]: "9. The [appellant] made many submissions to the effect that in cancelling his enrolment in the way that it did, the University breached its own Code of Practice and rules, and at least one external code binding on it. The Tribunal explained to him at hearing that its function was not to conduct a merits review of the University's decision to cancel his enrolment, but to determine complaints of direct and indirect discrimination."
In relation to the claims of direct discrimination, the Tribunal below also noted the University's position at [7]. The University accepted that: 1. Prof Abbo did not implement any strategies for intervention to assist the appellant and did not afford the applicant an opportunity to show cause why his candidature ought not be terminated; 2. Prof Abbo did refer the appellant to Rule 42 of the rules governing research higher degrees at the University which contained a right of appeal and the appellant availed himself of that right even though, as was agreed between the parties, that rule did not apply to him.
The University's defence to the direct discrimination claims was that: 1. Prof Abbo did not do or fail to do any of those things on the ground of the appellant's disability because Prof Abbo was not aware of that disability at the relevant time; 2. Even if any of these actions or omissions had been motivated, in part, by a knowledge of the appellant's disability, the appellant was not subjected to a detriment, because Professor Abbo would have treated anyone without the relevant disability in the same way, in the same circumstances - that is, where a student on a scholarship had failed to comply with a condition of enrolment.
As to the indirect discrimination complaint, the University's position was recorded at [8] as being that there was no evidence to support the conclusion that the imposition of a 75% minimum mark was one with which persons without the relevant disability more readily complied or were able to comply. Further, from the evidence adduced by the University and the reasons of the Tribunal at [99], it is apparent that the University also contended that the imposition of such a condition was reasonable and thus not "not reasonable having regard to the circumstances of the case" as referred to in s 49B(1)(b) of the AD Act.
The issues for determination identified by the Tribunal at first instance at [12]-[14] of its reasons were consistent with the positions of the parties set out above.

[9]

The facts as found at first instance

By letter of 28 September 2011, the University offered the appellant a place in the masters degree program in Chemical Engineering. The letter indicated that the program fee of $48,080 was waived by virtue of the award of a scholarship, that he would have two supervisors and that he would be required to obtain at least 75% in two subjects (1) Thermodynamics and (2) Kinetics and Reaction Engineering, in the 1st semester of 2012. (Reasons [19])
To complete the research work for the masters degree in which the appellant was enrolled, a student must possess a solid understanding of the fundamental concepts of chemical engineering including thermodynamics, kinetics and reaction engineering. These were taught in the undergraduate subjects Thermodynamics and Kinetics and Reaction Engineering. Five other masters degree students in Chemical Engineering were also required to achieve a minimum of 75% in these subjects. The purpose of imposing such a condition was to ensure that students attempting a masters degree have sufficient knowledge and understanding of the key principles of chemical engineering. If students are not able to satisfy the 75% requirement, they will be unlikely to complete their masters degree. (Reasons [22] - [24], [51], [64]).
On 10 January 2012, Dr Altarawneh was appointed principal supervisor of the appellant, with Prof Dlugogorski as co-supervisor. This was communicated to the appellant on 21 February 2012 by email. (Reasons [20], [49])
In July 2012, the appellant sat exams in Thermodynamics and in Kinetics and Reaction Engineering. He obtained results of less than 60 per cent in both. During each exam, a fire alarm had been activated. The appellant applied for special consideration pursuant to the University's Adverse Circumstances Affecting Assessment Items Policy and was granted special consideration. Although the exams were rescheduled, the appellant did not sit them. Accordingly, he was recorded as having failed both exams. (Reasons [27])
Prior to 24 August 2012, the appellant showed Dr Altarawneh a medical certificate. Dr Altarawneh advised the appellant to take more time off study if he felt he was not fit to continue. The certificate was either the medical certificate signed by Dr Murugusasu, a general practitioner of University Health Service dated 29 June 2012 or a letter from Dr Schien, also a GP with the University Health Service, of 2 August 2012. Neither of these specified a diagnosis of depression or mental illness. (Reasons [25] - [26])
On 24 August 2012, Dr Altarawneh and Prof Dlugogorski met with the Dean of Graduate Studies, Prof Holmes, and a Senior Graduate Studies Officer, Mr Horan. At the meeting, the appellant's supervisors were shown a medical certificate of 24 August 2012 from a general practitioner, Dr Patel, and a letter of referral from Dr Patel to a psychiatrist, Dr Raggatt. (Reasons [28], [53])
Dr Patel's certificate stated that the appellant had been suffering from a "medical condition" and would be unfit for work until 21 October 2012. In his letter of referral, Dr Patel said, among other things, that the appellant was experiencing symptoms of depression and had started to take a prescribed anti-depressant medication a month earlier with poor response. The letter recorded that Dr Patel had advised the appellant to take time off from study. (Reasons [29])
Prior to the meeting on 24 August 2012, neither Dr Altarawneh nor Prof Dlugogorski knew that the appellant suffered from depression. (Reasons [31], [53])
In a letter dated 28 August 2012, addressed "to whom it may concern", Dr Patel stated that he first saw the appellant on 18 July 2012 with a 6-month history of poor sleep, weight loss, and feeling unhappy. He was due to see Dr Raggatt on 13 September 2012. Dr Patel expressed the opinion that the appellant's mental illness, described as "depression", had had a profound impact on his studies and caused him to perform poorly. (Reasons [32])
On 11 September 2012, Prof Holmes wrote to the appellant. In his letter, Prof Holmes noted that the offer of admission included the condition that the appellant obtain a minimum of 75% in the two courses referred to above. After referring to Dr Patel's certificate and the letter of 28 August 2012, Prof Holmes strongly recommended to the appellant that he take a leave of absence for the remainder of 2012 so that he could "get well before resuming [his] studies". Prof Holmes indicated that, if the appellant elected to take leave, his scholarships would be suspended during the leave period and his confirmation of enrolment would be cancelled. Prof Holmes also told the appellant that he would require a doctor's letter confirming that he was fit to resume study "before [his] enrolment for 2013" and that he would still be required to obtain 75% in each of the two coursework subjects or his enrolment would be cancelled. (Reasons [33])
In a letter dated 19 September 2012, from Mr Horan to the appellant, Mr Horan confirmed that the appellant had accepted Prof Holmes's recommendation to take leave, indicated that the appellant's candidature was suspended from 26 September 2012 and noted that leave of absence had been approved. Mr Horan also said that the overall scholarship tenure would not be affected, but that before re-enrolment in 2013, the appellant was required to "provide a letter from [his] Doctor to state that [he has] recovered from [his] illness and [is] in a position to continue with [his] studies." Finally, Mr Horan noted that upon his return to his studies the appellant would still be required to achieve a minimum of 75% in the two coursework subjects. (Reasons [34])
On 21 December 2012, Dr Raggatt wrote a letter to the School of Chemical Engineering. That letter included the following: (Reasons [35]) "I write to confirm that [the appellant] is entirely fit to resume his studies in post-graduate engineering."
A notation on the letter indicates that the Office of Graduate Studies received it on 16 January 2013. (Reasons [36])
On or around 30 January 2013, the appellant resumed his studies under the supervision of Dr Altarawneh and Prof Dlugogorski. Although Dr Altarawneh had not seen Dr Raggatt's letter of 21 December 2012, he knew that such a report was a requirement prior to the appellant recommencing study. He assumed that the appellant had provided the relevant report and his understanding was that the appellant "was fit to resume his studies and did not have any ongoing issues regarding his health". (Reasons [37])
Similarly, Prof Dlugogorski did not see Dr Raggatt's letter of 21 December 2012. But, when the appellant resumed his studies in early 2013, Prof Dlugogorski understood that there were no health issues affecting the appellant's performance, because he knew the appellant had been required to provide a doctor's letter indicating his fitness to resume study, and assumed - rightly - that the appellant had complied with that requirement. (Reasons [56])
On 14 February 2013, Senior Graduate Studies Officer, Ms Percival, emailed the appellant confirming his enrolment for Semester 1, 2013 and reminded him of the 75% minimum grade requirement for the two coursework subjects. (Reasons [38])
In a mid-year report on the appellant prepared in June 2013, the appellant rated his overall progress as "good" but indicated that there were barriers affecting his progress. The appellant did not specify the barriers referred to. Dr Altarawneh and Prof Dlugogorski, in their section of the report, among other things, rated his overall performance as "poor", noting little improvement from the previous year. (Reasons [41] - [43])
Prior to the 2013 exams in the two coursework subjects, the appellant did not complain to Prof Dlugogorski of depression. Neither the professor nor Dr Altarawneh was aware, immediately before and at the time of the 2013 exams, that the appellant's performance was affected by depression. (Reasons [45], [60])
In July 2013, the appellant sat the exams in his two coursework subjects. He failed to satisfy the 75% minimum requirement, obtaining 69% in Thermodynamics and 67% in Kinetics and Reaction Engineering. (Reasons [45])
On 18 July 2013, Prof Dlugogorski informed Prof Stockenhuber of the School of Engineering by email that the appellant had failed to meet the 75% requirement in the two coursework subjects. (Reasons [61])
On 29 July 2013, Prof Stockenhuber asked Professor Dlugogorski to comment on the applicant's ability to undertake a PhD. (Reasons [61])
On 30 July 2013, Prof Dlugogorski replied by email: (Reasons [61]) "The student has no such ability. He has difficulty grasping simple concepts is unable to work independently and has no ability to design his experimental apparatus or to perform calculations. He operates at a level of a below-average undergraduate student. He has no ability for critical thinking and lacks knowledge in the discipline. His weekly reports are usually at the level of a high school student. This is reflected in him being unable to meet the entry requirements. There have [sic] been very little or no improvement in his performance this year besides him starting to come to work and no change in his abilities since he arrived in Newcastle. We have reported all these problems in the student's reports. All work has to be done for him either by me, [Prof Altarawneh] or technicians."
On 30 July 2013, Prof Abbo, who had then succeeded Prof Holmes as Dean of Graduate Studies, reviewed the appellant's mid-year report. Professor Abbo recommended further scrutiny and investigation and queried whether the appellant should be required to "show cause". (Reasons [44])
On about 1 August 2013, Prof Dlugogorski's email of 30 July 2013 was copied to Prof Abbo.
On 1 August 2013, Prof Abbo decided to cancel the appellant's enrolment in the masters degree and wrote to the appellant in the following terms: (Reasons [46], [62], [68]) "Your offer of admission to the Master of Philosophy (Chemical Engineering) dated 28 September 2011 detailed a condition that you undertake CHEE3320 - Thermodynamics and CHEE4320 Kinetics and Reaction Engineering in Semester 1, 2012 and obtain a grade of 75% for each. Rule no 8 of the Rules Governing Higher Research Degrees states: 8. Any conditions stated in the offer of admission must be met. Failure to do so may result in cancellation of candidature. You received a fail result in both of these courses on your first attempt and you were provided with a further opportunity to meet these requirements after a period of leave. You were advised in writing on 11 September, 2012 by the Dean of Graduate Studies, that upon recommencement of your studies in 2013 you would be required to achieve 75% in each course and if you were unable to do so, your enrolment would be cancelled. As you achieved 69% for CHEE3320 and 67% in CHEE4320 on your second attempt I have to advise that you have not satisfied the University's requirement in relation to your continued enrolment in the Master of Philosophy (Chemical Engineering) program and your enrolment has been cancelled. …. In accordance with Rule 42 of the Rules Governing Higher Research Degrees you may appeal against this decision on procedural grounds only within 20 working days from the date of this letter. …. Appeals are referred to the Deputy Vice-Chancellor (Research) for consideration."
It was common ground that Rule 42 provided a right of appeal only where a student's candidature was terminated and, in this case, there had been a cancellation of enrolment rather than a termination of candidature, so that the appeal rights in Rule 42 were not attracted. Nevertheless, the appellant did appeal. His appeal was considered on its merits by the Acting Deputy Vice-Chancellor, Prof Hodgson. In her letter of 21 October 2013, Prof Hodgson indicated that the appeal was dismissed on the basis that the decision of Prof Abbo had been procedurally fair and in accordance with the Rules Governing Research Higher Degrees. The dismissal of the appeal did not form part of the complaint under consideration by the Tribunal below. (Reasons [47])
When Prof Abbo made his decision on 1 August 2013 to cancel the applicant's enrolment without affording the appellant the opportunity to show cause, he had no knowledge that the appellant suffered from any disability, including a depressive illness. His decision to cancel the applicant's enrolment without the opportunity to show cause was not made on the grounds of any disability. Prof Abbo had specific regard to the contents of Rule 8, and the appellant's failure to satisfy the 75% condition "despite having ample time to study for the course [sic] and take examinations". (Reasons [70], [71], [82])
Prof Abbo would have made the same decision, to cancel the student's enrolment without opportunity to show cause, in the case of a student who did not have a disability, in circumstances where, like the appellant, the student: 1. was enrolled in the masters degree in Chemical Engineering after completing an undergraduate degree overseas; 2. had failed to comply with a condition that the student achieve 75% in two courses fundamental to their research; 3. had taken leave of absence and returned after being declared fit to resume study; 4. had been offered a scholarship of $22,000 and a waiver of fees in the sum of $48,000, and 5. was regarded by the student's supervisors as not having performed to a reasonable standard of research or achieved a reasonable level of progress. (Reasons [76], [77], [83])
In a report dated 22 October 2013, addressed to the University's Graduate Studies Office, Dr Raggatt stated: (Reasons [78]) "[The appellant] is suffering a severe major depressive illness which has been impacting his ability to complete his studies and exam performance over the last six - nine months. I'd be grateful if you could take his into account when determining his grading and status in the university."
On the basis of that report, the Tribunal below found, at [79], that the appellant suffered from a major depressive illness from about February 2013, which prejudiced his ability to study and perform in exams. Thus, it concluded that he was suffering from a "disability" for the purposes of the AD Act at 1 August 2013 and, we infer, at other relevant times between February 2013 and the date of the report. (Reasons [79]).
Furthermore, the Tribunal concluded (at [80]) that it was "unlikely that the appellant was suffering from an illness of that nature between December 2012 and February 2013", based on Dr Raggatt's letter to the School of Chemical Engineering (dated 21 December 2012) and his report to the Graduate Studies Office (dated 22 October 2013).
Prof Abbo did not implement any "intervention strategy" in favour of the appellant. At the time the appellant's matter was referred to him, at the end of July 2013, Prof Abbo was unaware of the appellant's then current disability. Consequently, the failure on Prof Abbo's part to implement any intervention strategy for the appellant was not a decision made on the grounds of his disability. (Reasons [84])
Similarly, the mistaken reference to an appeal under rule 42 in the letter of 1 August 2013, did not subject the appellant to any detriment and was made by Prof Abbo at a time when he was unaware of the appellant's disability. Further, he would have treated a person without the appellant's disability in the same way. (Reasons [89] - [93])
The findings set out above and the absence of other potentially relevant evidence were relied upon by the Tribunal in considering the complaint of indirect discrimination at [94] - [100].
None of the findings made by the Tribunal below appeared to us to be unreasonably arrived at or clearly mistaken.

