ZZI v Holdsworth & University of Newcastle - [2023] NSWCATAP 78 - NSWCATAP 2022 case summary — Zoe

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ZZI v Holdsworth & University of Newcastle

[2023] NSWCATAP 78

NCAT Appeal Panel|2022-09-30

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2022-09-30

Catchwords

77 ALJR 1165 Ashby v Slipper [2014] FCA 973 Australian Broadcasting Tribunal v Bond ("the Bond Media case") [1990] HCA 33
(2008) 234 CLR 124 Edwards v Noble [1971] HCA 54
(1971) 125 CLR 296 Ferreira v Wollongong Spanish Club Pty Limited and Anor [2005] NSWADT 57 Fox v Percy [2003] HCA 22
(2003) 214 CLR 116 Hinch & Macquarie Broadcasting Holdings Pty Limited v Attorney General (Victoria) [1987] HCA 56

Source

Original judgment source is linked above.

Catchwords

77 ALJR 1165 Ashby v Slipper [2014] FCA 973 Australian Broadcasting Tribunal v Bond ("the Bond Media case") [1990] HCA 33(2008) 234 CLR 124 Edwards v Noble [1971] HCA 54(1971) 125 CLR 296 Ferreira v Wollongong Spanish Club Pty Limited and Anor [2005] NSWADT 57 Fox v Percy [2003] HCA 22(2003) 214 CLR 116 Hinch & Macquarie Broadcasting Holdings Pty Limited v Attorney General (Victoria) [1987] HCA 56(1987) 164 CLR 15 House v R [1936] HCA 40(1936) 55 CLR 499 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 Kostas v HIA Insurance services Pty Limited [2010] HCA 32(2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6(1996) 185 CLR 259(1980) 144 CLR 431 Yelda v Sydney Water Corporation

Judgment (26 paragraphs)

[1]

ICI Australia Operations Pty Limited [2001] NSWCA 274 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 70 ALJR 568 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Nicholls & Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20 O'Callaghan v Loder [1983] 3 NSWLR 89 Paniatowska v Hickinbotham [2009] FCA 860 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Re Maria Polites v Commissioner of Taxation [1988] FCA 789 Re Susan Hall, Diane Susan Oliver and Karyn Reed v A & A Sheiban, Dr Atallah Sheiban & Human Rights and Equal Opportunities Commission [1989] FCA 72; (1989) 20 FCR 217 Ros v Commissioner of Police [2020] NSWCATAP 70 Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 Shield v James & Lipman Pty Limited [2000] FMCA 2 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 211 Smith v Hehir & Financial Advisers Australia Pty Limited [2002] QSC 136 Sunaust Properties Pty Limited v The Owners Strata Plan Number 64807 [2022] (No 2) NSWCATAP 335 Torbey Investments Corporation Pty Limited v Ferrara [2017] NSWCA 9 Vilanenko v Commissioner of Police [2022] NSWCATAP 279 Vitality Works Australia Pty Limited v Yelda (No 2) [2021] NSWCA 14 White v Baron [1980] HCA 14; (1980) 144 CLR 431 Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203 ZND v ZNE [2020] NSWCATAP 34 ZNX v ZNY [2020] NSWCATAP 41 Texts Cited: None cited Category: Principal judgment Parties: ZZI (Applicant) John Holdsworth (First Respondent) University of Newcastle (Second Respondent) Representation: Applicant (Self Represented) Hicksons Lawyers (First and Second Respondent) File Number(s): 2022/00182600 and 2022/00196160 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: N/A Date of Decision: [2022] NSWCATAD 163 Before: A Britton, Deputy President File Number(s): 2019/00408761 and 2020/00095640

[3]