[11]

First ground of appeal Par 33

Paragraph 33 of the Grounds of Appeal is as follows: "33. The members conducted the proceeding for the two officers of the university conduct i.e. Associate prof. Andrew Abbo and Dr. Jennifer Allan. The member excludes the discriminatory conduct of other officers. The jurisdiction of the tribunal is to undertake and determine as investigated by the president of the ADB. The tribunal failed to undertake its jurisdiction. As a result, this is unfair to the applicant and it is a denial of procedural fairness (or right to be heard) to the applicant's case."
The "other officers" are not further identified in par 33. In the document headed "Issues for determination", pars 26 to 32 appear to clarify that this ground of appeal relates to whether the conduct of Prof Hodgson, the Acting Deputy Vice-Chancellor, and the conduct of Dr Altarawneh and Prof Dlugogorski, the appellant's supervisors, also amounted to unlawful discrimination. The provision allegedly contravened by one or more of them is said to be s 49L(2)(a) and (c).
We pause to note here that in the Tribunal below and on appeal, none of the officers of the University were parties. The only party, apart from ZDB, was the University. As we understand it, the appellant did not seek relief against any of the individuals and is content to rely on the University's liability for its agents and employees under s 53 of the AD Act. Further, as far as we are aware, the University does not take issue with such an approach.
The appellant's fundamental submission is that the "Tribunal failed to undertake its jurisdiction". This appears to be based on the assumption that the Tribunal was required to formulate, from the documents, submissions and any other material presented by the appellant or available to the Tribunal, all of the potential complaints of discrimination that the appellant could make and then consider each of them.
This assumption is not correct. It is true that the Tribunal is required to facilitate the just, quick and cheap resolution of the real issues in proceedings (s 36(1) and (2) of the NCAT Act), to take such measures as are reasonably practicable to ensure that the parties to proceedings understand the nature of the proceeding and have a reasonable opportunity to be heard (s 38(5)(a) and (c)) and to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue (s 38(6)(a)). This does not mean, however, that the Tribunal is required to identify for any party, or advise on, what the party's case should be and against whom, what facts the party should put in issue or what legal provisions or principles the party should rely on.
The Tribunal below gave the appellant a number of opportunities to explain how he alleged he was unlawfully discriminated against and by whom. First, prior to the hearing at first instance, there were three case conferences. In anti-discrimination matters, the Administrative and Equal Opportunity Division regularly conducts case conferences, which are relatively informal hearings, designed to assist parties, and especially unrepresented litigants, to prepare their cases for hearing by having them identify the conduct said to amount to unlawful discrimination, who the alleged perpetrators were and when it occurred. Often the Tribunal asks an applicant to record this in points of claim. Assistance is usually also given with understanding the processes and procedure for a hearing and what types of evidence will be required. There is nothing to suggest that something different occurred in the present case. Further, since we do not have specific information as to all that occurred at the three case conferences in this matter, we cannot conclude that the appellant was refused assistance or was impeded in articulating his case at those conferences.
Secondly, at one case conference the appellant was directed to state what his case was in points of claim to be provided prior to the hearing. He did not do so. The result of this failure was that when it came to preparing its evidence, the University was unsure of the case it had to meet. At the hearing, the Tribunal held that the prejudice to the University, if the appellant was allowed to add new complaints of direct discrimination, which were not obviously raised prior to the hearing, was a sound basis for not allowing the appellant to add such new complaints. On the second day of the hearing, the Tribunal delivered short oral reasons for its decision permitting the appellant to proceed with a claim of direct discrimination in respect of Prof Abbo's conduct but not other claims. Those oral reasons delivered ex tempore were as follows: "On 8 April 2015 the tribunal conducted the first of a number of case conferences in these proceedings. It ordered that points of claim be filed by 7 May 2015. Points of claim have not been filed by the applicant. He has, however, filed a document on 27 August which was dated 12 May 2015 (marked MFI 2). A further document was filed on 15 September 2015 dated 19 July 2015 (marked MFI 3). A further document was filed on 10 August 2015 does not appear to have been filed but I accept was served on the respondent. I am told by the respondent and accept that on 14 June MFI 2 was received by and on 20 August MFI 3 and 4 were received by. The respondent has come to the tribunal prepared to meet an allegation of indirect discrimination. However, it tells the tribunal that it is not prepared to meet allegations of direct discrimination because they have not been articulated in any points of claim, save for one allegation, namely that Professor Abbo directly discriminated against the applicant by cancelling his enrolment in Newcastle University. The applicant, who despite the failure to file points of claim, seeks leave to proceed on the basis of numerous allegations of direct discrimination, including but not limited to the discrimination I mentioned by Professor Abbo. The respondent objects to his doing so on a number of grounds. First, it says that the points of claim should have been filed adequately outlining the case for the applicant by the due date, namely 7 May 2015. The respondent issued its points of defence, filed its points of defence on 9 July 2015, and it ought not now be put to the task of preparing a new case in respect of direct discrimination allegations not made previously. It also says that it cannot understand the numerous allegations of direct discrimination made or allegedly made by [ZDB] in MFI 2, 3, and 4, which he articulated yesterday and today and which he recorded in transcript. Both MFI 3 and 4 were served and filed well after the due date ordered by the tribunal for the filing of the points in claim. The tribunal in applying its procedure is required to have regard to the golden rule of just, quick and cheap determination of the real issues in the proceedings. In the tribunal's view, it would not be a proper application of that principle to now require the respondent to go away and prepare a new case based on these allegations of direct discrimination of MFI 3 and 4. So far as [ZDB] applies to make complaints before this tribunal of direct discrimination as outlined in MFI 3 and 4 that application is declined. It is declined also on the basis that the tribunal is unable to be satisfied that the complaints of direct discrimination are adequately particularised for the respondent to be able to respond. So far as the alleged matters raised in MFI 2 are concerned, that document was dated 12 May 2015 and served we accept on 14 June, it was filed on 27 August. Similarly that document was filed and served well after the date for filing of the points of claim, and for the same reasons [ZDB's] application to proceed on the allegations contained in MFI 2 is declined. However, the allegation that Professor Abbo discriminated against the applicant directly by cancelling his enrolment is one of which it is clear that the respondent has been aware for some time, and it is one addressed by the respondent in its points of defence. For that reason we propose to grant leave to [ZDB] to proceed in respect of that allegations of direct discrimination only. …"
Thirdly, later during the hearing, the Tribunal took further pains to assist the parties to identify clearly and to record what the appellant's case was in relation to the claim of direct discrimination in respect of Prof Abbo's conduct.
Some of the presiding Member's comments in this regard on the third day of the hearing are recorded in the transcript as follows (Transcript 18 September 2015 p 163 ll 19 - 44): "SENIOR MEMBER PERRIGNON: … You were told sir, to file points of claim by 5 May. To this day, you have no complied with that direction. You have filed reams of irrelevant material in this tribunal, which you haven't even sought to tender in your case. You have left the defendant to guess what your claim has been. Doing its best, it's guessed it was a claim in indirect discrimination and not in direct discrimination. Over a course of three days you have attempted to articulate numerous claims in direct discrimination, and I have declined you leave on the basis that the prejudice to the defendant would be massive. That there is no adequate explanation for what you've failed to do, and applying the rule, the golden rule [referring to the guiding principle in s 36(1) of the NCAT Act] that applies to proceedings in this matter generally. Before me today you have attempted to expand, again, the one claim in direct discrimination which we have given you leave to mount. It has taken me hours to elicit from you what the particulars of that claim are and you've done your best to expand it. To the extent that the defendant can meet it with its existing evidence or by oral evidence of Professor Abbo, I'm inclined to hear you, but the tribunal and the defendant both need to know exactly what your claim is. It seems to me that you are incapable of articulating it in written form. I draw that inference from the fact that you haven't done so, despite the orders of this tribunal and months to prepare. So I have invited counsel for the defendant to articulate your claim in direct discrimination in accordance with what I have eked from you this morning, so that at least there is some articulation of the claim for the benefit of the tribunal's determination, and for the benefit of the defendant who has to meet it. That's as much as I can do for you [ZDB]. I am going to adjourn now."
The solution adopted by the Tribunal was recorded as follows (Transcript 18 September 2015 p 166 l 35 - 168 l 6): "SHARIFF [Counsel for the University]: Yes, I've prepared that document and I've got instructions to file it on the basis that it only reflects our understanding, tribunal members, also the proviso that really this must be it. SENIOR MEMBER PERRIGNON: It's probably good that we have elicited that; I'm not entirely sure that's what is exactly the claim but let's have a look. [ZDB], these are the three particulars that the respondent has written expressing its understanding of the ways in which you say you were treated less favourably than a person without your disability by Professor Abbo. I'll read them out to you. "Professor Abbo, if he were dealing with a person without your disability would have obtained intervention strategies for them", is that what you're saying? APPLICANT: Before he take the actions of that, he should have to do some - SENIOR MEMBER PERRIGNON: I'm not asking you what he should have done, I'm asking you, do you say that if he were dealing with a person without your disabilities he would have obtained intervention strategies for them? APPLICANT: Yes. SENIOR MEMBER PERRIGNON: What intervention strategies? APPLICANT: That depends on the circumstances of the student. In my circumstance, I will just deliver him what intervention I need. In my - SENIOR MEMBER PERRIGNON: Secondly, do you say, if you are dealing with a person without your disability, he would have consulted with that person before making a decision to exclude them? APPLCIANT: Not consulted, show cause, that means he should have called on the student to propose from his side what this impact to. SENIOR MEMBER PERRIGNON: Not consulted, but ask them to show cause? APPLICANT: Yes show cause, and consultations are different. SENIOR MEMBER PERRIGNON: Yes, and finally, "He would not have referred to r 42 of the rules Governing Research Higher Degrees"? APPLICANT: Yes. SENIOR MEMBER PERRIGNON: As I understand it they are the three ways in which you say Professor Abbo treated you less favourably than he would have treated a person without your disability in the same or not materially different circumstances. APPLICANT: Yes. SENIOR MEMBER PERRIGNON: Mr Shariff, I thank you for that exercise. I have amended it by taking out the preamble, not all of which I agree with, and am going to head the documents, "Particulars of Direct Discrimination Claim re Professor Abbo", and the particulars I have are these; (a) obtained intervention strategies, (b) asked the students to show cause, (c) not referred to r 42 of the rules Governing Research Higher Degrees. I am going to initial and date the document, and I going to place it with the papers. [ZDB], we must all understand now that your claim in discrimination is - that is to say that your claim of direct discrimination against Professor Abbo is that if he were dealing with a person without your disabilities, in the same or not materially different circumstances, he would have done three things for them that he hasn't done for you; namely, obtained intervention strategies for them, asking the students to show cause, and would not have referred them to r 42 of the rules Governing Research Higher Degrees, by way of appeal. APPLICANT: Before he take the action of cancelling this, this was expected options. SENIOR MEMBER PERRIGNON: That's what you have leave to argue, that's what the defendant now understands you are arguing, it's what the tribunal understands you're arguing, it's what the tribunal will determine. …"
In this way, the Tribunal confined the appellant to the direct discrimination case based on Prof Abbo's conduct as articulated and agreed upon. This was in addition to the indirect discrimination case already satisfactorily articulated.
In our view, the approach taken by the Tribunal was open to it in the circumstances. The appellant has not identified in his submissions any specific error made by the Tribunal in this regard that would justify us interfering with the Tribunal's exercise of its discretion, in accordance with the principles in House v The King (1936) 55 CLR 499 at 505.
As to the specific allegations concerning Prof Hodgson, par 168 of the "Appellant's Brief", filed on 7 February 2017 (the Appellant's Brief), contains the allegation that Prof Hodgson "discriminated against me on the ground of disability in contravention of … section 49L(2)(b) … by affirming the cancellation".
The Tribunal's finding in relation to the Rule 42 appeal to Prof Hodgson was, at [47], that: "the appeal was dismissed on the basis that the decision of Professor Abbo had been procedurally fair in in accordance with the Rules Governing Research Higher Degrees."
The University's letter and records, relied upon by both the appellant and the respondent at first instance, provided the basis for this conclusion. In our view, the appellant has not shown that these findings were affected by error of any type. If these findings are accepted, it can be concluded that the appellant is unlikely to have suffered any prejudice in not being allowed to pursue a case of direct discrimination against the University based on the conduct of the Acting Deputy Vice-Chancellor in dismissing his appeal.
As to the conduct of Dr Altarawneh and Prof Dlugogorski, in the Appellant's Brief there are numerous references to their knowledge being imputed to Prof Abbo. These references go, however, to the ground raised in par 47 of the Grounds of Appeal under the dot point "Legal test of knowledge". This ground is elaborated upon at pars 52 to 54 of the Grounds of Appeal. We shall deal with the issue of imputed knowledge when dealing with that ground.
The appellant has not demonstrated any substantial basis for concluding that the conduct of Dr Altarawneh and Prof Dlugogorski gave rise to a strong or even arguable case that the University had directly discriminated against him on the ground of disability. Thus, we do not accept that the Tribunal below erred in confining the appellant's direct discrimination case in the way that it did or that we should intervene even if there were some error.
In so far as the appellant sought leave to appeal concerning any of the factual or other findings relevant to these other direct discrimination complaints or the Tribunal's decision to confine that direct discrimination complaint to allegations against Prof Abbo, we are not aware of any material that we think sufficient to justify granting leave to appeal to challenge these findings or decision. The principles as to whether leave to appeal should be granted were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84] and include: "(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed; BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]".
The circumstances of this appeal do not appear to us to fall within any of the categories which would generally attract a grant of leave to appeal.
For these reasons, we reject the first ground of appeal.