Reasons for decision of the Tribunal at first instance

After setting out matters of background which do not assume significance for present purposes, the Tribunal recorded [5] that in April 2018 ZZI lodged the first of two complaints with the Anti-Discrimination Board. ZZI alleged that she had been sexually harassed by Holdsworth and been discriminated on the ground of sex by Holdsworth and the University in contravention of the Anti-Discrimination Act 1977 (NSW) (the AD Act).
ZZI further alleged that, as a consequence of complaining to Holdsworth and the University, she had been victimised by them in contravention of the AD Act.
In January 2020 ZZI lodged a further complaint with the Anti-Discrimination Board alleging that she had been victimised by the University [6].
ZZI had, between August 2015 and November 2017, been supervised by Holdsworth as she pursued a PhD programme conducted by the University.
In May 2021, the First Respondent terminated ZZI's PhD candidacy [7].
The Tribunal summarised ZZI's complaints [9] in the following terms: "1 A/Prof Holdsworth: (a) sexually harassed her in contravention of the AD Act, s 22E; (b) discriminated against her on the ground of her sex in contravention of the AD Act, s 31(a); (c) victimised her on the ground that she had made allegations about him, contravention of the AD Act, s 50. 2 The University: (a) victimised her because of complaints she made about A/Prof Holdsworth and/or the University in contravention of the AD Act, s 50; (b) discriminated against her on the ground of sex in contravention of the AD Act, s 31(a); (c) by virtue of s 53(1) of the AD Act, is vicariously liable for A/Proof Holdsworth's conduct."
The Tribunal recorded the background to ZZI's complaints. The Tribunal referred [16] to ZZI's removal of the academic (Dr Sharafutainova) who, with Holdsworth, was supervising her PhD candidature in June 2017. The Tribunal recorded the terms of an email Holdsworth sent to Dr Sharafutainova of 16 June 2017 stating "Just to make it clear, [ZZI] is removing you as a co-supervisor. I am not in favour. I tried to stop it. It is her decision alone. Sorry."
The Tribunal recorded [17]-[19] the controversy with respect to the reason for Dr Sharafutainova's removal as co-supervisor and the assistance assertedly given to ZZI by her.
The Tribunal referred to the "layout of the school" [20]-[21] in which Holdsworth, and Dr Sharafutainova, had their offices during the period in which the former was supervising ZZI. The Tribunal recorded [22] that between early April 2017 and late June 2017 ZZI and Holdsworth were based at the University College Cork where they "undertook research and modelling relevant to [ZZI's] thesis". For much of that time they worked at adjacent desks in the open plan Tyndall National Research Laboratory which was also used by others.
The Tribunal referred to ZZI travelling to Munich on 23 June 2017 and thereafter to other overseas destinations before returning to Australia on 17 October 2017 [23]. That period was found to have included 10 weeks in Iran. ZZI and Holdsworth were in dispute as to whether the latter had been "aware of and had approved" ZZI spending 10 weeks in Iran on personal leave [24].
The Tribunal recorded [25]-[28] the parties' competing versions of the circumstances surrounding ZZI spending 10 weeks in Iran.
The Tribunal referred [35] to a meeting on 31 October 2017 at a Gloria Jean's Coffee Shop located on the University campus, which was attended by Dr Sharafutainova, Holdsworth and ZZI. The Tribunal recorded that "while there are conflicting accounts, it is agreed that the meeting started well but soon became heated". The Tribunal set out the competing versions of events at the meeting [37]-[41]. The Tribunal set out in detail [38]-[41] Dr Sharafutainova's version of what occurred at the meeting. The Tribunal set out at [42]-[43] Holdsworth's version of what happened at the meeting. ZZI's version of what happened at the meeting was recorded by the Tribunal at [44].
An email exchange, the text of which the Tribunal reiterated [45]-[46], had been discussed at the meeting. The Tribunal recorded [47] Dr Sharafutainova's version of the conversation with respect to the email exchange, and the contrary version advanced by ZZI.
The Tribunal recorded [49] Dr Sharafutainova's understanding of ZZI's concern with respect to the TEG email that "it was her impolite description of [ZZI] as "someone who we must not name"". The Tribunal recorded [50] Holdsworth's explanation of the significance of the TEG email.
After the Gloria Jeans meeting, on 1 November 2017, ZZI emailed Holdsworth and said [51]: "I would like to say thank you for making it possible to have a meeting today. Although my doctor realised I had a panic attack and prescribed me medicine due to tension and difficulty to breathe after the meeting, but I am happy that I can continue my project in peace from now on hopefully. I'm just wondering if you want me to arrange a Skype meeting with other supervisors or would you like to do it yourself? I would also like to appreciate your consideration on providing me with a fulltime PC and extra tracePRO key."
The Tribunal recorded [52] Holdsworth's evidence in the context of the Gloria Jeans meeting that: "Following that event, there was no chance, absolutely no chance of Dr S and [ZZI] working together. In one stroke, [ZZI] had removed from the research team or she shattered the research team. Removed the expertise on the tracePRO modelling. With those actions by [ZZI], I could no longer supervise her PhD."
On 1 November 2017 Holdsworth emailed Dr Zhou, the Assistant Director - Research and Training at the University and Deputy Head of MaPS, A/Prof Hogan stating: "I need help with this student. Her focus on her work is minimal. Really minimal. Her focus on university linkages for her benefit is high. Her manipulation and sense of entitlement are breathtaking. The last straw is not respecting the intellectual support that she has been given and in essence, destroying any possible cohesion in my research group while artfully manipulating the situation to her being the victim. I am over it. My health and wellbeing have suffered enough. I have no confidence in her abilities to achieve in her PhD studies without the support of me and my colleagues who she has comprehensively devalued and hurt. I have had no recent correspondence with her international co-supervisors. They have not contacted me about [ZZI] nor any aspect of possible university linkage development in the last 3 months."
The Tribunal considered the "progress reports" which the University required PhD candidates and their supervisors to submit twice a year - the 2015, 2016 and 2017 annual progress reports and the 2016 and 2017 mid-year progress reports [54]. The Tribunal cited from the 2015 annual progress report the comments of each of ZZI [56] and Holdsworth [57]. The comments of ZZI [58]-[59] and those of Holdsworth with respect to the 2016 mid-year report [60-[61] were recorded by the Tribunal. ZZI's comments with respect to the 2016 annual progress report [62] and those of Holdsworth [63] were recorded by the Tribunal.
With respect to the 2017 mid-year progress report, the Tribunal referred [65] to ZZI's report with respect to the progress of her studies. In that statement, having stated that she was "not satisfied with the contact you had with your co-supervisor" ZZI stated "I have not received any helpful assistance from my co-supervisor at UON so far. Therefore I would like to change my supervisory team while we are all still working together and will collaborate as much as possible." Holdsworth's report [66] rated ZZI's overall progress as "good".
The Tribunal recorded with respect to the 2017 annual report that ZZI stated [67]: "I have not been provided by the necessary equipment need to do the part of the PhD, though I believe based on my work results that I have done a perfect job for my PhD project. I had already informed my principal supervisor as well as other supervisors regarding all the issues. I had also informed UON about these issues and all problems in my previous progress report though in vain."
ZZI set out allegedly "unmet resources needs" which she considered affected the progress of her studies [67].
The Tribunal recorded [67(5)] ZZI as reporting with respect to "barriers" affecting her progress: "1 I changed my supervisory team though my principal supervisor was strongly against it and since then I have not had the local support. I removed Dr S from the supervisory team because I have not received any collaboration with that person as I reported in my previous progress report. 2 My previous co-supervisor have had a very aggressive … behaviour since she was removed from the team and trying to send some emails to the other people at the department to say bad words about me. She mentioned the reason that she is not happy that I removed her from the supervisory team. 3 My PhD was supposed to be a joint programme between Lund University in Sweden and UON. Since the plan has changed due to the delayed response by UON, I asked the UON to follow up the progress for my double degree to diminish the stress from me. My external co-supervisor has moved to Ireland and the other option would be my double degree with UCC. None of the progress has been followed up by may [sic] principal supervisor. My principal supervisor have had some personal issues with me and have not be very in supportive since I removed [Dr S] from the team, his reason for keeping [Dr S] in the supervisory team were not reasonable at all. 5 Based on the decision by ADR at UON I will find another supervisor. Therefore I will keep in contact with professors who are qualified for supervisor and do not leave the students alone on half of the way."
In his report Holdsworth was found to have identified [68] a number of instances in which work had "not been done" by ZZI or had been "done poorly". Holdsworth rated ZZI's progress as "poor", for reasons which he set out.
With respect to "any barriers that affect this candidate's progress", Holdsworth wrote: "As a result of failure to focus on work output expectations of assistance beyond any reasonable norms: a breathtaking sense of entitlement: and a deliberate act in which she shattered any possibility of collaboratively [sic] within my research group, disrespecting my research colleague and me, I am forced to remove my supervision of [ZZI]. In my opinion she is better off in Lund Sweden which is where she wants to be."
With respect to his "interactions with the candidate" Holdsworth wrote: "[ZZI] has decided to blame others for her inadequacies and has verbally attacked and disrespected by [sic] my research colleagues in front of me at a meeting [ZZI] wanted and had schemed to organise. She did virtually no work between end of July and mid-October. As a result of her actions I have withdrawn my supervision."
The Tribunal considered [69]-[73] Holdsworth's cross-examination with respect to the negative assessment in ZZI's final 2017 progress report when he had previously reported her progress as "good".
The Tribunal recorded [72] the evidence of Holdsworth with respect to the suggestion that, in the 2017 annual progress report he "attempted to portray [ZZI] negatively", to which he replied that it reflected the fact "that she spent 10 weeks in Iran with no output. It does reflect the fact that when she came back, she was disgruntled with access to equipment. Did not establish a booking list for access to the equipment. When challenged about that, advised in writing that [YDK] could use it, that [ZZI] was going to take another day off to pay medical bills. She had not addressed her health … she had refitted her palate at a dentist in Iran and did not come back. She had then manipulated the coffee meeting, attacked Dr Sharafutainova verbally at that meeting. Removed all possibility of a cohesive research group and effectively ended any possibility of me being able to supervise" her.
The Tribunal recorded [73] Holdsworth's rejection of the suggestion that he had been malicious in describing ZZI as having a "breathtaking sense of entitlement" or that in his opinion ZZI would be "better off in Lund, Sweden, which is where she wants to be".
The Tribunal considered when Holdsworth first became aware that ZZI had alleged to the University that he had sexually harassed her [74]. In an Affidavit of 27 October 2020, ZZI stated that "In or about November 2017" she had made "an informal complaint" to the University about the "sexually harassing behaviour of A/Prof Holdsworth".
The Tribunal recorded [75] that in cross-examination ZZI asserted that "university policy" prevented her from disclosing her complaint to another member of staff as an explanation for her failure to mention that complaint in her email of 20 November 2017 to Professor Martin and A/Prof Hogan.
The Tribunal recorded [77] Holdsworth's claim that he first learnt that ZZI had complained about him on 6 December 2017 when he was informed by the University. By email dated 11 December 2017 to the University's Assurance Services Unit ZZI formally complained about alleged conduct of Holdsworth and Dr Sharafutainova. The Tribunal recorded [79] the allegations made by ZZI in her formal complaint, they being: "(i) during their weekly meetings would frequently touch her on the shoulders, back or hands; (ii) would regularly touch and hold his hands on her back; (iii) at the 2016 Christmas party in the physics building, rubbed her back on a number of occasions; (iv) on multiple occasions, hugged her tightly and kissed her on the cheek without her permission; (v) on various occasions, would enter her office from behind in a "sneaky manner" and alert her to his presence by putting his hand on her shoulder; (vi) in late 2016 and early 2017, suggested, and was insistent upon, sharing accommodation with her for the duration of their research trip to Ireland; (vii) in Ireland, shared photos on Facebook of her without her permission, and shared videos and communicated with her over Facebook Messenger, which she did not consider appropriate."
The Tribunal recorded ZZI's complaint with respect to Holdsworth's alleged inadequate support and supervision as [80]: "(i) had promised that she would be awarded a dual degree by Lund University Sweden and the University; (ii) on several occasions in 2016 and once in 2017, had poked her hard in the arm with his finger causing her embarrassment and physical discomfort; (iii) placed her under duress to include Dr S as a supervisor for her PhD and later made threats towards her when she later sought to remove Dr S from the supervisory team; (iv) forced her to include the name of one of his students in an academic paper in circumstances where she had not used that student's work; (v) threatened her with the cancellation of her PhD candidacy when she sought to clarify her PhD plan and promises that were unfulfilled; (vi) unreasonably ended his supervisory relationship with her in circumstances where he had no cause to and largely because she had removed Dr S as supervisor; (vii) in meetings to discuss his decision to remove himself as supervisor, shouted at her and treated her unfairly and caused other staff members to treat her unfairly; and (viii) unfairly and dishonestly disparaged her to prospective supervisors, causing them not to take her on as a PhD student."
The complaint about Dr Sharafutainova made by ZZI alleged [81]: "(i) Dr Sharafutainova's communication with her was "disrespectful/abusive"; (ii) that during the Gloria Jeans meeting, Dr Sharafutainova behaved in an aggressive manner towards her; (iii) the reason she removed Dr Sharafutainova as her supervisor was because of her "bad attitude and no helpful collaboration with her thesis."
The University engaged external consultants, Pinnacle Integrity, to investigate the formal complaint. In the course of its investigation, Pinnacle interviewed ZZI, Holdsworth, Dr Sharafutainova, A/Prof Hogan, Professor Martin, Dr Xiajing Zhou and Dr Saadallah Ramadam [82].
The Tribunal recorded the Pinnacle findings [84] as: "(i) there was no evidence to support [ZZI's] allegation that Dr Sharafutainova has engaged in any kind of misconduct. Those allegations were unsupported and lacked evidence; (ii) all but one of the allegations about A/Prof Holdsworth were not proven. The proven allegation was that on several occasions A/Prof Holdsworth had poked [ZZI] in the arm; (iii) A/Prof Holdsworth's proven/admitted conduct did not amount to sexual harassment because it was not of a sexual nature."
The Tribunal further recorded [85] that Pinnacle was "critical of some aspects of A/Prof Holdsworth's conduct", stating that it could be "considered as overfamiliar and has the potential to cause discomfort (greeting and farewelling [ZZI] with a hug and a kiss) or demonstrated a significant lack of judgement (suggesting that he and [ZZI] share accommodation in Ireland)".
Under the heading "Assessment of credit: principles", the Tribunal recorded the well-known authorities with respect to assessment of credit of a witness in cases where a decision maker is "faced with a stark choice between irreconcilable accounts". It is unnecessary for present purposes to refer to that analysis [86]-[89], save to record that, in our view, the Tribunal identified, and accurately referred to, the principles established by those authorities.
The Tribunal then considered the statutory framework and principles governing a sexual harassment complaint. Section 23E(1) of the AD Act makes unlawful a member of staff of an educational institution sexually harassing a student at the institution. Section 22A of the AD Act, which the Tribunal set out [91], defines sexual harassment for the purpose of the Act as: "(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."
The Tribunal referred [92] to the decision in Vitality Works Australia Pty Limited v Yelda (No 2) [2021] NSWCA 14 in which the Court of Appeal held: "Whether conduct amounts to "other unwelcome conduct of a sexual nature" within the meaning of s 22A(b) of the AD Act is a question of fact having two parts: (a) whether the conduct is unwelcome, which must be determined by reference only to the complainant's state of mind; (b) whether the conduct is "conduct of a sexual nature" is a question of fact, ascertained objectively."
The Tribunal then identified as "key issues" [93]: "(i) whether the particularised conduct alleged by [ZZI] occurred, and (ii) whether any admitted or proven conduct amounts to sexual harassment within the meaning of the AD Act."
The Tribunal recorded [94] that ZZI bore the onus of establishing the facts alleged on the balance of probabilities. The Tribunal recorded [95] that there was "broad agreement about several factual issues", which included: "(i) on occasion, in greeting and farewell, A/Prof Holdsworth hugged and kissed [ZZI] on each cheek; (ii) on occasion, A/Prof Holdsworth touched [ZZI's] back and upper arms; (iii) on occasion, A/Prof Holdsworth poked [ZZI] on the upper arms; (iv) A/Prof Holdsworth suggested to [ZZI that they share accommodation during the study trip to Ireland; (v) before [ZZI's] return to Australia in October 2017, A/Prof Holdsworth had not raised with [ZZI] concerns about her progress with her PhD."
The Tribunal further recorded [96] that it was also agreed "that the Gloria Jeans meeting became heated and emotionally charged. Dr Sharafutainova was left shellshocked and in tears; [ZZI] consulted a doctor and was told that she had had a panic attack; A/Prof Holdsworth saw it as the "last straw" and the following day reported to Professor Martin that he was "over it", "my health and wellbeing have suffered enough"."
There remained, as the Tribunal observed [97], "several disputed issues which are central to the determination of the complaint". The Tribunal recorded six considerations of which it was mindful in that context. The Tribunal recorded [98] that neither Holdsworth nor ZZI was independent, each having "a motive to lie" for reasons which the Tribunal identified.
The Tribunal recorded [99] that the events the subject of the proceedings had occurred between 3 to 5 years prior to the hearing before the Tribunal. The Tribunal referred to the authorities, accepting that the "degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene".
The Tribunal recorded [100] that since the alleged events occurred ZZI and Holdsworth have each recounted their version of disputed events "to the University, to Pinnacle, to the Board, to their lawyers and, possibly, family and friends". The Tribunal recorded that it was "well recognised that the telling and retelling of events has the potential to distort memory".
The fourth particular consideration identified by the Tribunal [101] was that the proceedings have been a "stressful experience" for each of ZZI and Holdsworth, the "emotive quality of the evidence" having the potential to affect their capacity to accurately recollect disputed events.
The Tribunal recorded [102] that the "conflicting accounts given by A/Prof Holdsworth and [ZZI] about some of the disputed events may be attributable to their different perceptions of the same event", it being "entirely possible" that each quite differently perceived how "tightly" A/Prof Holdsworth had hugged ZZI. The Tribunal lastly recorded [103] that English was not ZZI's or Dr Sharafutainova's first language and that, although satisfied that each understood the questions put to them in the proceedings, some of the "more colourful statements" made by ZZI in the proceedings may have been attributable to ZZI's "language difficulties rather than as argued for the Respondents, a propensity to exaggerate or embellish".
The Tribunal considered the credibility of the witnesses who gave evidence in the proceedings.
The Tribunal recorded [104]-[107] the contentions of each party with respect to the credibility of the opposing party and of Dr Sharafutainova. Under the heading "Consideration" the competing contentions with respect to the veracity or reliability of contested evidence was evaluated. The Tribunal recorded [108] that "demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence".
For the reasons which it recorded [109] the Tribunal decided "not to give weight" to expert opinion evidence with respect to the likelihood of ZZI being "dishonest". The Tribunal accepted [110] that "some of the evidence given by [ZZI] in these proceedings appeared to be embellished and inherently implausible", an example of which was provided. The Tribunal further recorded [110] that "even taking into account language difficulties and [ZZI's] apparent anxiety when she gave evidence, her tendency to give longwinded and unresponsive answers to some questions was suggestive of a lack of candour".