[12]

Second ground of appeal Pars 34 - 35

The second ground of appeal was expressed as follows in par 34 of the Grounds of Appeal (emphasis in original): "34. The members failed to perform their duty to give assistance to the appellant as a self-represented litigant. The member has a duty to assist self-represented parties in order to give them a chance to present their case properly. …"
The appellant submitted, in particular, that the Tribunal below: "had not put to me to being able to make an effective choice by allowing to prosecute other officers, such as my research supervisors …, prof Dborah Hodguson and Allison Hugh".
In this regard, the appellant was relying in particular upon the sentence in the Victorian Supreme Court's judgment in Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [91] that: "The judge had to put the accused in the position of being able to make an effective choice …".
This failure by the Tribunal was said to have led to practical injustice and unfairness. In addition, it was submitted (at par 35) that the Tribunal in effect required the appellant "to articulate the case as a professional lawyer".
The principles concerning the assistance a Court, or tribunal, is required to give a self-represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91]: "… In Bauskis v Liew [2013] NSWCA 297 at [67]-[70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."
As we have already explained, the Tribunal at first instance gave the appellant the opportunity to identify what conduct, and by which perpetrators, he alleged amounted to unlawful discrimination on the ground of disability: 1. through the case conference process; 2. in points of claim; 3. at the hearing.
In all of this, there is nothing to suggest that the Tribunal required the appellant to plead his case to the standard expected of a legal practitioner appearing in a court of strict pleading. The appellant did not draw to our attention any instance where the Tribunal inappropriately hindered or prevented him from exercising his choice as to how to frame his complaint and against whom.
When, however, he had failed to state what his case actually was with sufficient time to allow the University to respond, the Tribunal confined the appellant to an indirect discrimination case which had already been articulated and the limited direct discrimination case based on Prof Abbo's conduct, as explained above. As we have said, the appellant has not established that the Tribunal erred in so doing.
The appellant does not complain that the Tribunal failed to inform him as to the practice and procedure of the Tribunal. Nor, as the Court of Appeal made clear, was the Tribunal required to advise the appellant as to how his rights to make a complaint in the Tribunal should be exercised. Moreover, it was not the function of the Tribunal to give judicial advice to, or conduct the case on behalf of, the appellant.
Like a Court, the Tribunal was required to ensure that the hearing was fair for both parties. The University was entitled to be informed, in a clear and effective manner, of the case that was being put against it with sufficient time to allow it to provide evidence to meet that case. The Tribunal attempted to assist both parties by directing the filing of points of claim and by obtaining a satisfactory statement or summary of the appellant's case both before and at the hearing.
The appellant did not rely on any more specific instances of action or inaction by the Tribunal to support this ground of appeal.
In all the circumstances, it does not appear to us that the Tribunal failed in its duty to give assistance to the appellant as a self-represented litigant.
We reject the second ground of appeal.

[14]

Fourth ground of appeal par 37

The fourth ground of appeal is found in par 37 of the Grounds of Appeal and reads as follows: "The tribunal did not make a credibility question to Associate prof. Andrew Abbo in his cross examination to the evidence he provided. … "
As we understand it, the particular issue concerned the letter that the appellant wrote to Prof Abbo dated 27 August 2013 concerning the appellant's appeal against Prof Abbo's decision conveyed in his letter of 1 August 2013. It was submitted, in par 37, that the letter of 27 August 2013: "is addressed directly to him [Prof Abbo] and the content of the appeal is directly addressing him to reconsider his decision. This request letter (i.e. appeal) accompanied by supporting medical certificate evidence. On the contrary he provided unplausible response. The content of the appeal letter does not address to prof. Deborah Hodguson to review the cancellation of my enrolment by Associate prof. Andrew Abbo."
We were not taken to any transcript or sound recording concerning this portion of the evidence. We were not informed what questions the appellant submitted the Tribunal should have asked.
Further, the dismissal of the Rule 42 appeal to the Acting Deputy Vice-Chancellor did not form part of the complaint under consideration by the Tribunal at first instance (see reasons at [47]) and was not part of the direct discrimination case, based on Prof Abbo's conduct, that the appellant was permitted to make.
Finally, this ground appears to be founded on the assumption that it was the duty of the Tribunal during Prof Abbo's evidence to ask questions going to his credit or credibility. While, under s 46(1) of the NCAT Act, the Tribunal is permitted to ask witnesses questions, and may ask questions related to credibility, there is no general duty on the Tribunal to do so. Section 38(6)(a) requires the Tribunal "to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings". This, however, does not extend to questioning a witness as to credibility when there is no significant basis for considering that any information elicited will be necessary in order for the Tribunal to determine a relevant fact in issue.
In all the circumstances, we are not satisfied that the Tribunal erred in law by failing to ask questions of Prof Abbo during the hearing, as contended by the appellant.
We reject this fourth ground of appeal.

[15]

Fifth ground of appeal par 38

The fifth ground of appeal is found in par 38 in the following terms: "38. The member did not raise a credibility issue on Dr. Muhamednoor Altarawneh affidavit and oral evidence which he gave an evidence for the 2013 event which he was not entitled to be a credible witness as he was on leave and not supervising me."
As we understand it, this ground sought to challenge the Tribunal's finding that Dr Altarawneh was a credible witness in relation to what occurred concerning the appellant in 2013, because Dr Altarawneh was on leave from the end of February to the end of May 2013 (Transcript of 4 February 2016 p 10 ll 15-16, and generally the sound recording at about 26 - 27 minutes into the recording). The fact that Dr Altarawneh was on leave during this period does not, however, necessarily establish that the Tribunal erred in accepting relevant portions of Dr Altarawneh's evidence.
The Tribunal's relevant finding is at [63] of its reasons in the following terms: "The evidence of Professor Dlugogorski is consistent with that of Dr Altarawneh and, to the extent summarised above, is not contradicted by other evidence. For those reasons, we accept their evidence and make findings of fact in accordance with it."
We note that this is not a complete acceptance of Prof Dlugogorski's or Dr Altarawneh's evidence. Rather it is only an acceptance of their evidence to the extent of: 1. what is summarised in the Tribunal's reasons for decision (at [19]-[46] and [48]-[62]); 2. what "is not contradicted by other evidence", and this "other evidence" included documents admitted into evidence and the evidence and material provided by the appellant and other witnesses.
We also take into account the Tribunal's comments at [15] - [18]: "15. Despite the directions of the Tribunal, the applicant did not file any statements of evidence. He told the Tribunal at an early stage that he relied on the evidence of his supervisors, tendered by the University. That evidence is summarised below. He provided voluminous documents which took the form of submissions. The Tribunal heard extensively from him, by way of submissions, over the course of the hearing. He was cross-examined. 16. The parties differed significantly in their submissions as to whether the facts amounted to discrimination on the grounds of disability. However, save for two issues, the Tribunal was unable to discern any significant differences between the parties in terms of the facts alleged, many of which were evidenced by contemporaneous documents, including correspondence and medical and other reports. 17. The two issues referred to were, first, whether the applicant suffered from a disability at all, and second, whether Professor Abbo, when he decided to cancel the applicant's enrolment, was aware of it. … 18. For those reasons, the most convenient course is to summarise the statements produced by the respondent by way of factual background, and to indicate the degree to which we are satisfied of the facts alleged in them, and any conclusion which we have drawn from them."
Accordingly, although we accept that Dr Altarawneh was on leave from the end of February to the end of May 2013, this does not provide a sound basis for concluding that the Tribunal's findings generally should be rejected. Nor does it provide a basis for rejecting the Tribunal's findings based wholly or primarily on Dr Altarawneh's evidence. His evidence covers more than the period from February to May 2013. The only evidence which relates to the period of his leave is referred to at [40] of the Tribunal's reasons. The reasons at [40] record: "Dr Altarawneh noticed that in the months preceding the coursework exams, the applicant seemed to focus on the exams, rather than his research work. He was given four weeks off his research immediately prior to the exams so he could prepare for them. During the semester, Dr Altarawneh noticed the applicant was spending only 10 to 20 hours on his research rather than 40 hours, which was the norm for research students. He considered the time spent was insufficient. He considered the applicant had difficulty understanding simple chemical engineering concepts necessary for both coursework and research, and required detailed feedback from his supervisors. He recalled having to spend many more hours assisting the applicant than he would for other Masters candidates. He considered the applicant's progress slow and his work below standard. He considered the applicant still lacked the skills, knowledge and capability to complete the Masters degree."
This evidence relates to periods when Dr Altarawneh was not on leave as well as the period from the end of the February to the end of May 2013. Even if that part of [40] which related to periods when Dr Altarawneh was on leave should be rejected, this would not weaken the basis for the Tribunal's findings. Nor would it provide any reason for concluding that the basis upon which the Tribunal decided the matter as a whole was flawed.
Thus, we reject the fifth ground of appeal.

[16]