The Tribunal recorded [112] with respect to the evidence of Holdsworth that there were "several inconsistencies between the evidence he gave in these proceedings and the account he purportedly gave Pinnacle", but concluded that such inconsistencies were "more likely to be the result of the passage of time and not a deliberate attempt to deceive". Relevant in that context was the "several concessions that were against his interests" which Holdsworth made in his interview with Pinnacle. The Tribunal found, being closer in time to the disputed events, that Holdsworth's account to Pinnacle was "probably more reliable than that given in these proceedings".
The Tribunal accepted [113] that there were "aspects of A/Prof Holdsworth's conduct that demonstrated a lack of insight", an example being the suggestion that he and ZZI share accommodation in Ireland which "indicated a lack of insight about how his conduct might be perceived by [ZZI] and others".
The Tribunal also recorded [113] that the "resolution of the competing evidence given by A/Prof Holdsworth and [ZZI] turns largely on whether the disputed conduct occurred and not their respective views or the proper characterisation of that conduct". The Tribunal recorded [114] that Dr Sharafutainova was not an independent witness, in view of her "close working relationship and acknowledged friendship with A/Prof Holdsworth" but that her evidence was nevertheless "credible and internally consistent", and was accepted by the Tribunal as that of a "witness of truth".
The evidence of Dr Shirvanimoghaddam was considered by the Tribunal [115]-[116]. The Tribunal recorded [119] that Dr Shirvanimoghaddam's evidence was "significant in that it is the only complaint evidence that [ZZI] considered A/Prof Holdsworth's conduct to be unwelcome at the time, and when she told him so" which was at a Christmas party in about December 2016. The Tribunal found [120] "implausible" Dr Shirvanimoghaddam's claim that he did not speak to ZZI before preparing his statement, for reasons which the Tribunal recorded. The Tribunal ultimately recorded [122] that, although Dr Shirvanimoghaddam's account may have been accurate, for the reasons it recorded, there was a "need to exercise care in accepting Dr Shirvanimoghaddam's uncorroborated evidence".
The Tribunal considered when Holdsworth first learnt that ZZI reported that he had sexually assaulted her which it considered [123] to be an issue of "critical significance" in the proceedings. The Tribunal found [124] that it was "not satisfied on the balance of probabilities that [ZZI] told A/Prof Holdsworth that his conduct was inappropriate" and that he first learned that ZZI had alleged that he had sexually harassed when he was informed by the University on 6 December 2017. The Tribunal referred [125] to Ms ZZI's "materially conflicting accounts about when she first told A/Prof Holdsworth that she had concerns about his conduct". The Tribunal identified [128]-[130] inconsistencies in the documentation in support of that finding.
The Tribunal referred [131]-[132] to cross-examination of ZZI and found [133] that "on any reading of the evidence, the inference could not be drawn that in the Father's Day email [ZZI] was asking A/Prof Holdsworth to stop acting inappropriately or was referring to a complaint she made to A/Prof Holdsworth on or about 26 August 2015".
The Tribunal referred [134] to "materially conflicting accounts about how often she told A/Prof Holdsworth that his conduct was inappropriate which [ZZI] had given". The Tribunal referred [134(3)] to ZZI's first complaint to the Anti-Discrimination Board, in which ZZI alleged that she had notified Holdsworth of "his inappropriate conduct and my feelings on 18 November 2016".
The Tribunal recorded [135] Ms ZZI's allegations "for the first time" that Holdsworth threatened to withdraw his support for her continued receipt of a scholarship when she threatened to report him for inappropriate conduct.
The Tribunal also referred [136] to ZZI's claim "again for the first time" that while in Ireland she said to Holdsworth that it "hurts a lot and don't do that, I don't like it, please stop" when he was poking her.
The Tribunal also referred [137] to the absence of mention in counselling service records of the University of alleged inappropriate conduct on four occasions in 2015 (two), 2016 (one) and 23 November 2017. The Tribunal recorded [138] ZZI's explanation for the absence of mention of her complaints in the University records, asserting that she had "asked the counsellors not to record those disclosures because she was fearful that university staff might look at her counselling records".
For reasons which it recorded [140] the Tribunal was "unable to accept" ZZI's claim that she had disclosed to counsellors that she had been inappropriately touched by Holdsworth and "instructed them not to record those disclosures".
The Tribunal referred [141] to the failure of ZZI's husband to mention "being told by [ZZI] that she had asked A/Prof Holdsworth to stop touching her" and reiterated its rejection of the claim made by him in oral evidence that ZZI "said to him that she had complained to A/Prof Holdsworth and he retaliated by threatening to withdraw local support".
The Tribunal then considered the eleven discrete allegations against Holdsworth which were asserted to constitute sexual harassment within s 22A of the AD Act.
The Tribunal recorded [143] the first allegation as being: "tightly hugging and kissing [ZZI] on the cheek, in his office, while alone with her: (i) on or about 26 August 2015 (ii) in or around January 2016 and (iii) on other occasions."
The Tribunal recorded Holdsworth's version of events [144]-[149].
For the reasons which it recorded [150]-[153], the Tribunal found the conduct particularised in allegation 1 to be "established in part", recording [153]: "(i) on two occasions while alone in his office with [ZZI], A/Prof Holdsworth hugged [ZZI]: on her arrival in Australia on 26 August 2015 and on her return from Iran on 27 January 2016; (ii) on three occasions in late 2016, on greeting and farewelling her, A/Prof Holdsworth hugged and kissed [ZZI] on each cheek in the company of one or both of [ZZI's] parents; (iii) as admitted by A/Prof Holdsworth to a Pinnacle investigator, he hugged [ZZI] during a surprise birthday party arranged for him in Ireland; and in addition, as reported to Pinnacle and conceded as possible by A/Prof Holdsworth in these proceedings, he hugged and kissed [ZZI] on the cheek on several other occasions, such as when she departed and returned from Australia."
The Tribunal then considered [154]-[160] whether the proven conduct was "unwelcome" and essentially found that ZZI "probably" found Holdsworth's conduct "to be unwelcome" [160].
The Tribunal then asked, "Would a reasonable person having regard to all of the circumstances have anticipated that [ZZI] would be offended, humiliated or intimidated". The Tribunal referred [161] to dictionary definitions of "offend", "humiliate", "intimidate".
By reference to the findings of fact which it had made, the Tribunal held [165] with respect to the "first embrace" that a "reasonable person probably would not have anticipated that [ZZI] would be humiliated or intimidated by A/Prof Holdsworth's embrace". However, the Tribunal found [166] that the reasonable person "probably would have anticipated that [ZZI] would be offended, in the sense of experiencing minor displeasure". For "largely the same reasons" the Tribunal found [167] that the reasonable person would have anticipated that [ZZI] would be offended by the second embrace". For the reasons which it recorded [168] the Tribunal was not satisfied that the reasonable person would have anticipated that ZZI would be offended by Holdsworth's actions in "hugging and kissing [ZZI] in the company of her parents".
Finally, the Tribunal recorded [169] that "In the absence of evidence about the circumstances in which any subsequent embraces occurred, it could not be satisfied that the reasonable person would have anticipated that [ZZI] would be offended by those embraces."
The Tribunal then considered whether Holdsworth's conduct was of a sexual nature [170]-175]. The Tribunal recorded [176] that Holdsworth's conduct "in embracing [ZZI] was undoubtedly inappropriate. It was presumptuous and arguably patronising" but, was "not accompanied by any words or conduct, of a sexual nature" and, "objectively assessed it could not be characterised as being of a sexual nature".
With respect to allegations 2 and 3 "the poking and touching allegations, ZZI alleged: "2 On approximately 60 occasions between October 2015 and July 2017, during weekly meetings between ZZI and Associate Professor Holdsworth, Associate Professor Holdsworth: (i) repeatedly poked ZZI's arm with his forefinger without her consent; and (ii) repeatedly touch ZZI's back, shoulders, hand, and buttocks without her consent; (iii) on approximately 20 occasions between October 2015 and July 2017, while ZZI was performing research in a laboratory on the University's premises, Associate Professor Holdsworth touched ZZI's back without her consent."
The Tribunal recorded the evidence with respect to the weekly meetings [177]-[188]. The Tribunal found [197] that "on several occasions A/Prof Holdsworth touched [ZZI] on her upper back while she was working on a computer in the laboratory to indicate to her to move her chair so he could pass by". The Tribunal recorded its findings with respect to the issue [189]-[197] for the reasons there recorded, found [198] that "allegations 2 and 3 are proven in part".
The Tribunal found [199] that ZZI considered Holdsworth's proven conduct unwelcome. The Tribunal further found [200] that the "reasonable person would probably have anticipated that ZZI would be offended by the proven conduct in the sense of it causing minor displeasure". The Tribunal then considered whether the conduct found established as "of a sexual nature".
For the reasons which it recorded [201]-[204] the Tribunal recorded [204] that "the fact that the conduct was unwelcome and the reasonable person would have anticipated it would have caused [ZZI] minor displeasure are factors relevant to, but not determinative of, whether the conduct was implicitly sexual. The prodding was not accompanied by any verbal or physical conduct which [sic] of a sexual nature. Objectively assessed, I am not satisfied that the prodding could be characterised as being of a sexual nature".
The Tribunal then considered the allegation 2(i) of the touching allegations, finding [205] that the ZZI "probably considered A/Prof Holdsworth's proven conduct unwelcome". The Tribunal further found [206] that "the reasonable person would probably have anticipated that [ZZI] would be offended by the proven conduct in the sense of it causing her minor displeasure". The Tribunal considered whether the proven conduct was "of a sexual nature" [207]-[210] finding [210] that "While Dr Holdsworth [sic] touching was presumptuously familiar with [ZZI], and unwelcome to her, objectively assessed, in my view, there was nothing else from which it could be inferred to be conduct of [sic] sexual nature".
The Tribunal then considered allegation 3 the "placing hand on back allegation" and found [211] that ZZI "probably considered A/Prof Holdsworth's proven conduct unwelcome". The Tribunal further found [212] that the reasonable person would probably have anticipated that ZZI would be offended by the proven conduct in the sense of it causing her minor displeasure.
The Tribunal recorded [213] that, for the reasons given with respect to allegation 2(i) and "having regard to the context in which the proven conduct occurred - after the return to Iran of ZZI's mother and in the course of instructing ZZI on the optical scanner - objectively assessed I am not satisfied that the proven conduct was of a sexual nature."
Allegation 4 "silently entering ZZI's office and touching her back". The Tribunal considered the evidence [214]-[217] in relation to ZZI's allegations. For the reasons which it recorded [218]-[219] the Tribunal found [220] that the allegation was proven in part.
The Tribunal found [221] that ZZI "probably considered A/Prof Holdsworth's proven conduct unwelcome" The Tribunal further found [222] that the reasonable person "would probably have anticipated that [ZZI] would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure".
With respect to whether the conduct was "of a sexual nature", the Tribunal recorded [223] that there was no evidence to suggest that "A/Prof Holdsworth placed his hand on [ZZI's] shoulder for any length or time or that it was accompanied by any words or conduct of a sexual nature". The Tribunal was thus not satisfied [224] that the proven conduct could be characterised as conduct of a sexual nature.
Allegation 5 (insistence on weekly meetings), which was "In about February 2016, [ZZI] refused to attend in person weekly meetings with Associate Professor Holdsworth with a view to avoiding unwelcome physical conduct by Associate Professor Holdsworth. Associate Professor Holdsworth insisted that in person weekly meetings continue as a precondition to provide [ZZI] with positive feedback on her progress in her PhD candidacy".
The Tribunal referred to the evidence of ZZI and Holdsworth [225]-[227]. The Tribunal found [228] that Holdsworth and ZZI "met weekly sometimes virtually throughout the period of supervision", that it was "not satisfied that in February 2016, or at any other time during that period, [ZZI] said to A/Prof Holdsworth that she was uncomfortable with his conduct". The Tribunal was also not satisfied that "in February 2016, or any other time, [ZZI] said to A/Prof Holdsworth that she did not want to attend the weekly meetings because of his conduct". Allegation 5 was thus not proven [229].
Allegation 6 the "Christmas party allegation" asserted "repeatedly touching ZZI's back in the presence of at least one other student of the university in or about late December 2016 at a Christmas party".
The Tribunal referred to the evidence with respect to the issue [231]-[237]. For the reasons which it gave [238]-[241] the Tribunal found [241] that "A/Prof Holdsworth placed his hand on [ZZI's] back on a few occasions during the subject event" but did not find that he "brushed her hands towards or onto her buttocks". Allegation 6 was thus "proven in part" [242].
The Tribunal found [243] that ZZI "probably considered A/Prof Holdsworth's proven conduct unwelcome". The Tribunal further found [244] that the reasonable person would probably have anticipated that ZZI would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure.
The Tribunal considered whether the proven conduct was "of a sexual nature". The Tribunal recorded in that regard [245] that: "Undoubtedly the act of touching another person on the back (or indeed any body part) is capable of being characterised as conduct of a sexual nature, depending on context. The available evidence does not support a finding that during the event A/Prof Holdsworth touched [ZZI] on the back on more than a few occasions, that the touching was other than momentary, or that his hand wandered. The touching was not accompanied by any words or other conduct of a sexual nature."
The Tribunal was not satisfied that [246] "objectively assessed, the proven conduct is conduct of a sexual nature".
Allegation 7 "sharing accommodation" asserted "Suggesting and insisting upon sharing accommodation with ZZI for the duration of their stay, over ZZI's repeated objections, prior to a 3 month research trip to Ireland". The Tribunal recorded [247] agreement that: "(i) A/Prof Holdsworth suggested to [ZZI] that they share accommodation (but not bedrooms) during their study trip to Ireland; (ii) A/Prof Holdsworth asked [ZZI] to research accommodation options provided by University College Cork for visiting academics; (iii) after consulting with his wife A/Prof concluded that it was inappropriate that he share accommodation with [ZZI]; (iv) A/Prof Holdsworth and [ZZI] stayed in separate accommodation while in Ireland."
The Tribunal referred [248]-[254] to the evidence before it with respect to this issue. The Tribunal found [245] that the evidence did not support a finding that Holdsworth "insisted" that ZZI share accommodation during their trip to Ireland. The Tribunal found that the evidence did not support a finding that ZZI "repeatedly objected to the shared accommodation proposal". The Tribunal nevertheless found [256] that "A/Prof Holdsworth proposed that they share accommodation and, initially, this was his strong preference" and [257] to that extent allegation 7 was proven in part.
The Tribunal found [258] that ZZI probably "felt uncomfortable and embarrassed by A/Prof Holdsworth's proposal that they share accommodation" and that ZZI considered Holdsworth's proven conduct unwelcome. The Tribunal further found [259] that the reasonable person would probably have anticipated that ZZI would be offended by A/Prof Holdsworth's proven conduct in the sense of causing her minor displeasure.
The Tribunal then considered whether the conduct was "of a sexual nature". The Tribunal found in that regard [260] that "While the evidence does not support a finding that A/Prof Holdsworth was seeking to share accommodation for an ulterior reason, nonetheless, it demonstrates lack of insight. That is clear from the fact that it was not until his wife said that the arrangement could be seen to be improper that A/Prof Holdsworth decided to abandon the proposal." The Tribunal was, however, [261] not persuaded that A/Prof Holdsworth's actions in proposing to ZZI that they share accommodation while they were in Ireland could be said to be conduct of a sexual nature.
Allegation 8, the "My wife would kill me" claim, asserted that: "In June 2017, in response to a fellow student enquiring whether [ZZI] and Associate Professor Holdsworth had shared accommodation whilst in Ireland, Associate Professor Holdsworth laughing and saying words to the effect of "My wife would have killed me if I had shared a house with [ZZI]"."
Those allegations were found to have been essentially admitted by Holdsworth [262]. Allegation 8 was accordingly found proven [263]. The Tribunal found [264] that ZZI probably considered Holdsworth's proven conduct unwelcome. The Tribunal further found [265] that the reasonable person would probably have anticipated that ZZI would be offended by A/Prof Holdsworth's proven conduct in the sense that it would cause her embarrassment and minor displeasure.
The Tribunal then considered whether the conduct was of a sexual nature. The Tribunal found [269] that it was. The finding with respect to this complaint gave rise to the cross appeal.
The Tribunal found [266] that the "implication" of Holdsworth's comment "My wife would have killed me" was clear, being "that had he shared accommodation with [ZZI], A/Prof Holdsworth's wife would have suspected that he and [ZZI] were sexually intimate". The Tribunal thus found the comment to be of a sexual nature. The fact that Holdsworth "immediately qualified" that comment by saying to ZZI that it would have been "inappropriate"" did not alter the Tribunal's view that the comment was of a sexual nature.
The Tribunal further recorded [267] that to fall within s 22A(b) of the AD Act the perpetrator must "engage in other unwelcome conduct of a sexual nature in relation to the other person". The Tribunal recorded that Holdsworth did not "initiate the conversation about sharing accommodation with [ZZI]" and that it was a "one-off comment in response to a question asked" which had not been "made in the context of a ribald exchange". The Tribunal held that the evidence did not support a finding that the comment was made "with the intention of being heard by, or to embarrass [ZZI]". The Tribunal nevertheless found [268] that it was conduct in which Holdsworth engaged "in relation to" [ZZI] and thus amounted to sexual harassment within s 22A(b) of the AD Act, which is made unlawful by s 23E(1) of the AD Act.
Allegation 9, the "Facebook Messenger allegation", asserted that "In about early-to-mid-2017, whilst in Ireland, Holdsworth sent repeated requests for a video call via Facebook Messenger while each of Associate Professor Holdsworth and [ZZI] were alone in their respective rooms, despite [ZZI] ignoring his requests."
The Tribunal referred to the evidence with respect to the issue [270]-[273] and found at [274] that the evidence did not "support a finding that [ZZI] and A/Prof Holdsworth were alone in their respective rooms when A/Prof Holdsworth made either the phone or video call. Nor does the evidence support a finding that [ZZI] told A/Prof Holdsworth that she did not feel comfortable taking a video call from him." Allegation 9 was thus found not proven [275].
Allegation 10, the "Yes, John" allegation", asserted that in about May 2017, when [ZZI] disagreed with his instructions in a laboratory in Ireland on the university's premises, Holdsworth "raised his finger" at ZZI and said words to the effect of "Say "Yes, John"". The Tribunal recorded [276] that the claim was "unsupported and denied by A/Prof Holdsworth" and was "not proven".
The Tribunal considered allegation 11, the "academic father allegation", which asserted that Holdsworth said to ZZI words to the effect of "don't worry, I'm your academic father" when ZZI objected to unwelcome physical contact by Holdsworth. The Tribunal found the allegation not proven [280], essentially on the basis that the allegation involved no unwelcome or other physical conduct.
For the reasons to which we have referred the Tribunal found [281] that allegation 8 was proved, and involved conduct which was unlawful pursuant to s 23E(1) of the AD Act. The balance of the Appellant's sexual harassment complaint was found to not be substantiated.
The Tribunal then considered the "complaint of sex discrimination". The Tribunal identified the complaint [282] as "A/Prof Holdsworth and the university discriminated against her on the ground of sex". The Tribunal recorded [283] the terms of s 31A(2) of the AD Act, which provides: "It is unlawful for an education authority to discriminate against a student on the ground of sex - (a) by denying the student access, or limiting the student's access, to any benefit provided by the education authority, or (b) expelling the student or subjecting the student to any other detriment."
The Tribunal referred [284] to the issue which it raised at the hearing of the proceedings as to whether Holdsworth was an "education authority" for the purpose of the AD Act. The Tribunal noted that each party made written submissions with respect to that issue.