Sixth ground of appeal Pars 39 and 40-46

The sixth ground relates to errors of law in reaching the conclusions contained in [80] and [81] of the Tribunal's reasons. The ground is summarised in par 40 of the Grounds of Appeal as follows: "40. The tribunal fell in to error of law when making a decision at paragraph 80 and 81 in the following respect: ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party ▪ Misconceived the interpretation of disability ▪ Ignores relevant material ▪ Asks itself the wrong question ▪ Denying procedural fairness ▪ Inadequate reason ▪ No evidence ground ▪ Procedural fairness"
This summary is elaborated upon in pars 41 to 46 of the Grounds of Appeal.
First dot point - Ignoring evidence: Paragraph 41 identifies the critical evidence as a "medical certificate letter" from Dr Raggatt of 5 May 2015 which was said to indicate that the appellant had "major depression" since September 2012 and thus the Tribunal fell into error at [80] where it held that he "did not have a disability between December 2012 and February 2013".
This ground does not appear to us to raise a question of law. In so far as this aspect of the sixth ground raises a question other than a question of law, we do not believe there is any proper basis for granting leave to appeal, in the light of the principles set out in Collins v Urban, referred to above. We have reached these conclusions for the reasons which follow.
The Tribunal's finding at [80] was: "When Dr Raggatt's certificate of 22 October 2013 is read together with his letter of 21 December 2012, which certified him fit to resume studies, it is unlikely that the applicant was suffering from an illness of that nature between December 2012 and February 2013. If he did suffer from any mental illness in that period, it was unlikely to have been sufficiently symptomatic to affect his studies. We are not satisfied that he was suffering from a disability in that period."
It will be recalled that on 21 December 2012 Dr Raggatt wrote to the University stating that the appellant was "entirely fit to resume his studies in post-graduate engineering". This was after: 1. the appellant's treating GP (Dr Patel) provided a letter dated 28 August 2012 indicating that he first saw the appellant on 18 July 2012 with a 6-month history of poor sleep, weight loss and feeling unhappy, the appellant was due to see Dr Raggatt on 13 September 2012 and the GP was of the opinion that the appellant's mental illness, which he described as 'depression', had had a profound effect on his studies, causing him to perform poorly; 2. as a consequence of the GP's letter, in his letter of 11 September 2012 Prof Holmes recommended that the appellant take leave of absence for the remainder of 2012 and get well before resuming his studies but also stated that he would require a doctor's letter confirming the applicant was fit to resume study "before [his] enrolment for 2013"; 3. the appellant took up the offer of leave of absence but decided to resume his studies in 2013.
Dr Raggatt was the psychiatrist to whom the appellant was referred for treatment for depression by Dr Patel. There was no suggestion by either party that Dr Raggatt's various letters were not reliable. Consequently, an available conclusion to draw from Dr Raggatt's letter of 21 December 2012 (see [53] above) was that at least from about that date, the appellant was, in fact, entirely fit to resume his studies and that he was no longer suffering from depression. This was the conclusion that the Tribunal reached in [80] and it was an open conclusion on the evidence. There was no error by the Tribunal in reaching it.
Dr Raggatt provided another report concerning the appellant dated 22 October 2013 which included the following: "[The appellant] is suffering a severe major depressive illness which has been impacting his ability to complete his studies and exam performance over the last six - nine months. I'd be grateful if you could take his into account when determining his grading and status in the university."
Dr Raggatt's timeframe is not precise. Six to nine months prior to 22 October 2013, is between 22 January and 22 April 2012. In addition, it was not in dispute that the appellant resumed his studies at the beginning of first semester 2013.
On all this material, it was open to the Tribunal to conclude that during December 2012 and January and February 2013, the appellant was not suffering from a major depressive illness or that he was asymptomatic. The contrary conclusion might well have involved the Tribunal accepting that the appellant recommenced his studies in 2013 knowing that he was not well enough to do so or that Dr Raggatt was unreliable in his opinion as to the appellant's condition in his December 2012 letter. The Tribunal was not bound so to find.
In support of his submission, the appellant relied upon Dr Raggatt's report of almost two years later which was in the following terms: "5 May 2015 To Whom It May Concern The University of Newcastle … Re: [ZDB] … [ZDB] has asked me to clarify the information provided in my brief letter of 21 December 2012. In that letter, I wrote that he was "entirely fit to resume his studies as a post-graduate student in Chemical Engineering". {ZDB} has indicated that that phrase has been understood to mean that he was entirely without impairment and would not need additional support or accommodation to requirements. In fact, although [ZDB] is now greatly improved with regard to his major depressive illness, he remains mildly impaired with regard to attention, concentration and confidence. That was also the case at the time I wrote the enclosed letter. However, he was fit to resume his studies, although with some accommodations. …"
We do not see this as inconsistent with the Tribunal's findings at [80], which were that: 1. It was unlikely that the applicant was suffering from "an illness of that nature", namely a major depressive illness, between December 2012 and February 2013; 2. if he did suffer from any mental illness in that period, it was unlikely to have been sufficiently symptomatic to affect his studies; and thus, 3. The Tribunal was not satisfied that he was suffering from a disability in that period.
The material relied upon by the appellant does not demonstrate any error in the Tribunal's decision making in this regard nor does it provide any substantial basis for granting leave to appeal.
We do not accept that the Tribunal erred in law or in fact in finding as it did at [80] and leave to appeal should not be granted.
Second and fourth dot point - Misconceived the interpretation of disability and Asks itself the wrong question: Paragraph 44 of the Grounds of Appeal elaborates upon these points. As we understand it, the appellant's submission was that persons who suffer from a disorder may still have a "disability" even though they feel "normal" and can lead a normal life. Thus, the Tribunal fell into error at [80] by finding that the appellant did not have a disability between 21 December 2012 and February 2013, in the light of Dr Raggatt's letter of 5 May 2015.
This submission depends on interpreting the findings at [80] as inconsistent with Dr Raggatt's letter of 5 May 2015. For the reasons given above in relation to the first dot point, we do not accept that the Tribunal's finding at [80] is inconsistent with that later report of Dr Raggatt. The Tribunal's findings at [80] were open on the evidence. There was no error of law and no ground for granting leave to appeal in respect of the Tribunal's findings at [80] has been established.
Furthermore, even if the appellant were correct that the Tribunal erred in law by concluding that he did not have a "disability" between December 2012 and February 2013, it appears to us that nothing relevant to this appeal turns on this. The Tribunal found that, for the purposes of the AD Act, the appellant did suffer from a disability and did so at times relevant to the alleged direct and indirect discrimination (Reasons at [17], implicitly at [67], [83]ff). The appellant's complaints did not fail because he was found not to have a disability. They failed on other grounds, see [82]-[100] of the reasons of the Tribunal below.
Third dot point - Ignores relevant material: Paragraph 43 of the Grounds of Appeal appears to relate to this point and the "relevant material" is Dr Raggatt's 2015 report. This dot point raises, in substance, the same issue as the first and second dot points. We repeat and rely upon our reasoning for those dot points.
Fifth and eighth dot points - Denying procedural fairness and Procedural fairness: Paragraph 42 of the Grounds of Appeal asserts that by not taking Dr Raggatt's 2015 letter into account the Tribunal denied the appellant a fair hearing and an opportunity to be heard in contravention of s 38(5)(c) of the NCAT Act.
Just because the Tribunal did not mention the 2015 Raggatt letter does not mean it was not taken into account. The Tribunal is not required to mention every item of evidence before it, especially if it does not lead to a different conclusion from that which is available from other more directly relevant evidence. Further, for the reasons given above, that letter was not inconsistent with the findings of the Tribunal based on other material. Thus, it is not surprising that the 2015 letter was not specifically mentioned.
Accordingly, we are not satisfied that there was any breach of s 38(5)(c) which requires the Tribunal "to take such measures as are reasonably practicable … to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
Finally, even if there were such a breach, it would have made no difference in this case for the reasons given above in relation to the second and fourth dot points.
Sixth dot point - Inadequate reason: As we understand from par 45, this dot point refers to the finding at [81] of the Reasons which was as follows: "81 To the extent relevant, we are also satisfied on the medical evidence that in first semester of 2012, his studies were adversely affected by symptoms of depression, but there is no evidence before us of a precise diagnosis in that period."
In par 45 the appellant submits: "The tribunal reason at paragraph 81 is not adequate and did not take relevant consideration, ignored critical evidence to a disputed issue and contrary to an assertion of fact made by a party. There was critical medical evidence in 2012 by Dr … Patel …".
The Tribunal's reasons record the content of Dr Patel's letter of 28 August 2012 at [32] as follows: "In the letter of 28 August 2012, Dr Patel indicated that he first saw the applicant on 18 July 2012 with a 6-month history of poor sleep, weight loss and feeling unhappy. He was at that stage due to see Dr Raggatt on 13 September 2012. Dr Patel expressed the opinion that the applicant's mental illness, which he described as 'depression', had had a profound effect on his studies, causing him to perform poorly."
The finding at [81] is consistent with the contents of Dr Patel's 2012 letter. There is no substance in the appellant's submission in par 45. We reject it. Further, even if there were some substance in the submission, it would have no effect on the outcome for the reasons given above in relation to the second and fourth dot points.
Seventh dot point - No evidence ground: Paragraph 46 of the Grounds of Appeal contained the following in relation to the no evidence ground: "At paragraph 80 there is no evidence that support the conclusion of the tribunal which suggests that whether or not my major depression affects my studies between December 2012 and February 2013. As a result, the tribunal fell in to error of law in making that conclusion."
For the reasons already given above: 1. the finding at [80] was supported by evidence and was open to the Tribunal; and 2. even if this were not so, whether or not there was unlawful discrimination against the appellant does not turn upon the finding at [80].
Conclusion on sixth ground of appeal: We do not accept that any of the appellant's submissions establish any basis for upholding the appeal on the sixth ground of appeal. We reject that ground.

[17]

Seventh ground of appeal Pars 39, 47 and 48 - 58

The seventh ground relates to errors of law in reaching the conclusions contained in [70] of the Tribunal's reasons. The ground is summarised in par 47 of the Grounds of Appeal as follows: "47. The tribunal fell in to error of law at paragraph 70 in the following respect: ▪ Jurisdiction ground ▪ Legal test of knowledge ground ▪ Causation test ground ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party ▪ Ignores relevant material ▪ Inadequate reason ▪ Asking the wrong question ▪ Credibility of witness …"
This summary of errors relating to [70] of the Tribunal's reasons is elaborated upon in pars 48 to 58 of the Grounds of Appeal.
The Tribunal's reasons at [70] stated: "Professor Abbo was cross-examined, and did not resile from his evidence. There is no evidence to the contrary. We are satisfied that, when he made the decision to cancel the applicant's enrolment, he did not know that the applicant was suffering from any disability, including a depressive illness. We are satisfied that his decision to cancel the applicant's enrolment was not made 'on the grounds of' any disability."
First dot point - Jurisdiction ground: This point is covered in more detail by the submissions in pars 48 to 53 of the Grounds of Appeal. As we understand it, the appellant submits: 1. The Tribunal "had a jurisdiction to determine the proceedings on the basis of ongoing discrimination which starts in the past and continues in the period as investigated by the president of Anti-Discrimination Board …". Thus, the Tribunal should have considered his case that he did not receive "reasonable adjustment (intervention strategy identification) from various officers of the University in 2012 and 2013. (par 48); 2. Prof Holmes's letter of 11 September 2012 "was direct discriminatory for 2013 events in two respects: it denied or limited me the benefit of intervention strategy implementation after or before the return of leave of absence and provided me a service in a term" and that letter also "denied or limited me the benefit of intervention strategy implementation for the coming semester 2013 as I was at risk student". (pars 49 and 50); 3. Because "prof. Scott Holmes mention in his letter [of 11 September 2012] that if I did not achieve 75% in 2013 my candidature will be cancelled based on the provision of service in a term of not providing intervention strategy in 2013. Associate prof. Andrew Abbo coated in his letter this word why and how he canceled my candidature. This means that he based his cancellation on his past predecessor's disability discrimination decision. That means [Prof Abbo] implement past discrimination conduct by coating past discriminatory letter. As a result the imputation of disability by [prof Holmes] in his letter of 11 September 2012 is imputed to [Prof Abbo] when he made the decision in 1 August 2013. Therefore, the tribunal misconceived its jurisdiction and fell in to error of law in the determining the knowledge of [Prof Abbo]." (par 51); 4. Because Prof Abbo "allowed research supervisors to represent him" their knowledge of the appellant's disability should be imputed to Prof Abbo. (par 52); 5. "When the tribunal determine knowledge, it has a jurisdiction to determine all the events happening during the complaint accepted period." Prof Abbo received the appellant's appeal letter of 27 August 2013 which had a medical certificate attached which disclosed his disability. As a result Prof Abo had knowledge of his disability but persisted in his conduct. (par 53).
The appellant's first submission that the Tribunal should have considered his case that he did not receive "reasonable adjustment (intervention strategy identification)" from various officers of the University, including Prof Holmes, in 2012 and 2013 should be rejected on various bases. First, to the extent that this is a complaint that the Tribunal improperly restricted the appellant's ability to press complaints of direct discrimination by failure to provide reasonable adjustments by persons other than by Prof Abbo in 2013, we have already explained in these reasons why the Tribunal at first instance did not err in this regard.
Secondly, if this is not a complaint of the type referred to in the preceding paragraph, it appears to us that the submission amounts to no more than a claim that the University should have provided the appellant with reasonable adjustments because of his disability but did not. That does not amount to a complaint of discrimination but rather a claim that the University failed to do something that it was obliged to do and the appellant suffered loss and damage as a consequence. The only matter that was before the Tribunal at first instance, however, was what the President of the ADB had referred to the Tribunal. The Tribunal below did not have before it any other claims and there was no error in not dealing with them.
As we see them, the remaining submissions concern: 1. whether Prof Abbo should be imputed with Prof Holmes's knowledge of the appellant's disability dating from 2012 or with similar knowledge of the appellant's 2012 disability from his supervisors and thus be found to have acted or failed to act "on the ground of disability"; and 2. whether Prof Abbo's own knowledge of the appellant's disability in 2012 should have a similar result. These submissions should be rejected for the following reasons.
As to the first of these submissions, the nature of the enquiry involved in determining whether conduct was engaged in "on the ground of" disability means that "imputed knowledge" is not relevant or helpful. The question of whether conduct that involved differential or less favourable treatment was "on the ground of" disability was considered by the Court of Appeal in Haines v Leves (1987) 8 NSWLR 442. In that case, Kirby P said at 471: "… the words of connection "on the ground of" require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment of the "ground" of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the "grounds" is a difficult one which calls for judgment and discernment."
We also accept what was said by the Administrative Decisions Tribunal of New South Wales in a similar context in Chinchen v NSW Department of Education and Training [2006] NSWADT 180 at [258]: "In order to determine the true basis for the conduct in question, it is necessary to look at the reasoning process behind it, both conscious and unconscious …"
In the present case, the Tribunal was required to assess what was the actual cause of, and the reasoning process behind, Prof Abbo's taking the steps or failing to take the steps complained of. This is a factual enquiry which turns on, among other things, what he actually knew or did not know. It could not turn on what he did not know but knowledge of which might be imputed to him, for example under the law of agency, if that were relevant. In the present case, the Tribunal approached the factual question of why Prof Abbo engaged or failed to engage in the relevant conduct, for example at [69]-[71], in an orthodox manner based on its findings. The conclusion reached by the Tribunal on this factual question was clearly open in the circumstances.
As to the second submission, knowledge of the appellant's disability during 2012, if it motivated Prof Abbo in 2013 to take the steps or refrain from taking the steps complained of, could be relevant to determining whether the University engaged in unlawful discrimination as alleged. This follows from the terms of s 49A, which states: "49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)."
"Disability" for the purposes of s 49B can include a past disability.
The Tribunal found, at [69], that Prof Abbo did have knowledge of the appellant's illness in 2012 because he had seen Prof Holmes's letter of 11 September 2012. Thus, it can be accepted that Prof Abbo had knowledge of the appellant's past disability, even if he did not know that the appellant suffered from any disability at the time of the relevant action or inaction.
Further, we accept that if Prof Abbo knew of the appellant's disability in 2012 and he acted or failed to act because of that past disability, he could be found to have done so "on the ground of disability" within the meaning of s 49B(1)(a). Thus, the fact that Prof Abbo did not know that the appellant had a disability, at the relevant times in about August 2013, does not by itself establish that he did not act or fail to act "on the ground of disability" for the purposes of the AD Act.
The problem for the appellant is that, as a factual matter, the Tribunal did not find that this past disability was one of the causes of, or factors that gave rise to, Prof Abbo's taking the steps or not taking the steps complained of. The Tribunal's reasoning at [70] cannot be looked at in isolation. The relevant reasoning of the Tribunal extends over [68]-[77] of its reasons for decision.
The Tribunal's finding as to what were the actual causes of Prof Abbo's conduct and inaction was open on the evidence. There was nothing that required the Tribunal to find that Prof Abbo's awareness of the appellant's past disability in 2012 caused him to take the steps or not take the steps complained of. Nor can we conclude in the circumstances that the Tribunal below made an error by failing to find that Prof Abbo acted or did not act on the ground of that past disability.
Consequently, these submissions fail on a factual level.
Having regard to the Tribunal's findings of fact and its reasoning at [68]-[77], the matters raised by the appellant do not satisfy us that he should be given leave to appeal to challenge those factual findings or the conclusion reached on grounds other than a question of law. None of the principles relating to leave to appeal, set out above, appear to us to be engaged in this aspect of the present appeal.
Second dot point - Legal test of knowledge ground: This point is covered in par 54 of the Grounds of Appeal which states: "The tribunal also failed to make whether [Prof Abbo] had an actual or constructive knowledge of my disability. The reason at paragraph 70 is inadequate which does not suggest that whether the tribunal made those tests and based on what evidence."
We have already noted that the Tribunal did make findings that Prof Abbo had knowledge of the appellant's past disability but not of a disability in about August 2013. These have been referred to above. We also accept that the reasoning at [70] is not complete but must be considered in the light of [68]-[77], read as whole, and the other findings of fact made by the Tribunal. As we have already explained in relation to that first dot point, these matters raised by the appellant do not lead to the conclusion that the Tribunal erred in law or in making any factual finding that would attract a grant of leave to appeal.
Third dot point - Causation test ground:
At par 55 of the Grounds of Appeal, the appellant submitted in effect that the Tribunal below did not apply the correct test for determining whether there was a causal connection between the appellant's disability and Prof Abbo's action or inaction. In particular, the appellant submitted that examples of the relevant tests included: "- Comparing the treatment of the perpetrator before and after the person has a disability. If there is a change in treatment prejudicial to the complainant it has been decided that there is a probable connection between the disability and the perpetrators conduct. - Comparing the treatment of the perpetrator before and after the termination of the complainant's employment. If there is a change in treatment prejudicial to the complainant it has been decided that there is a probable connection between the disability and the perpetrators conduct."
We accept that the examples given by the appellant may, depending on the circumstances of the particular case, be of assistance in determining whether conduct was engaged in "on the ground of disability". The fact that the Tribunal below did not, however, refer to such examples or apply them did not establish any error by the Tribunal in this case. The Tribunal below considered the question of causation in relation to Prof Abbo's conduct at [69]-[77]. Determining whether action or inaction is "on the ground of disability" is essentially a factual issue requiring judgment and the characterisation of conduct in terms of its causation. There was no error in not referring to the tests that the appellant has identified.
Fourth, fifth and seventh dot points - Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party, Ignores relevant material and Asking the wrong question: At par 56 of the Grounds of Appeal, the appellant submitted: "The tribunal asked itself the wrong question by ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant and Ignores relevant material. As a result the tribunal failed in to error in making the test of causation."
The relevant material said to have been ignored was identified, in dot point form, in par 57, as: Prof Holmes's letter of 11 September 2012; Dr Patel's letters of 24 and 28 August 2012 and 28 August 2013; "Permission to enquire Dr. Huw Raggatt for the release of information about my mental illness dated 28 August 2013"; the appellant's appeal letter of 27 August 2013 sent to Prof Abbo not Prof Hodgson; an email of January 2014 indicating that Prof Abbo refused to meet the appellant; an assertion by the appellant that he tried to contact Prof Abbo through a senior Graduate studies officer on 2 August 2013; Prof Abbo's letter of 1 August 2013; Rule 8 of the Rules Governing Research Higher Degree Candidature; Prof Abbo's affidavit of 15 September 2015; "the ESOS national code standard 10, Program Management Policy and Procedure Manual - Coursework, RHD Candidature Guide - Intervention strategy"; and "At risk student identification and implementation of intervention strategy, at what stage".
A review of the Tribunal's reasons demonstrates that most of these documents were expressly considered and referred to in those reasons (see for example [1], [28], [29], [32], [33], [46], [47], [68], [69], [71], [89], [91]). We do not believe that there is any substance in the appellant's submission that these documents were erroneously ignored.
As to the remainder which were not expressly referred to, namely the "Permission to enquire", the January 2014 email, the attempts to meet Prof Abbo in early August 2013, "the ESOS national code standard 10" and the Intervention strategy, the appellant has not demonstrated that the contents of these documents should have led the Tribunal below to reach different findings or conclusions. Nor has he established that they were so essential to the case that it was an error of law or an error justifying the grant of leave to appeal for the Tribunal not to have referred to them.
Sixth and eighth dot points - Inadequate reason and Credibility of witness: In par 58 the appellant submitted: "The tribunal did not consider the credibility of [Prof Abbo] in the determination of knowledge and causation test. Further, the tribunal reason is inadequate."
In our view, the Tribunal did consider Prof Abbo's credibility as to knowledge and causation. Its findings at [70], [71] and [77] made in accordance with his evidence are implicitly based on the conclusion that those aspects of his evidence were credible.
Having reviewed the Tribunal's reasons for decision as a whole, we do not accept that the Tribunal provided inadequate reasons for its decision in this regard.
Conclusion on seventh ground of appeal: We do not accept that any of the appellant's submissions establish any basis for upholding the appeal on the seventh ground of appeal. We reject that ground.