Section 4 of the AD Act defines "educational authority" to mean "a person or body administering a school, college, university or other institution at which education or training is provided."
The Tribunal recorded [286] ZZI's contention that "An individual or natural person may be an educational authority" and observed "potentially an employed academic could be an educational authority". The Tribunal referred [287] to the decision in Haines v Leves [1987] 8 NSWLR 442, at [454]-[455], upon which ZZI relied in support of her contention that "the term educational authority should be read to mean the individual or body who has decision-making power in respect of the activities described in s 31A(2) of the AD Act". ZZI submitted that Holdsworth had "decision-making power" in respect of those activities. It was further asserted to be within Holdsworth's power to subject the Appellant to a detriment, by, for example, "providing an unfavourable progress report or subjecting her to sexual harassment".
The Tribunal also recorded [288] ZZI's contention that the term "administering" should be given its ordinary meaning with respect to activities described in s 31A of the AD Act. The Tribunal recorded the Appellant's contention [289] that her construction of the provision would be consistent with a "purposive approach, which ought to be applied in respect of the AD Act, as a piece of beneficial legislation".
Holdsworth and the University's contentions with respect to the issue [290] were recorded as asserting that an "educational authority" was limited to a "body or person with the powers or authority to administer the institution".
For the reasons which it recorded, [291]-[295], the Tribunal found [296] that A/Prof Holdsworth was not an "educational authority" for the purpose of the AD Act.
The Tribunal then considered [297]-[299] the complaint of sexual discrimination against the University. The Tribunal recorded [299] that, given its finding "that one allegation of sexual harassment is proven, conduct which occurred on a single occasion, it could be said that the university subjected [the Appellant] to persistent harassment, or hostile environment". Given that the Tribunal found the complaint was not substantiated [300], it is apparent that the previous paragraph of the Tribunal's reasons should have read "could not be said". To read it otherwise would be inconsistent with the ultimate finding of the Tribunal, and the logic of the reasons underpinning it.
The Tribunal then considered ZZI's complaint of victimisation, which it identified [301] as being that Holdsworth and the University victimised ZZI in contravention of s 50 of the AD Act, complaints which were "independent of each other". The Tribunal recorded [302] the terms of s 50 of the AD Act which provide: "50 Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) allege that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith."
The Tribunal recorded [303] by reference to the decision in Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53] that, to succeed with her claim, ZZI must establish on the balance of probabilities that: "(i) A/Prof Holdsworth/the University, its agents or employee, caused her to undergo or experience something; (ii) she had suffered some consequential detriment; and (iii) she was subject to that detriment "on the ground" that she did, one of the things listed in s 50(1) of the AD Act or because A/Prof Holdsworth or the University suspected that she has done, or intended to do one of those things [authorities omitted]."
The Tribunal observed [304] that "detriment" in s 50 was not defined by the AD Act and adopted the meaning "consistently applied by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal", that is, "something that objectively assessed amounts to loss, damage or injury that is real and not trivial". The Tribunal cited a number of decisions in support of that approach.
The Tribunal referred [305] to the decision in Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 with respect to the meaning of the expression "on the ground" in s 50 of the AD Act. The Tribunal considered that the "question posed" was whether at least one of the "real", "genuine" or "true" reasons the "discriminator" subjected [the person victimised] to a detriment was that the person victimised had done or intended to do, or the discriminator suspected that person victimised had done or intended to do, at least one of the things listed in s 50(1)(a) to (d) of the AD Act.
The Tribunal considered ZZI's claim of victimisation by Holdsworth [306]-[323]. The complaint comprised 10 alleged acts by Holdsworth which were asserted to amount to "detriment" within the meaning of s 50 of the AD Act between August 2015 and November 2017.
The Tribunal recorded its "findings" with respect to the ZZI's claims [324]-[345]. The Tribunal considered the "dates the impugned decisions were made" [324]-328]. For the reasons there recorded, the Tribunal was not persuaded [328] that ZZI said to Professor Martin on 13 November 2017 that she had been "sexually harassed" by A/Prof Holdsworth or that she made that allegation at the meeting on 20 November 2017 attended by Professor Martin, A/Prof Hogan and A/Prof Holdsworth". The Tribunal found [329] that "At least by 17 November 2017, A/Prof Holdsworth had informed the University of his decision to cease to act as [ZZI's] supervisor".
The Tribunal then referred to the "Gloria Jeans meeting", the respective accounts of which it noted [330] had been set out in detail earlier in its reasons. For the reasons which the Tribunal recorded [330]-[333], the Tribunal found [334] that it was "more probable than not that the main reason A/Prof Holdsworth decided to cease acting as [ZZI's] supervisor was because of the attack she made on Dr Sharafutainova at the Gloria Jeans meeting".
The Tribunal then referred [335] to ZZI's "downgraded progress rating". The "failure to progress the thesis in Iran" was considered by the Tribunal [336]-[338]. The Tribunal recorded with respect to that issue [339] that it was "possible that there was a misunderstanding on [ZZI's] part about A/Prof Holdsworth's expectations of her while she was in Iran. It is possible that he failed to spell out exactly what he expected from her in terms of work on her thesis. Given that he had signed off on the travel diaries, [ZZI] may not have believed that she was required or expected to produce work while in Iran, especially if she had taken that trip for the primary purpose of undergoing surgery".
The Tribunal considered "the final assessment" of ZZI's performance by Holdsworth [340]-[344]. The Tribunal found with respect to that issue [345] that there were "two competing hypotheses which may explain A/Prof Holdsworth's actions in giving [ZZI] a negative assessment in the final report: that [ZZI] had made an allegation of sexual harassment which prompted the assessment or that her treatment of Dr Sharafutainova, coupled with A/Prof Holdsworth's alleged sense of annoyance with [ZZI's] lack of progress on her thesis while in Iran, had done so". The Tribunal found the latter to be "the more probable explanation", for the reasons which it then recorded.
In "summary" the Tribunal recorded [346] that it was "not persuaded that one of the real, genuine or true reasons A/Prof Holdsworth decided to cease to act as [ZZI's] supervisor, or to give [ZZI] a negative assessment, was that [ZZI] had alleged that she had been sexually harassed, or because he suspected that she had or intended to make that allegation".
The Tribunal then considered [347] the ZZI's allegation that "on at least two occasions between July 2018 and February 2019, A/Prof Holdsworth approached [ZZI] on or near the University campus, in a manner which she found to be intimidating, including by physically pursuing her as she ran away". The Tribunal identified the parties' differing versions of events [349]-[350]. The Tribunal then referred [351]-[353] to the competing claims with respect to "the cycling incident". The "café incident" was considered by the Tribunal [354-355].
The Tribunal found [356] that it was "possible" that Holdsworth looked at the Appellant "with an angry face". The Tribunal found that "equally, given that the University had directed that they not have any contact with the other, it is possible that he merely sought to remove himself from [ZZI's] presence as quickly as possible". The Tribunal further found [357] that, for the reasons which it there recorded, it could not be "satisfied that A/Prof Holdsworth looked at ZZI with an angry face".
In its conclusion with respect to the issue, the Tribunal recorded [358] that there were "conflicting accounts of the cycling and café incidents", neither of which was corroborated. The Tribunal thus held that "In circumstances where [ZZI] bears the evidentiary onus I could not be satisfied that [ZZI's] account of either incident is made out."
The Tribunal considered [360]-[362] ZZI's allegation that "since November 2017, A/Prof Holdsworth has failed to provide [ZZI] with a letter of technical expertise, despite her requests that he do so". In the course of its reasons, the Tribunal referred [362] to the absence of cross-examination of Holdsworth "about his claim that he provided the letter of technical expertise requested by [ZZI]" and to the absence of "any substantial argument put which might assist me to determine whether as [ZZI] apparently believes the letter dated 22 January 2018 does not constitute a letter of technical expertise". The Tribunal accordingly found [363] that the "premise on which this allegation is based is not proven".
ZZI made two "equipment allegations" which the Tribunal considered [363]. The first of those was that "from November 2017 to July 2018, A/Prof Holdsworth refused to provide [ZZI] with access to the Optics lab in the Physics building, the TracePro software and the Alienware computer". The second claim was that "from November 2017 to present, A/Prof Holdsworth refused to provide [ZZI] with access to the volumetric/volume scanner".
The Tribunal recorded the competing claims with respect to the issue and noted [368] that ZZI was provided with the equipment to which it had earlier referred [367] in July 2018. The Tribunal recorded the evidence before it with respect to the "volume scanner" [369]-[370]. The Tribunal considered in detail [371]-[373] the cross-examination of Holdsworth with respect to the issue. The Tribunal recorded its findings with respect to these issues [374]-[378]. The Tribunal found that it was "possible" that one of the reasons that Holdsworth refused the request for the Appellant to have access to the Alienware PC and the TracePro software was "because of [Appellant's] complaint of sexual harassment". The Tribunal recorded that it was "also possible that the reason for the refusal was that A/Prof Holdsworth had concerns about being subjected to a plagiarism complaint". A "third possibility" [374] was that "a combination of concerns about unfounded plagiarism complaints and ill-feeling and distrust of [ZZI] resulting from of [sic] complaint of sexual harassment were factors in A/Prof Holdsworth's initial refusal". The Tribunal recorded that the "ultimate decision about the volume scanner appears to have been made by Professor Johnston" and that, whilst the evidence was "unclear" about who raised the issue of ZZI's access to that equipment it was "improbable" that Holdsworth was "not consulted at some point".
The Tribunal recorded [376]-[377] the evidence of each party and found [378] that "this is a case in which reasonable inferences can be drawn from the evidence that A/Prof Holdsworth's conduct constituted victimisation of [ZZI] and that it constituted self-defence against her". The Tribunal found it "not possible to determine on the evidence" which of those inference was "the more probable", the choice between them being "a matter of conjecture". The Tribunal recorded [379] that ZZI bore the onus of proof, which it was not satisfied that she had discharged. For the reasons which it thus recorded, the Tribunal found the complaint of victimisation made against Holdsworth had not been substantiated [380].
The Tribunal then turned to consider the victimisation claim against the University. The Tribunal recorded [381] the first allegation made by ZZI which was that "From about March 2018 until present, the University failed to provide [ZZI] with the investigation report prepared by Pinnacle Integrity, in relation to [ZZI's] first formal complaint". After considering the evidence with respect to the issue [382]-[383] the Tribunal found [384] that the: "available evidence does not reveal why the University refused [ZZI's] request. It was not suggested to any of the University's witnesses that the decision not to provide [ZZI] with a copy of the Pinnacle report was that she had made complaints about A/Prof Holdsworth and/or the University. The available evidence does not reveal why the University refused [Appellant's] request. [ZZI] has not addressed the basis upon which an inference could be drawn that one of the real, genuine or true reasons the University refused to accede to [ZZI's] request was that she had made complaints about A/Prof Holdsworth and/or the University."
The Tribunal considered conjointly the allegations by ZZI that the University "failed to carry out an investigation of the allegations in [ZZI's] first formal complaint in a balanced and impartial manner and in accordance with the rules of natural justice" and that "in about May 2018, the University failed to carry out any, or any proper, investigation of [ZZI's] internal "appeal"".
The Tribunal considered the evidence with respect to those complaints [386]-[390]. The Tribunal found [391] that the "criticisms" made by ZZI about the Pinnacle investigation were "in effect, an expression of disagreement with the facts found by Pinnacle and forensic decisions made by Pinnacle about the conduct of that investigation." The "premise" on which the second of the two allegations under consideration had thus not been established. The Tribunal found [392] that the "basis" of [ZZI's] claim that the University failed to "carry out any, or any proper, investigation" of her internal complaint was "unclear", and that the evidence "suggests otherwise". The Tribunal thus found [393] that the premises on which each of the two allegations under consideration not having been established, the allegations were not substantiated [394].
The Tribunal then considered [395]-[398] ZZI's allegation [394] that "In about November 2017 to about March 2018, Jeffrey Hogan failed to exercise reasonable efforts to find a suitable alternative supervisor for [ZZI]". The Tribunal found [398] that "even if" it was suggested that the "steps taken by A/Prof Hogan to assist [ZZI] to find a suitable supervisor were inadequate, the evidence does not support a finding that, prior to Professor Stanwell's appointment, A/Prof Hogan was aware of [ZZI's] complaint of sexual harassment". In those circumstances the Tribunal held [399] that the "allegation must fail".
The Tribunal then considered [400] the evidence with respect to ZZI's claim that "On or about 16 November 2017, Jeffrey Hogan informed [ZZI] that her PhD candidacy would be terminated unless she was able to secure a new supervisor and new project within about 3 weeks, which was an unreasonable requirement." The Tribunal found in that regard [401] that "Given that it was the end of the academic year, requiring [ZZI] to find a replacement supervisor within a month appears to be unreasonable. Nonetheless, for the reasons discussed above the evidence does not support a finding that when A/Prof Hogan informed [ZZI] of that requirement that he was aware of [ZZI's] allegation of sexual harassment". The allegations were thus not proved.
The Tribunal considered [402]-[403] ZZI's allegation that "on or about 24 November 2017, Jeffrey Hogan and/or other responsible employees of the University refused to approve and/or support the extension of [ZZI's] scholarship on the basis of exceptional circumstances". The Tribunal held [404] that given its finding that on 24 November 2017 A/Prof Hogan was unaware of ZZI's complaint of sexual harassment, the claim "must fail".
Three complaints made by ZZI were then conjointly considered by the Tribunal. Those complaints were that: "(f) from about December 2017, the University restricted [Appellant's] access to her office, research equipment and other personal equipment stored on the University premises; (g) in about January 2018, after [Appellant] raised concerns about her wellbeing and safety on campus, the University failed to provide her with appropriate support; (j) between about October 2019 and about March 2020 the University failed to properly investigate and address [Appellant's] allegation that a fellow student of the University, [YDJ], had used [Appellant's] work without her permission and without acknowledgement of her work."
The Tribunal found [405] that, although "unrelated", each of these allegations suffered "from the same defect". The Tribunal recorded that ZZI had "not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable and definite inference" could be drawn that one of the reasons for any of the alleged detriments was that [ZZI] had made complaints about A/Prof Holdsworth and/or the University".
The Tribunal then considered ZZI's complaint that "In or about July 2018, the University failed to provide ZZI with equipment that had been purchased to support her research, being a "new PC and key". The Tribunal recorded in that regard [406] that ZZI claimed, contrary to the evidence of Holdsworth, which was corroborated by Professor Johnston, that she had not been provided with a new Alienware PC and key. The Tribunal held that if it was "assumed that those alleged facts are established and a detriment was suffered, I am again without an evidentiary basis connecting the detriment and the complaints about A/Prof Holdsworth and/or the University". For those reasons the ZZI's claim failed.
The Tribunal considered [407]-[408] ZZI's claim that "In about March 2020, the University delayed [ZZI's] thesis examination and/or provided for a thesis examination timeframe of 12 weeks whereas the usual timeframe is 8 weeks". The Tribunal held [407] that, as the alleged conduct fell outside "the temporal scope of the second complaint, as determined by the President of the Anti-Discrimination Board (26 October 2018 to 31 December 2019) the Tribunal did not have power to determine the allegation. The Tribunal referred, [408], to evidence which, if the Tribunal had jurisdiction, would have precluded the success of the complaint.
The Tribunal then considered three claims made by ZZI, which were that: "(k) on or about 6 September 2018, the University issued [Appellant] with a Notice of Alleged Misconduct; (l) on or about 3 October 2018 the University determined that [Appellant] had breached a Student Conduct Rule and imposed a penalty upon her; (m) on 22 October 2018, the University failed to uphold [Appellant's] appeal of the determination."
The evidence with respect to those complaints was recorded by the Tribunal [409]-[416]. The Tribunal concluded [417] that ZZI had not made any submissions "to explain the basis for her contention that one of the reasons the University found her guilty of misconduct and dismissed her appeal was that she made complaints about A/Prof Holdsworth and/or the University". The claim was thus not substantiated.
The Tribunal considered [418] ZZI's complaint that "between November 2017 to present, the University has failed to appropriately address [ZZI's] concerns about her candidacy and programme". The Tribunal found in that regard [418] that ZZI had "not identified which of her concerns were not addressed by University staff or, more relevantly, "which of those concerns were not addressed because she had made complaints about A/Prof Holdsworth and/or the University". The claim was thus not established [419].
For the reasons which it had earlier recorded, the Tribunal rejected [420] ZZI's claim that "between November 2017 to present, the University has failed to facilitate the provision to [ZZI] of a statement of technical expertise from A/Prof Holdsworth". The Tribunal considered [421]-[422] ZZI's claim that "between March 2018 and May 2019, the University's employees have made disparaging remarks about [ZZI]". The Tribunal inferred [421] that the remarks in question were made by Ms Fairley, Professor Burd, Ms Jarvie and Ms Savvy. The Tribunal recorded [422] that it had not been suggested to Ms Fairley or Professor Burd that "the offending remarks they made were related in some way to the complaints made by [ZZI]". The Tribunal further recorded that ZZI had not made any submissions which might assist it to "understand the basis upon which an inference could be drawn that one of the reasons that any of the above employees made those remarks was that [ZZI] had made a complaint about A/Prof Holdsworth and/or the University". The claim was thus rejected.
The Tribunal considered [423]-[426] ZZI's complaint that "In about 2018, the University unilaterally assigned [ZZI] a co-supervisor, Suzanne Snodgrass, without consultation with or agreement from [ZZI]".
The Tribunal recorded [427] its understanding that the "purported detriment" in relation to this allegation "to be A/Prof Stanwell's alleged failure to raise with [ZZI] his recommendation that A/Prof Snodgrass be appointed, before that appointment was made". For the purpose of dealing with the claim, the Tribunal assumed that ZZI first learned of that appointment on 22 February 2018. The Tribunal accepted [428] A/Prof Stanwell's claim that he was "unaware of [ZZI's] complaints about the University and A/Prof Holdsworth when he decided to recommend A/Prof Snodgrass' appointment. He gave a plausible explanation for recommending A/Prof Snodgrass' appointment. There was no evidence to cast doubt on it". The Tribunal had not been "referred to any material which might assist to explain the basis for the assertion that the decision to appoint A/Prof Snodgrass, or the manner that that appointment was made, was related in some way to the complaints [ZZI] made about A/Prof Holdsworth". ZZI's claim was thus "not proven" [429].
For the foregoing reasons the Tribunal held [430] that the complaint of victimisation made against the University was not substantiated.
The Tribunal then proceeded to make orders which reflected its findings with respect to the various claims by ZZI against A/Prof Holdsworth and/or the University.