[19]

Ninth ground of appeal Par 60 and pars 61 - 65

The ninth ground of appeal challenges the findings of the Tribunal at [82] and [83]. Paragraph 60 summarises the appellant's contentions as follows: "60. The tribunal fell in to error of law at paragraph 82 and 83 on the following ground: ▪ Inadequate reason ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant ▪ Ignores relevant material ▪ legal test of in the same circumstances or materially not different ▪ Causation ground ▪ The tribunal failed to refer AD Act 1977 section 49L (2)(a) and (c)"
At [82] and [83] the Tribunal dealt with the direct discrimination complaint concerning Prof Abbo's failure to afford the appellant an opportunity to show cause why his enrolment should not be cancelled. The Tribunal held that this complaint failed on two alternative bases: 1. because when Prof Abbo made the decision to cancel the appellant's enrolment without affording an opportunity to show cause, he did not know of the applicant's mental illness or its effect and thus it followed that he did not make that decision on the grounds of the appellant's then existing disability - see [82]; 2. because the appellant had not established that, in failing to afford an opportunity to show cause prior to cancelling the appellant's enrolment, Prof Abbo treated the applicant any less favourably than he would have treated another person without the appellant's disability in the same circumstances or circumstances which are not materially different - see [83].
First dot point - Inadequate reason: At par 61 of the Grounds of Appeal the appellant merely asserts that [82] and [83] provide inadequate reasons to support the findings.
We do not accept this submission because [82] and [83] of the Tribunal's reasons cannot be read in isolation. The other paragraphs provide the findings of fact and reasoning which support those two paragraphs, which, in our view, should be seen as encapsulating the conclusions reached in the light of the all the relevant foregoing material in the reasons for decision.
Second, third and fifth dot points - Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant, Ignores relevant material and Causation ground: The appellant notes at par 61 that he has "explained above" why he says the Tribunal fell into error in holding at [82] that Prof Abbo did not make his decision on the ground of disability.
Some of the specific grounds listed in the dot points in par 60 are the same as those already addressed in relation to [70] of the reasons. As to these matters, we have explained above why we do not accept the appellant's submissions. Therefore, we refer to what we have said above, especially but not only in relation to the challenge to [70] of the Tribunal's reasons, and do not repeat it here.
At pars 62 - 64 of the Grounds of Appeal, the appellant refers to the University's Code of Conduct, Rule 8 and the Rules Governing Admission and Enrolment as reasons why he should have been offered the opportunity to show cause or his enrolment should not have been cancelled. We do not accept that these are relevant, given the finding by the Tribunal at [82] that Prof Abbo did not act as he did because of the appellant's disability. In other words, Prof Abbo may have been in breach of the applicable Code or Rules (and we express no view on whether or not he was), but this, by itself, does not establish that there was unlawful discrimination against the appellant. There must be a finding, among others, that the relevant person acted or failed to act "on the ground of disability" for there to be unlawful discrimination.
Further, it should be noted that, in any event, the Tribunal did not decide this complaint only on the basis set out in [82]. An alternative basis for the Tribunal's ultimate conclusion in this regard was put forward in [83]. Accordingly, even if the Tribunal were wrong in its conclusion at [82], it would still have reached the same ultimate conclusion for this complaint on the alternative basis.
Fourth dot point - legal test of in the same circumstances or materially not different: At par 65 the appellant submits that in [83], "there is nothing which suggests that the tribunal made the legal test requirement of in the same circumstances or material not different" and thus the Tribunal erred in law.
We accept that under s 49B(1)(a) of the AD Act, one of the elements that the Tribunal is required to consider in a direct discrimination case is whether the alleged perpetrator: "treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have [the] disability [that the person has]".
Although this is only referred to in [83] in a conclusionary way, it is dealt with in detail at [76] and [77]. Those paragraphs read together establish that Prof Abbo would have made the same decision to cancel the student's enrolment without opportunity to show cause, in the case of a student who did not have a disability, in circumstances where, like the appellant, the student: 1. was enrolled in the masters degree in Chemical Engineering after completing an undergraduate degree overseas; 2. had failed to comply with a condition that the student achieve 75% in two courses fundamental to their research; 3. had taken leave of absence and returned after being declared fit to resume study; 4. had been offered a scholarship of $22,000 and a waiver of fees in the sum of $48,000, and 5. was regarded by the student's supervisors as not having performed to a reasonable standard of research or achieved a reasonable level of progress.
In our view, the Tribunal's consideration at [76] and [77] of the issues of what are the circumstances that are the same as, or not materially different from, the appellants and how Prof Abbo would have treated another student with the disability in those circumstances is more than adequate. It does not involve any error of law or any error of fact that should attract a grant of leave to appeal.
Sixth dot point - the tribunal failed to refer AD Act 1977 section 49L (2)(a) and (c): It is true that in [82] and [83], the Tribunal below did not refer to these paragraphs of s 49L. In our view, however, this does not involve any error by the Tribunal. Under Pt 4A of the AD Act, discrimination on the ground of disability is not made unlawful in all circumstances. It is only if the discrimination occurs in one of the circumstances set out in Divs 2 and 3 of that Part, ss 49D - 49O, that the discrimination is unlawful, subject to any relevant exceptions in Div 4.
If there is no discrimination on the ground of disability falling within the descriptions in s 49B, it does not matter whether the conduct occurred in one or more of the circumstances set out in Divs 2 and 3 of that Part, ss 49D - 49O.
Consequently, since the Tribunal found that the relevant conduct did not amount to discrimination on the ground of disability within s 49B, it could not be unlawful discrimination under any of the provisions of Divs 2 and 3 of Pt 4 of the AD Act. Thus, it was unnecessary for the Tribunal to refer to or make findings concerning whether the conduct occurred in circumstances that would fall within s 49L(2)(a) or (c). Further, to the extent that the appellant did not or was not permitted to rely on these provisions at first instance, they should not be allowed to be raised on appeal.
The Tribunal did not err by failing to refer to s 49L(2)(a) or (c) of the AD Act.
Conclusion on ninth ground of appeal. For these reasons, we reject the ninth ground of appeal.

[21]

Eleventh ground of appeal Par 67 and pars 68 - 74

The appellant summarised this eleventh ground of appeal at par 67 of the Grounds of Appeal as follows; "The steps the tribunal followed in the tribunals decision on paragraph 87 constitutes error of law for the following reasons: a. Irrelevant consideration b. Identified wrong issue c. Asked the wrong question d. The member misconceived the interpretation of discriminatory conduct and less favourable treatment e. The tribunal took assumptions f Comparator ground. The tribunal failed to take a comparator, either actual or hypothetical. Paragraph 87 failed to show what comparator the tribunal took."
At [87], the Tribunal below was as follows: "A Statement of Account produced by the applicant to the Tribunal discloses that he had in any event availed himself of those support services on 7 January 2013, 21 January 2013 and 18 February 2013, by consulting with Mr Pascoe, a psychologist within the University Health Service, on referral from Dr Raggatt. He had also availed himself of those services in 2012 by seeing Dr Murugasu and Dr Schien. The applicant was well aware of the existence, nature and availability of those services before Professor Abbo became involved. He needed no guidance from Professor Abbo in that regard. For that reason, any failure by Professor Abbo to refer him to those services prior to the exams, even if Professor Abbo had been aware of a need for them, did not subject the applicant to any unfavourable treatment, or treatment less favourable than would have been afforded to a student without his particular disability. For that reason, even if Professor Abbo had been aware of a need for such services prior to the exams - which we are satisfied he did not - the complaint of direct discrimination on this ground would fail."
These findings related to the complaint that the University had directly discriminated against the appellant when Prof Abbo failed to obtain intervention strategies to assist the appellant, which was dealt with at [84]-[88] of the Tribunal's reason.
Subpars (a), (b), (c) and (d) - Irrelevant consideration, Identified wrong issue, Asked the wrong question and The member misconceived the interpretation of discriminatory conduct and less favourable treatment: As we understand it, pars 68 - 72 of the Grounds of Appeal contain the appellant's submission concerning subpars (a) to (d).
One issue is said, in par 68, to be "whether that particular act of [Prof Abbo] has provided and implemented intervention strategy which is a benefit provided by the university for every student". The second aspect of this issue was said in par 68 to be "about denial or limitation of provision of benefit not the provision of services." It was then submitted that the "tribunal; in this paragraph [87] entertained the meaning of "services" under the [AD Act]". It was also contended, in par 69, that the Tribunal had done the same in [86].
The appellant then referred to State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [155] concerning the meaning of "services" in s 19 of the AD Act, which is equivalent for the purposes of disability discrimination, to s 49M.
As we understand it, the point appears to be that the Tribunal fell into error by considering the provision of "services" not "denial or limitation of benefits and subjecting to a detriment" and whether that amounted to less favourable treatment within s 49B(1)(a) (see pars 69 and 72).
We do not accept that, at [87] in particular, or in [84] - [88], the Tribunal was considering the provision of "services" rather than considering whether there had been less favourable treatment for the purposes of s 49B(1)(a). The Tribunal started this part of its analysis by noting that Prof Abbo agreed that he had not implemented any intervention strategy in favour of the applicant (Reasons at [84]). Thus, it was not an issue of whether Prof Abbo had provided such a strategy but rather whether, by not providing it, there had been discrimination within s 49B(1)(a) of the AD Act. The Tribunal's reasoning in this regard was, in summary: 1. Prof Abbo's failure to refer the appellant to implement intervention strategies was not a decision made on the ground of disability because he was unaware of the appellant's then current disability (Reasons [84]); 2. The appellant had not established that in the same circumstances, Prof Abbo would have treated a student without the disability differently by implementing an intervention strategy (Reasons [85]); 3. Any failure by Prof Abbo to refer the appellant to services available did not involve the appellant being subjected to less favourable treatment than would have been afforded to a student without his particular disability (Reasons [87]); and 4. The appellant had not established that Prof Abbo would have directed another student without the applicant's disability to support services, or implemented any other intervention strategy, in circumstances where, as here, Professor Abbo was unaware that the student had need of such services ( Reasons [88]); 5. On each of those bases the complaint of direct discrimination based on failure to refer for intervention strategies (or similar services) would fail.
Although its reasons are not expressed in terms always reflecting the exact wording of s 49B(1)(a), we are of the view that the Tribunal in [84]-[88] did not address the irrelevant question of whether Prof Abbo did or did not provide "services" to the appellant. Rather it addressed issues thrown up by s 49B(1)(a).
Further, the significant factual finding in [87] was that Prof Abbo's failure to refer the appellant to the services referred to did not involve the appellant being treated less favourably than he would have treated a student without his particular disability. This relates to the test of direct discrimination in s 49B(1)(a) of the AD Act. The conclusion of the Tribunal in [87] may not be expressed as clearly or neatly as possible but it is sufficiently clear that the Tribunal was in effect saying that: 1. the appellant did not need Prof Abbo to refer him to the services, or intervention strategies available, as the appellant was already aware of them; 2. thus, by not referring the appellant to them Prof Abbo was not treating him unfavourably or less favourably. In other words, there was no lack of favourable treatment in respect of the appellant; and further 3. in the case of a student who was aware of the services but did not have the appellant's disability, Prof Abbo would not have referred that student to those services or intervention strategies; 4. consequently having regard to all those circumstances, there was no discrimination on the ground of disability falling within s 49B(1)(a), even if Prof Abbo had been aware of the appellant's then current disability. 5. It may be the case that the finding in effect that there was no lack of favourable treatment in respect of the appellant may have been strictly unnecessary. Nonetheless, the fact that such a finding was made was not unreasonable and, in any event, does not invalidate the conclusion or the remainder of the argument in [87].
In this context, the appellant refers (at par 71) to the Federal Court's decision in Tate v Rafin [2000] FCA 1582 at [52] and [53] and submits "it is not an answer in the discrimination proceeding to say that a person can get the services … from another department or section of the organization".
Tate v Rafin concerned a complaint of disability discrimination under the Disability Discrimination Act 1992 (Cth) (the DD Act). Mr Tate complained that a cricket club discriminated against him on the ground of disability by not selecting him to play and, subsequently, by expelling him form the club, because of an injury and a psychological disability, contrary to ss 5 and 24, among others, of the DD Act.
Sections 5(1) and 24 of the DD Act are the provisions of the Commonwealth Act which correspond, in substance, with ss 49B(1)(a) and 49M of the AD Act, respectively. Sections 24 and 49M both establish that it is unlawful for a person who provides services to discriminate against a person on the ground of disability by refusing to provide the person with those services. The club argued that the claim under s 24 should fail because its actions did not altogether deprive Mr Tate of the opportunity of playing cricket, for example for another club. Wilcox J held at [53]: "However, it is no answer to a claim of discrimination by refusal of provision of … services … to say that the discriminatee is, or may be, able to obtain the … services … elsewhere. The Act is concerned to prevent discrimination occurring; that is why it makes the particular discriminatory act unlawful and provides a remedy to the discriminatee. …".
It can be seen from this part of the Court's decision that it was not dealing with less favourable treatment under s 5(1) of the DD Act (equivalent to s 49B(1)(a) of the AD Act). In [87] of its reasons for decision, the Tribunal below was not dealing with s 49M but rather the test of direct discrimination in s 49B(1)(a). Thus, Tate v Rafin has no direct relevance in the present matter. It was not part of the University's case or the Tribunal's conclusions that the appellant's claim failed because the appellant was not refused services within s 49M.
Consequently, we believe it would be wrong to conclude that the Tribunal took into account irrelevant considerations, identified a wrong issue, asked the wrong question or misconceived the interpretation of discriminatory conduct and less favourable treatment, as submitted by the appellant.
Subpars (e) and (f) - The tribunal took assumptions and Comparator ground: These two subparagraphs are both related to what the comparator was in the Tribunal's analysis in [87] of its reasons. At par 73 of the Grounds of Appeal, the appellant submitted:
"The tribunal has taken assumptions which are not permitted in law. The reason of paragraph 87 of the tribunal's decision did not indicate or implied that what comparator the tribunal took to reach those conclusion. Therefore, there is a failure of taking a comparator. This is also another legal error."
The word "comparator" does not appear in the AD Act or the Commonwealth DD Act. Nonetheless, "comparator" is often used in cases dealing with direct discrimination under those Acts, see for example Purvis v New South Wales [2003] HCA 62; 217 CLR 92. The High Court in Purvis explained the role of a "comparator" under s 5(1) of the DD Act, which is not materially different in this regard to s 49B(1)(a) of the AD Act, at [213], [214], [217] and [224] as follows: "213 Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability 'in circumstances that are the same or are not materially different'. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator 'treats or would treat a person without the disability' (emphasis added). The 'comparator' identified by s 5(1) is 'a person without the disability'. 214 The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. …. … 217 What is meant by the reference, in s 5(1) of the Act, to "circumstances that are the same or are not materially different"? Section 5(2) provides some amplification of the operation of that expression. It identifies one circumstance which does not amount to a material difference: "the fact that different accommodation or services may be required by the person with a disability". But s 5(2) does not explicitly oblige the provision of that different accommodation or those different services. Rather, s 5(2) says only that the disabled person's need for different accommodation or services does not constitute a material difference in judging whether the discriminator has treated the disabled person less favourably than a person without the disability. … 224 The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different."
At [87], the Tribunal identified the "comparator" as "a student without [the appellant's] particular disability". This is in accordance with how the High Court approached the issue in Purvis, for example at [214]. It is true that the Tribunal did not spell out in detail in [87] what were the "the same circumstances, or in circumstances which are not materially different" which is also an element of applying the comparator test required by s 49B(1)(a). That does not, however, establish that the Tribunal erred. It had already set out in some detail the "objective features which surround the actual or intended treatment of the disabled person by [Prof Abbo]" at [76] and [77], when considering Prof Abbo's evidence concerning the allegation of discrimination on the basis of Prof Abbo's cancelling the appellant's enrolment without the opportunity to show cause. It might have been preferable for the Tribunal to have repeated this material in its analysis at [87] to put the matter beyond doubt but it was not necessary. If the Tribunal's reasons are read as whole, it is clear that the identification of the relevant circumstances at [76] and [77] for making the required comparison were applied by the Tribunal throughout its analysis of the various complaints of direct discrimination.
Further and alternatively, the finding that Prof Abbo did not treat the appellant less favourably than he would have treated any student without the appellant's disability includes in the present case, as a matter of logic, the finding that Prof Abbo did not treat the appellant less favourably than he would have treated a student without the appellant's disability having the characteristics set out in at [76]. The greater includes the lesser.
For these reasons we do not accept that the Tribunal fell into error in making unfounded assumptions or misapplying the "comparator" test as the appellant contended.
Conclusion on eleventh ground of appeal. For these reasons, we reject the eleventh ground of appeal.

[22]

Twelfth ground of appeal Par 75 and pars 76 - 81

The twelfth ground of appeal is summarised at par 75 of the Grounds of Appeal as follows: "75. The tribunal failed to identify the legal test of circumstance identification The tribunal fails error of law in the identification of legal requirement of circumstance which is the same or materially not different (tribunal decision paragraph: 82, 83, 84, 85, 88, 89, 91, 92, 93) Did not took relevant consideration "
In the Tribunal's reasons, [82] - [93] relate to the direct discrimination claims in which the comparison to be made is between the treatment of the appellant and a person without the appellant's disability in "the same circumstances, or in circumstances which are not materially different" from those of the appellant. As we have explained above, if the Tribunal's reasons are read fairly as a whole, it is clear that the acceptance of Prof Abbo's evidence at [76] and [77] also serves to identify the relevant circumstances for making the required comparisons not only in relation to the complaint based upon the cancellation without opportunity to show cause but also for all the other direct discrimination complaints.
In pars 78 to 81 of the Grounds of Appeal, the appellant identified what he said were relevant circumstances, which should have been considered by the Tribunal but were not. These were: the fact that Prof Abbo "did not cancel a student with a disability even if the student run for the second year of the course work"; the Rules Governing Admission and Enrolment; and Rule 8 of the Rules Governing Research Higher Degrees.
In our view these are not relevant circumstances that the Tribunal was required to identify and consider in carrying out the process of comparison required by s 49B(1)(a). Even if they were, it does not appear to us that they would have led to the Tribunal reaching a different conclusion. Finally, the conclusions challenged under this ground of appeal were essentially factual findings which were open to the Tribunal and no sound basis for granting leave to appeal from those findings has been established.
We reject the twelfth ground of appeal.

[23]

Thirteenth ground of appeal Pars 82 and 83 and pars 84 and 85

The thirteenth ground of appeal concerned the Tribunal's reasons at [89] - [93]. It was said at pars 82 and 83 of the Grounds of Appeal that: "82. At paragraph 89 to 93 the tribunal failed to refer AD Act 1977 section 49L(2)(a), (c) and 49M(1)(b). The tribunal failed to make the legal test and interpretation of benefit, detriment and service under the AD Act 1977 meaning. 83. The tribunal decision 80 to 93 failed in to error of law in the following respect: ▪ The fact finding is perverse ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party ▪ Ignores relevant material ▪ Inadequate reason ▪ The tribunal asks itself the wrong questions ▪ Taking irrelevant consideration ▪ Denial of procedural fairness "
As to par 82, there was no error by the Tribunal in not referring to ss 49L or 49M in its analysis at [89]-[93]. This is because the Tribunal in those paragraphs was considering the direct discrimination complaint based upon Prof Abbo's incorrect reference to an appeal under rule 42. The Tribunal held that there was no direct discrimination within the meaning of s 49B(1)(a) in this regard. As we have explained above, in these circumstances whether or not the relevant conduct fell within ss 49L or 49M was immaterial and did not need to be considered.
As to the dot point list of defects in par 83, the appellant submitted that the ESOS National Code, Standard 10 was also a relevant circumstance that should have been considered in [89]-[93]. For the reasons given above in relation to the preceding ground of appeal, we do not consider this was part of the relevant circumstances required to be taken into account in the comparator test.
At par 85, the appellant submitted that the Tribunal erred at [91] by referring to and taking into account the appeal considered by Prof Hodgson. As we understand it, [91] was in part explaining the events which occurred as a result of the incorrect reference to an appeal under rule 42 and in part was to support the conclusion that there was no "less favourable treatment" or detriment, within the meaning of s 49B(1)(a). There was no perverse fact finding, taking into account of an irrelevant consideration or lack of fairness in this regard.
We reject the thirteenth ground of appeal.

[24]

Fourteenth and Fifteenth grounds of appeal generally - pars 86 - 90

The fourteenth and fifteenth grounds of appeal challenge the Tribunal's reasoning and conclusions in respect of the indirect discrimination complaint.
Indirect discrimination is defined in s 49B(1)(b) of the AD Act in the following terms: "(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator: … (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability …. comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply."
The appellant's indirect discrimination complaint was summarised by the Tribunal at [5] of its reasons as follows: "The [appellant] also complains that the University discriminated against him indirectly, by requiring him to obtain a minimum of 75% in each of his two courses. He says this is a requirement with which a substantially higher proportion of people without his disability comply or are able to comply than the proportion of people with his disability. Though the disability was not precisely defined by the applicant, he adduced medical evidence that in 2012 he had suffered from a psychological condition whose symptoms included depression, and that from February 2013 he had suffered from a major depressive illness."
The Tribunal identified the issues it had to determine in respect of the complaint of indirect discrimination at [13] of its reasons: "(1) Whether a substantially higher proportion of persons without the applicant's disability achieve or are able to achieve at least 75% in each of the two undergraduate courses referred to above. (2) If so, whether the requirement that the applicant achieve 75% or more in those courses was not reasonable having regard to the circumstances of the case."
We note that the appellant did not contend that these were not, in the circumstances, the relevant issues upon which the question of whether there was indirect discrimination would turn.
We shall now consider each of the fourteenth and fifteen grounds in turn.

[25]

Fourteenth ground of appeal Par 86 and 87 - 89

At par 86 of the Grounds of Appeal, the fourteenth ground was formulated as follows: "At paragraph 98 the tribunal fell in to error of law in the following respect: ▪ Misconceived the meaning of disability ▪ Asked itself the wrong question ▪ There is no evidence to be based for the conclusion it reached ▪ Inadequate reason given ▪ The fact finding is perverse ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant ▪ Ignores relevant material".
The Tribunal below held at [98] as follows: "However the base pool is characterised, we are not satisfied that graduates with depressive illness seeking entry to, or enrolled in, higher degrees (including higher degrees in Chemical Engineering) are less able to comply with a requirement to achieve 75% in undergraduate courses generally, or specifically in the two undergraduate courses which [ZDB] and his colleagues were required to undertake. For those reasons, the complaint of indirect discrimination fails."
The "base pool", also known as the "base group", referred to by the Tribunal, is the total pool or group against which the proportions referred to in s 49B(1)(b) are to be calculated - see for example the explanation in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; 168 CLR 165 at [15] - [18] (the sex discrimination provisions in s 24(3) of the AD Act which were the subject of that case were not different in material respects from the indirect disability discrimination provisions in s 49B(1)(b) of the Act).
In the Tribunal below, the appellant and the University each identified the base group in a different way, as explained in [95]-[97] of the Tribunal's reasons. The point being made by the Tribunal at [98] was that, whether the Tribunal adopted the base pool or group as proposed by the appellant or by the University, the result would be the same. In neither case, did the evidence establish that the proportion of the base group without depressive illness who could comply with the requirement was "substantially higher" than the proportion of those with depressive illness who could comply. The deficiencies in the evidence had been referred to in [96] and [97].
The first three dot points - Misconceived the meaning of disability, Asked itself the wrong question and There is no evidence to be based for the conclusion it reached: At par 87 of the Grounds of Appeal, the appellant submitted that the Tribunal erred by considering depressive illness in general rather than considering the severity of the depression and the meaning of "disability" in determining whether "the person satisfied those conditions". He also submitted in that same paragraph: "A person is covered by disability law if his day to day activity is affected by an underline disorder mental or physical nature for a long time. If the disorder is not affecting the person daily activity for long period he cannot be covered by disability law and cannot be said he has a disability. As a result the tribunal's decision and its conclusion are irrational, illogical and miss conceived the legal meaning of disability."
"[D]isability" is defined in s 4(1) of the AD Act as meaning: "(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour."
There is nothing in that definition which would restrict "disability" in the way that the appellant contends. In our view, it would be wrong to hold that only disabilities which affect a person's day to day activity or which persist for a long time attract the operation of Pt 4A of the AD Act, "Discrimination on the ground of disability".
Accordingly, we do not accept that the Tribunal below at [98] erred as contended. Nor do we accept that the decision was irrational, illogical, misconceived or involved the Tribunal asking the wrong question, in this regard. The conclusion was based on the lack of evidence. Consequently, there is a degree of illogicality in challenging the conclusion on the ground that there was no evidence to support it.
The last four dot points - Inadequate reason given, The fact finding perverse, Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant, Ignores relevant material: At par 88 of the Grounds of Appeal, the appellant contended that the Tribunal did not take into account characteristics of a person with depression, namely that it was "common knowledge … that depression result poor academic performance". The appellant did not submit that there was any evidence on this topic before the Tribunal. In our view, the absence of such evidence was sufficient to justify the Tribunal's conclusion in this regard.
Even if it were "common knowledge", as the appellant contended, that some depression has an adverse effect on academic performance, this is not sufficient for the appellant to succeed. It appears to us that it would be necessary to distinguish between the different types and severity of depressive symptoms and whether the depression was being effectively treated or not.
The comparison required by s 49B(1)(b) is between the proportion of persons having the appellant's disability who can comply with the requirement and the proportion of persons "who do not have that disability" who can comply with the requirement" (our emphasis). In this regard, s 49B(4) of the AD Act provides: "(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
The evidence before the Tribunal as to the type and severity of the appellant's depression at relevant times was not particularly detailed. It established little more than that the appellant was suffering depression or depressive symptoms and at times the depression was described as "severe". It was unclear whether it was being effectively treated or not, at relevant times.
The Tribunal is not bound by the rules of evidence in a case such as the present. Nonetheless, the rules concerning judicial notice can provide guidance as to how the Tribunal might carry out its functions. In the present case, however, even if we did take judicial notice that depression can result in poor academic performance, this does not assist the appellant. This is because not every type of depression, whether effectively treated or not, can be taken to have such an adverse effect on academic performance that the Tribunal could conclude that a substantially higher proportion of relevant students without the appellant's disability complied or could comply with the requirement to obtain more than 75% in the two coursework subjects than the proportion of such students without that disability. In short, the "common knowledge" upon which the appellant sought to rely would not, in our view, be sufficient to sustain the conclusion necessary for the appellant to be successful in establishing his indirect discrimination complaint.
We do not accept that the Tribunal's reasons were inadequate or that there was no evidence to support its conclusion. We also reject the assertions in par 89 of the Grounds of Appeal, as expanded upon in par 173 of the Appellant's Brief, that the decision was perverse or that the Tribunal asked the wrong question or that its reasons were inadequate. The Tribunal's reasons at [98] did not "determine the proportion of compliance" and thus did not involve any failure to use "proper procedure" or asking the wrong question or inadequate reasons. At [98] the Tribunal was pointing out the consequence of the appellant's failure to discharge the onus of proof, namely the Tribunal was not satisfied that a necessary factual element of the appellant's complaint had been established.
Conclusion on fourteenth ground of appeal. For these reasons, we reject the fourteenth ground of appeal.
In addition, even if we are wrong in all of these reasons, it would not follow that the appeal should be allowed in relation to the indirect discrimination complaint. This is because there is an additional element that must be established if the appellant is to succeed in proving indirect discrimination, namely that the requirement to obtain results in excess of 75% was "not reasonable having regard to the circumstances of the case". Thus, to succeed on this appeal in relation to indirect discrimination, the appellant would also need to establish that the Tribunal below erred in relation to its rejection of the proposition that the 75% requirement was "not reasonable having regard to the circumstances of the case".

[26]

Fifteenth ground of appeal Par 90

The appellant's fifteenth ground of appeal was set out in par 90 of the Grounds of Appeal as follows: "90. At paragraph 99 the tribunal fell in to error of law in the following respect: ▪ Miss conceived the meaning of reasonableness test under the meaning of AD Act 1977 ▪ The tribunal refers an admissible evidence from my supervisors affidavit pleading ▪ Ignores relevant consideration in the judgement of reasonableness ▪ The tribunal took assumptions ▪ The tribunal did not make the legal test of pool identification ▪ Inadequate reasons ▪ No evidence"
This ground related to [99] of the Tribunal's reasons which was as follows: "Even if there were evidence tending to show that a substantially higher proportion of people without the [appellant's] disability complied or were able to comply with the condition of enrolment, and that evidence was accepted, to succeed the applicant must also prove that the requirement was unreasonable in the circumstances. The reason for the imposition of the 75% condition was set forth in the affidavits of the two supervisors. Unless a candidate were able to comply with that condition, they were unlikely to be able successfully to complete the Masters degree program. It was, in effect, an early test of a candidate's likelihood of successful completion, administered by the University in the first semester of candidature, before the candidate (or, in the case of a candidate whose fees were waived, the University) incurred further expenses in the administration of the degree course. No evidence was brought to demonstrate that such a requirement was unreasonable. On the contrary, it seems to us that it is quite reasonable for a University to require a Masters degree student to demonstrate, early in the course, that they have the skills to complete it. In the proper administration of a higher degree by research, a University needs to know, and is entitled to test, whether its candidates have sufficient knowledge and skills to complete the higher degree. It seems to us that the requirement was reasonable."
We have referred to the Tribunal's findings in this regard above. Those findings were based upon the evidence summarised by the Tribunal below at [22] - [24], [51] of its reasons and accepted, in general terms, at [64] and expressly adopted in [99]. The Tribunal's finding that "the requirement was reasonable", although it does not follow the exact wording of s 49B(1)(b) means that the Tribunal rejected the contention that the 75% requirement was "not reasonable having regard to the circumstances of the case". To read the decision otherwise would be perverse.
In determining whether the 75% requirement was "not reasonable having regard to the circumstances of the case", it could be said that the Tribunal was required to make a broadly based value judgment having regard to the material before it. In our view, the Tribunal's conclusion in this regard at [99] is clearly a finding of fact, see Perpetual Trustee Company Limited v Khoshaba [2006] NSWCA 41; 14 BPR 26639 at [37] and [40]. Unless affected by an error of law, the appellant would require leave to appeal in respect of that finding, under s 80(2)(b) of the NCAT Act.
There does not appear to us to be any proper basis upon which we would could accept the appellant's submissions that the Tribunal at [99] misconceived "the meaning of reasonableness test under the meaning of [the AD Act]" or that the Tribunal "[i]gnored relevant considerations in the judgement of reasonableness". It can be accepted that the Tribunal is required "to determine [the question of whether the requirement was not unreasonable] in all the circumstances of the case", as the appellant submitted. The Tribunal's reasoning and conclusion in [99] indicates that this is what it did. Given the evidence as to why the requirement was imposed and the absence of evidence which established that it was an unreasonable requirement in the circumstances, it was open to the Tribunal to reach the conclusion that it did in [99].
The "legal test of pool identification" does not appear to us have any relevance to the Tribunal's decision at [99], which considers the reasonableness element of the test in s 49B(1)(b) not the comparison of proportions element.
The Tribunal's reasons in relation to its conclusion concerning "reasonableness" were adequately spelt out in [99]. The findings upon which the Tribunal based its conclusion were set out earlier in its reasons at [22] - [24], [51], [64]. The reasons in [99] read in the context of the decision as a whole were not inadequate, as the appellant contended. Nor in the light of the Tribunal's summary of the evidence and findings could it properly be said that there was "[n]o evidence" to support the Tribunal's conclusion in relation to reasonableness.
Thus, we are not satisfied that there was any error of law identified by the appellant in relation to the Tribunal's findings at [99]. Nor were we satisfied that there was any basis for granting leave to appeal, having regard to the principles set out earlier in these reasons.
For these reasons, we reject the fifteenth ground of appeal.

[28]

Seventeenth ground of appeal Par 92

This ground of appeal was formulated as follows in par 92 of the Grounds of Appeal: "At paragraph 10 and 11 the tribunal fell in to error of law in the following aspect: ▪ The tribunal failed to refer AD Act 1977 49M (1) (b), 49L (4)".
At [10] and [11], the Tribunal was setting out the legislative provisions that were said to be applicable, namely ss 49B(1) and (2) and 49L(1) and (2) of the AD Act. The Tribunal did not quote ss 49M(1)(b) or 49L(4).
The Tribunal did not need to refer to the terms of s 49M and s 49L(4) in the present case, as the complaints could all be determined by reference to s 49B. In other words, because the appellant failed to establish that there was any direct or indirect discrimination on the ground of disability within s 49B(1)(a) or (b), the Tribunal could find on that basis that the complaints had not been substantiated. It was not necessary to consider whether the conduct complained of fell within any particular provision of s 49L or s 49M.
There was no error of law by the Tribunal in failing to refer to those additional provisions.
Under this ground, the appellant also submitted: "The tribunal made alleged errors in two respects. First, the tribunal's formulation of the test to be applied in determining whether the requirement was or was not reasonable was incorrect. Secondly, the Tribunal failed to take any or sufficient account of all the considerations that were relevant to the determination of reasonableness."
As we have explained above, the finding that the 75% requirement was not "not reasonable having regard to the circumstances of the case" was a finding of fact. The circumstances the Tribunal took into account and the evidence and findings upon which it was based are clearly set out in its reasons for decision.
In addition, we do not accept that the Tribunal failed to take into account all the considerations that were relevant. In his submissions, the appellant suggested that his particular circumstances made the imposition of the requirement unreasonable. He drew attention to the circumstance "where the University had admitted that intervention strategy had not been provided to me". This admission was recorded, for example, at [7] of the Tribunal's reasons in the following terms: "The University agrees that Professor Abbo did not implement any strategies for intervention …" and is the subject of the analysis at [84]-[88].
The requirement to obtain 75% or more in a course or courses was a general requirement for students undertaking a masters level degree in Chemical Engineering and it was not applied just to the appellant, see [22] - [24], [51], [63], [64], [66] and [99]. Further, although it was admitted that Prof Abbo did not implement any strategies for intervention for the appellant, the evidence established that the appellant had the benefit of being granted leave of absence to allow him to recover in the latter half of 2012 without the loss of his scholarship or enrolment in the following year (see for example [33] - [35]) and of significant support services from the University's Health Service (see for example [87]). Thus, even if the particular circumstances of the appellant were relevant in the present case, the fact that Prof Abbo did not implement any strategies for intervention for the appellant would not justify the conclusion that the Tribunal erred. Support and intervention strategies were made available by others. It was still open for the Tribunal to conclude that the appellant had failed to establish that the general requirement for students seeking to undertake a masters level degree course in Chemical Engineering, such as that undertaken by the appellant, to obtain at least 75% in a course or courses was not reasonable in the circumstances of the case.
We can discern no error of law in the Tribunal's test, reasoning or conclusion. There is no basis for granting leave to appeal from the Tribunal's conclusion in this regard.
We reject the seventeenth ground of appeal.

[29]

Eighteenth ground of appeal Par 93

This eighteenth ground of appeal is found in par 93 of the Grounds of Appeal as follows: "Failing to allow the applicant a fair opportunity to put his case".
Immediately following this in the paragraph under par 93, however, the appellant indicates that the substance of this ground is that the Tribunal permitted Dr Altarawneh to amend his affidavit during the hearing on 4 February 2016. The appellant submitted that this was not fair and disclosed bias on the part of the Tribunal.
Dr Altarawneh had provided an affidavit which had been filed and served prior to the hearing. He gave his evidence by telephone on 4 February 2016. The transcript records the following at pp 6 - 9: " , CALLED(10.28AM) Q. Yes. Thank you Dr Altarawneh. You have prepared an affidavit for the purpose of the proceedings dated 10 July 2015? A. Yes. Q. At that time you were no longer an employee of the University of Newcastle, is that right? A. That's correct. Q. You are now an employee of Murdoch University in Western Australia? A. Yes. Q. I understand that you wish to correct a part of your affidavit which is paragraph 43. Can I take you to that? A. Yes, sure, just one minute. APPLICANT: I'm just Senior Member, object to this. SENIOR MEMBER PERRIGNON: Yes, I'll hear you [ZDB]. SHARIFF: Yes-- SENIOR MEMBER PERRIGNON: Just let him ask the question and we'll stop. SHARIFF: Would you wish me to just ask the question? SENIOR MEMBER PERRIGNON: Yes, please. Professor, please don't answer this question. Mr Shariff will ask it and then we're going to talk about it. WITNESS: Okay. SHARIFF Q. Dr Altarawneh, what is the correction you wish to make to paragraph 43? SENIOR MEMBER PERRIGNON Q. Well you'd better, you'd better answer that, that's so I know what it's about. A. Is this 43? SHARIFF: Yes. APPLICANT: Objection, Senior Member. SENIOR MEMBER PERRIGNON: Yes, I'll hear you on it just let me find out what the amendment's going to be. WITNESS: Yeah, well, well it was March 2013 it wasn't 2012. SENIOR MEMBER PERRIGNON Q. I see, you wish to amend 2013 to read 2012, Professor? A. That's correct. SENIOR MEMBER PERRIGNON: All right, is there an objection to that, [ZDB]? APPLICANT: Yes, I object because it's irrelevant. Once he submit an affidavit at the time of the hearing after all sections have been covered and he analyse everything, he cannot change the situation now. SENIOR MEMBER PERRIGNON: Yes, well that's a matter of procedure, [ZDB]. Let me explain it to you. Witness can by-leave amend errors that they have made in their sworn evidence, particularly in affidavits like this. Of course you can ask questions about it. You might say well-- APPLICANT: No, in White Oaks, in White Oaks - several of them in previous decisions such as White Oaks, they - the Tribunal decided that by submissions the other party asked the doctor's submission, they would like to ask an amendment after seeing the other party's document so as-- SENIOR MEMBER PERRIGNON: I see, what decision is that, [ZDB]? APPLICANT: White Oaks. SENIOR MEMBER PERRIGNON: Whitehorse? O'HALLORAN: White Oaks. APPLICANT: White Oaks. SENIOR MEMBER PERRIGNON: White Oaks. Yes? APPLICANT: That decision, the Tribunal-- SENIOR MEMBER PERRIGNON: And what Tribunal? APPLICANT: The ADT. SENIOR MEMBER PERRIGNON: The Administrative Decisions Tribunal? APPLICANT: Yeah. SENIOR MEMBER PERRIGNON: Yes, and what year was that? APPLICANT: I think 2012, around that. I can bring the-- SENIOR MEMBER PERRIGNON: Are you familiar with that decision? SHARIFF: No, I'm not. SENIOR MEMBER PERRIGNON: No. All right, nor am I, [ZDB]. Are you either - Tribunal refused to do what, [ZDB]? APPLICANT: Sorry? SENIOR MEMBER PERRIGNON: The Tribunal refused to do what? APPLICANT: Yeah, the Tribunal refused by submissions, no party can amend the, the faults that they've already mentioned. SENIOR MEMBER PERRIGNON: So they can't bring more evidence by the time they get say, submissions, is that right? APPLICANT: No, no, no. No, what happened is all parties have submitted. After the other party have seen the other party's submissions, they ask the Tribunal to amend. Then the Tribunal decided that after you have-- SENIOR MEMBER PERRIGNON: To amend what? APPLICANT: Amend already mentioned fact. SENIOR MEMBER PERRIGNON: Some evidence previously given? APPLICANT: They mention some evidence like what Dr Altarawneh did here, the other party respond to that, then after that party, after have seen the other party evidence, they ask the Tribunal, no, no, we, we need to change what we have already given. SENIOR MEMBER PERRIGNON: And at what stage of the proceedings was the request made? Was it made after the - all the evidence had been brought? APPLICANT: Yeah, after all the evidence brought. SENIOR MEMBER PERRIGNON: I see, I see. Thank you, [ZDB]. That is distinguishable from this case, this is made in the course of the respondent's case. I allow the amendment. But [ZDB] you can now - and I'll make it by hand and I'll omit 2012 - but [ZDB], you can make use of it. You might ask the Professor well why did he make that mistake? APPLICANT: No, was he - just have my information before. The reason why he mentioning here is he can't - if this is not the right information, he was able to do beforehand, not now. So candidly, after he analyse - have that information he cannot change that original - sees that. He is already - able to change these factors. It's not my - you cannot say that it is a typical error or anything because he - the professor has seen, has reviewed it, he send it already. SENIOR MEMBER PERRIGNON: Well you can put that to the Professor, that's why he's here this morning. APPLICANT: Not to the Professor, just I'm submitting to the Tribunal not to amend because I object. The objection is not, is not the right time, that's what I'm saying. The time is not because already we'll have submitted to the parties or evidence. By submission, it is - the other party will be prejudice because this is my evidence for me already." SENIOR MEMBER PERRIGNON: Thank you, I've heard your submissions [ZDB]. I allow the amendment, I have made it, and I have initialled it."
In our view, what occurred in relation to the amendment of Dr Altarawneh's affidavit was not an uncommon occurrence in courts or tribunals that receive evidence by way of affidavit. Any witness who realises that he or she has made a mistake in evidence can, and indeed should, disclose this to the body hearing the matter. The witness can be allowed to change his or her evidence. The mistake and its corrections can be the subject of cross-examination and submission by the opposing party. Depending on the circumstances, amending the evidence may add to or detract from the witness's credibility.
The way in which the Tribunal proceeded was entirely appropriate. It involved no unfairness to the appellant and could not legitimately be thought to give any foundation for a finding of apprehended or actual bias.
We reject the eighteenth ground of appeal.

[37]

Twenty-sixth ground of appeal Par 102

In par 102 of the Grounds of Appeal, the appellant contended: "At paragraph 63 the tribunal fell in to error in the following respect: ▪ The fact finding is perverse ▪ Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by the appellant ▪ Ignores relevant material ▪ Inadequate reason".
At [63], the Tribunal said: "The evidence of Professor Dlugogorski is consistent with that of Dr Altarawneh and, to the extent summarised above, is not contradicted by other evidence. For those reasons, we accept their evidence and make findings of fact in accordance with it."
As we have stated above, it appears to us that the Tribunal went about making its findings of fact in an orthodox and reasonable manner. It is not perverse to accept evidence given on oath, which was consistent with the evidence of other witnesses and with other evidence, including documentary evidence. Further, the Tribunal recorded at [16]: "However, save for two issues, the Tribunal was unable to discern any significant differences between the parties in terms of the facts alleged, many of which were evidenced by contemporaneous documents, including correspondence and medical and other reports."
The two factual issues in dispute were: whether the appellant suffered a disability; and whether Prof Abbo, when he decided to cancel the appellant's enrolment, was aware of the disability. On the first issue, the Tribunal found in favour of the appellant. On the second, the Tribunal found in favour of the University but, even if it had determined that issue in favour of the appellant, he would still not have been successful.
We have dealt with many similar submissions, some concerning findings based upon the evidence of Dr Altarawneh and Prof Dlugogorski, above. Once again we do not find that there is any substance in the complaints made by the appellant against the conclusion of the Tribunal at [63].
We reject the twenty-sixth ground of appeal.

[38]

Leave to Appeal

As we have noted above, in the Grounds of Appeal, under the heading "6. Leave to appeal:" at pars 105 to 123, the appellant sets out various reasons why he says that Tribunal was "wrong in reaching at its conclusion" as follows: "105. The finding was not on the evidence for its decision at paragraph 70, 80, 81, 83, 91, 92, 98, 99, 106. The finding of fact was, "inconsistent with the facts incontrovertibly established by the evidence" or "glaringly improbable" 107. Its decision at paragraph 60, 80, 81, 82, 83, 84, 85, 88, 89, 91, 92, 93, 95, 96, 98, 99 108. By amending the pleading of my supervisors at the hearing after the submission of all evidence by the parties the tribunal made injustice to the applicant. 109. By not granting adjournment to the appellant 110. By not conducting the hearing according to its jurisdiction 111. By not applying the legal test of causation 112. By not applying the legal test of less favorable treatment 113. By not applying the legal test of circumstance identification 114. By misconstruing or not taking relevant consideration in the interpretation of reasonableness in indirect discrimination 115. By not considering all the applicants evidence 116. No comparator test undertaken 117. Ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party 118. The fact finding is perverse 119. Identified the wrong issue 120. Asked the wrong question 121. The member misconceived the interpretation of discriminatory conduct and less favourable treatment 122. The Tribunal took assumptions 123. Comparator ground. The Tribunal failed to take a comparator, either actual or hypothetical. "
As can be seen, many of these matters have already been dealt with in our consideration of the 26 grounds of appeal. It appears to us that the only matters not already addressed earlier in these reasons are the challenges to the findings at [60], [95] and [96] of the Tribunal's reasons in pars 106 and 107 quoted above.
As we understand pars 106 and 107 of the Grounds of Appeal, the appellant contends that the findings at [60], [95] and [96] were "inconsistent with the facts incontrovertibly established by the evidence" or "glaringly improbable".
The Tribunals findings at those paragraphs of its reasons were as follows: "60 Professor Dlugogorski said the applicant did not complain to him of depression prior to the exams, and that he was not aware that it was affecting the applicant's performance. He was of the view that the applicant lacked sufficient knowledge and ability to obtain the required grades in his coursework. He also considered that the applicant otherwise lacked the ability to complete the Masters degree requirements. … 95 The relevant requirement in this case was the condition that a higher research degree student achieve at least 75% in each of two undergraduate courses. In his final written submissions, produced after the hearing, the applicant identified the base pool as all research higher degree students in the Chemical Engineering department at the University of Newcastle who are admitted enrolled subject to a 75% requirement in undergraduate courses. On the evidence, there were six such students. In his oral submissions at hearing, he had contended that the base group should be divided into persons suffering from depressive illness and persons not suffering from it. In his final written submissions, he said that all but two of the six students had satisfied the requirement. He was one of the two that did not. Noting Professor Dlugogorski's evidence that the other student who had failed to achieve the 75% requirement did not suffer from depression so far as he knew, the applicant said a greater proportion of the group without depressive illness satisfied the condition than the proportion of the group with depressive illness. 96 That result, it seems to us, does [sic] is not substantiated by the evidence. Putting to one side the fact that a base group of six is too small to establish a substantially higher proportion, there is no evidence as to whether any of the four students who satisfied the condition were affected by depressive (or other) illness."
Having regard to these paragraphs and the evidence that is summarised and accepted in the Tribunal's reasons, we cannot conclude that these paragraphs contain any findings that could be characterised as "inconsistent with the facts incontrovertibly established by the evidence" or "glaringly improbable".
In relation to [96], the appellant submitted more specifically (see par 172 of the Appellant's Brief) that: "There is no evidence to support the Tribunal fining that six students evidence were before the tribunal who took [the two courses in Thermodynamics and Kinetics and Reaction Engineering] for comparison as a base pool. The university evidence establishes that only two students took [those courses]. Further, the appellant evidence does not show that six student should be used as base pool for comparison."
The relevant evidence and reasoning in this regard is contained in [64] of the Tribunal's reasons which was as follows: "Ms Kincaid, the University's Executive Officer of the Office of Graduate Studies, also gave evidence by of affidavit. She said that, in the first semester of 2012, the applicant was one of six students studying for higher research degrees in Chemical Engineering. All of them, she said, were required to obtain a minimum of 75% in a course or courses. She did not identify the courses concerned, but from the evidence of Dr Altarawneh considered above, we are satisfied that they were the same two courses in which the applicant was required to achieve at least 75%."
There was evidence, recorded to at [22] - [24] and [51], that supported the conclusion reached by the Tribunal at [64]. The conclusion at [64] was then relied upon by the Tribunal in considering the indirect discrimination case, for example at [95] and [96]. The conclusions reached by the Tribunal were open on the evidence and the Tribunal did not make any error of law in [96], as submitted by the appellant.
Moreover, we have set out above the principles which govern whether the Appeal Panel should grant leave to appeal. Nothing contained in pars 105 to 123 of the Grounds of Appeal establishes that there is any reason for us to grant leave to appeal. We refuse to do so.

[39]

Appellant's Brief and other documents submitted by the appellant

In the Appellant's Brief (in its amended form filed on 7 February 2017) there is, for example, the submission that by requiring a medical certificate as to his fitness for study prior to his being allowed to recommence studies in 2013 the University also engaged in unlawful direct discrimination on the ground of disability, see for example pars 111 and 141. There may be other additional challenges made to the decision at first instance and other allegations against the University in the Appellant's Brief, and in the various other documents submitted by the appellant, that go beyond what was before the Tribunal below and what is in the Grounds of Appeal.
We do not think it is appropriate to deal with any additional challenges or allegations, which go beyond what is in the Grounds of Appeal, or to decide this appeal on the basis of them. We take this view for a number of reasons. First, to do otherwise would subject the University to the very significant prejudice of not having had an appropriate opportunity to know what case is being made against it at first instance or on appeal, prepare its evidence or other material in response and to make submissions concerning that case. It is not likely that this prejudice could be appropriately remedied by any costs order or by an adjournment.
Secondly, any prejudice to the appellant can be seen to have been of his own making. He was given numerous opportunities to identify clearly both his case at first instance and his grounds of appeal. He did not file points of claim as directed. He did not file amended grounds of appeal as directed.
Thirdly, we observe that nothing that the appellant has put convinces us that by taking this approach the appellant will suffer such prejudice as would outweigh the prejudice to the University. He has not demonstrated that any of the additional challenges or allegations, in so far as there are any, are reasonably arguable. This is especially so because neither the Tribunal's findings nor the appellant's submissions suggest that it is likely that the appellant was treated in any way less favourably than students without his disability in the same or not materially different circumstances. Nor does it appear to us, on this material, likely that any of the officers of the University would be found to have treated the appellant less favourably because of his disability. Their action or inaction, such as it was disclosed, appeared to be explicable and understandable by reference to other, legitimate considerations. If this is correct, any direct discrimination claim, however formulated, would be unlikely to succeed. Similarly, in order to succeed in an indirect discrimination case, the appellant would have to establish that any requirement or condition was "not reasonable having regard to the circumstances of the case". The Tribunal below has already held that the appellant failed to establish that the requirement for students in his situation to obtain 75% or more in the two undergraduate courses was not reasonable in the circumstances. The Tribunal's conclusion in this regard was not affected by any error. As to what is alleged in pars 111 and 141 of the Appellant's Brief, if such a complaint was fully heard it is unlikely that it would be held that requiring the appellant to provide a medical opinion that he was fit to resume studies in 2013 was "not reasonable having regard to the circumstances of the case". In these circumstances, any indirect discrimination case based on such requirements would be unlikely to succeed, no matter how it was formulated.

At a glance

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Judgment (42 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (29)

Cited By (7)