[4]

Principles governing the appeals

ZZI prepared her own grounds of appeal and appealed "on a question of law and other grounds". In the introductory paragraphs of her grounds of appeal, ZZI sought that the Appeal Panel consider "corrections and clarifications" to the reasons of the published decision of the Tribunal which gave rise to her appeal.
The Appeal Panel has not entertained that application. The extent to which the reasons of the Tribunal at first instance could be corrected, clarified or otherwise changed are limited by the provisions of s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), none of which could be enlivened in the present proceedings. If there were grounds upon which the reasons for the decision at first instance could be corrected pursuant to s 63, which has not been established, the procedure pursuant to which that should be pursued is contained in s 63(1) of the CAT Act (Sunaust Properties Pty Limited v The Owners Strata Plan Number 64807 2022 NSWCATAP 335).
Although ZZI clearly articulated her challenges in written and oral submissions, as ZZI apparently prepared her grounds of appeal without legal assistance, we will act consistently with the approach of the Appeal Panel recorded in Ros v Commissioner of Police [2020] NSWCATAP 70 at [21]: "In order to assist the appellant as a self-represented litigant in the articulation of [her] grounds of appeal, the Appeal Panel has considered whether it can discern any questions of law as grounds of appeal from the Notice of Appeal, the appellant's submissions and the first instance decision."
ZZI's grounds refer to an asserted "lack of evidence". ZZI characterised a number of these challenges as "no evidence" grounds, citing authority to which we will shortly refer in support of her contentions. Other grounds articulated by ZZI appear based on her assertion that, on the evidence, which was before the Tribunal, the Tribunal should have made different, and more favourable findings of fact. A number of ZZI's grounds assert that there was evidence available at the hearing which was not adduced.
Whilst the Appeal Panel does not accept that it has jurisdiction to make "corrections and clarifications" to the reasons for the decision at first instance, the grounds of appeal which assert the need for those grounds have been considered in case they reveal appealable errors. Although not strictly a ground of appeal, ZZI sought (ground 16) that her "sensitive health information" not be disclosed in our decision in the appeals. As is not in doubt, publication of ZZI's identity has been prohibited, and will continue to be prohibited pursuant to s 64 of the CAT Act. The Appeal Panel does not consider that anything to which we refer is reasonably likely to reveal sensitive or other health information by which the order protecting ZZI's identity would be likely to be compromised.
ZZI's request (ground 17) that "non-publication of the name of the Appellant's external supervisors is required to protect their privacy", is not a ground of appeal. The names of a number of third parties appear in the reasons for the Tribunal's decision of 24 May 2022. So far as the Appeal Panel is aware, none of those persons has sought an order pursuant to s 64 of the CAT Act prohibiting publication of their identity. As ZZI asserted, the power to make such orders extends to persons whether or not they were witnesses in the proceedings. Accordingly, as none of the persons to whom ZZI referred has sought such an order, the Appeal Panel is not persuaded to extend the ambit of the current s 64 order prohibiting the publication or disclosure of ZZI's identity.
ZZI sought leave to appeal in the event that the Tribunal considered that leave was necessary. The grounds upon which ZZI sought leave to appeal did not address the matters which the authorities suggest are relevant for that purpose. The Appeal Panel has nevertheless considered whether the power to grant leave to appeal should be enlivened.
By their Reply to ZZI's appeal, Holdsworth and the University asserted that ZZI required leave to appeal and opposed such leave being granted. By their Notice of Appeal, Holdsworth and the University sought leave to appeal asserting that the decision of the Tribunal was an "interlocutory decision, in that the proceedings have not yet been decided on a final basis".
By their Notice of Appeal, Holdsworth and the University asserted that the Tribunal had erred in finding that a comment which Holdsworth had made to ZZI was of a sexual nature and/or that a reasonable person would probably have anticipated that ZZI would be offended by the comment or that such conduct could amount to sexual harassment within the AD Act. Although we will consider the appeals separately, it is convenient to record the principles which govern both at this stage.
Although not necessarily asserted in such terms, a number of ZZI's complaints involve challenges to findings of fact by the Tribunal where the evidence of ZZI and Holdsworth, or other witnesses, was in conflict. The principles governing such challenges are not in doubt and do not require extensive reiteration. It is not in doubt that the Tribunal did not find, other than, perhaps in one instance, that ZZI's evidence was preferred to that of other witnesses where the resolution of disputed issues of primary fact was involved.
The Tribunal's findings appear to result primarily from a "credit" finding. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 116 at [25] Gleeson CJ, Gummow and Kirby JJ said that: "The appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellant courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and the conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowances in that respect."
Their Honours added at [29] that in: "some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to competing inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect" to its own conclusion."
The Appeal Panel approaches the Tribunal ZZI's challenges to findings of fact based on credibility as requiring her to discharge the onus to which the High Court referred in Fox v Percy.
To the extent that other findings of primary fact, not based upon credibility, are challenged by ZZI, and to the extent that they may be challenged by Holdsworth and the University, the observations of Barwick CJ in Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 at 304 have application. His Honour there said that an appeal by way of rehearing, which these appeals are, was not "a retrial of the issues. The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do; but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position to the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not reverse the finding of fact unless it is convinced that it is wrong."
As will be seen, the fate of the parties' appeals, ultimately turns more on whether inferences drawn from findings of primary fact were vitiated by appealable error than whether the findings of primary fact on which they were based were erroneous in law. This is particularly so in the case of Holdsworth and the University's appeal.
Pursuant to s 80(2)(b) of the CAT Act either party may appeal as of right on any "question of law". In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel recorded a non-exclusive list of "questions of law", being (citations omitted): "(i) whether there has been a failure to provide proper reasons; (ii) whether the Tribunal identified the wrong issue or asked the wrong question; (iii) whether a wrong principle of law had been applied; (iv) whether there was a failure to afford procedural fairness; (v) whether the Tribunal failed to take into account relevant (i.e. mandatory considerations); (vi) whether the Tribunal took into account any irrelevant consideration; (vii) whether there was no evidence to support a finding of fact; and (viii) whether the decision is so unreasonable that no reasonable decision maker would have made it."
As has long been recognised, the fact that other findings of fact may have been open to a decision maker does not mean that the findings recorded by the decision maker were wrong (Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 at [45]).
In Australian Broadcasting Tribunal v Bond ("the Bond Media case") [1990] HCA 33; (1990) 170 CLR 321 the High Court accepted that "whether there is any evidence of particular fact is a question of law" and that "whether a particular inference can be drawn from facts found or agreed is a question of law" and that "the making of findings and the drawing of inferences in the absence of evidence is an error of law" ([87]). The High Court also recorded that there is "no error or law simply in making a wrong finding of fact" where there is evidence of the fact.
In Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390, the High Court reiterated ([33]) that in determining a "no evidence" ground, it was necessary to consider "whether there was any evidence before the tribunal upon which it could make particular findings" which was a question of law. The High Court reiterated ([91]) that "whether there was no evidence to support a factual finding is a question of law, not a question of fact".
As the authorities make clear, if ZZI establishes that a material finding of fact was made in the absence of evidence that would constitute error on a question of law thus enlivening s 80 of the CAT Act. Conversely, if all that ZZI establishes is that, on evidence which was before the Tribunal, other findings of fact could have been made, a "no evidence" challenge fails.
Although ZZI did not articulate her complaint as a legal unreasonableness challenge, a number of submissions made by her appeared to raise such a challenge. In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 the High Court recorded [30] that: "The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision maker has given insufficient or excessive consideration to some matters or has made an evaluative judgement with which a court disagrees even though that judgement is rationally open to the decision maker."
The High Court further recorded that a distinction "may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable", and that ([31]) the reasons for decision may demonstrate "an arbitrariness about the decision, which rendered it unreasonable" as that term is known in law. A "disproportionate exercise of an administrative discretion … may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves". The High Court further recorded ([76]) that "unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification".
In Torbey Investments Corporation Pty Ltd v Ferrara [2017] NSWCA 9 the Court of Appeal accepted that "to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may itself constitute a constructive failure to exercise the function conferred on the Tribunal" (Chen v Health Care Complaints Commission [2017] NSWCA 186, at [103]). In Torbey Investments, at [66] the Court of Appeal also said that "Without departing from that reasoning, it is appropriate to strike a note of caution. A tribunal, like a court, is not obliged to refer to all the material before it which may be thought by a party, or even by the reviewing court, to constitute relevant evidence. Evidence is often repetitive and will be of variable reliability. Hundreds of pages of evidence may need to be reduced to a clear and succinct statement of written reasons. Comprehensiveness is a relative concept and must be balanced against other relevant values".

[5]

Evaluative determinations

The present appeals relate to an "evaluative decision" of the Tribunal. The principles governing such appeals have been considered by courts in a number of decisions.
In Hinch & Macquarie Broadcasting Holdings Limited v Attorney General (Vic) [1987] HCA 56 (1987) 164 CLR 15, at [19] Wilson J said that "a decision which is the outcome of the balancing process is not a discretionary judgment. It is the result of an evaluation, consistently with accepted judicial principle, of competing matters of fact".
In Dwyer v Calco Timbers Pty Limited [2008] HCA 13 after describing [37]-[39] the nature and features of discretionary decisions, the High Court said that: "Rather different is the situation where statute creates a legal norm, in this litigation that of a "serious injury", and does so in terms which require for their operation in a given dispute the identification and evaluation of facts and assigns that fact finding in the first instance to a judge sitting alone. The occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. That enquiry is not advanced by describing the overall decision making process of the primary judge as "discretionary"."
In Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, which was an appeal against orders made pursuant to the Family Provision Act 1982 (NSW), the issue in which was whether the jurisdiction to make an order for provision was enlivened, the High Court said [20] that (citations omitted): "Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgements. The evaluative character of the decision stems from the fact that the Court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life."
The High Court referred to the statement by Mason J in White v Baron [1980] HCA 14; (1980) 144 CLR at 443 that "There is an element of the artificial in saying that it is only after jurisdiction is established that the exercise of discretion begins, for the twin tasks which face the primary judge are similar".
Despite the difficulty in some instances of drawing a bright line between an evaluative and a discretionary determination, the High Court recorded [24] that: "Strictly speaking, however, the jurisdictional question, though it involves the making of value judgements, is a question of objective fact to be determined by the judge at the date of the hearing. This conclusion may have consequences in terms of what an appellant needs to demonstrate on an appeal."
It is not in doubt, the Tribunal in this case was concerned with determining whether its jurisdiction pursuant to the provisions of the AD Act was enlivened. The jurisdiction was either enlivened or it was not. No part of the decision of the Tribunal under appeal involved the exercise of discretion. We have earlier recorded what the parties need to demonstrate if their appeals are to succeed. Significantly, and unlike appeals against discretionary judgments, grounds reliant upon challenges to the "weight" afforded by the Tribunal to particular facts cannot advance the present appeals on a question of law, and can potentially do so to only a limited extent by leave on other grounds.
The High Court also recorded in Hinch, at [28], that unless appellate courts show "restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be brought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged". As we have earlier recorded, the "second opinion" of the Appeal Panel has no role in determining the fate of the current appeals.
In approaching the challenges of each party to the decision of the Tribunal at first instance, the Appeal Panel is mindful of these statements of principle. To illustrate, if ZZI and/or Holdsworth and the University are unsuccessful with the present appeals, the Tribunal will then determine, in the exercise of discretion, the appropriate order in the light of ground 8 of ZZI's application being upheld. Having regard to the authorities, any appeal against the determination of that issue would then fall to be determined in accordance with the principles recorded in House v R [1936] HCA 40; (1936) 55 CLR 499, and consistently followed thereafter.
ZZI sought leave to appeal on grounds not involving questions of law. Those relied upon by ZZI in her Notice of Appeal do not readily accord with recognised grounds for a grant of leave to appeal. In Ros the Appeal Panel recorded ([22]) that the jurisdiction to review merits "is not predicated on the appellant identifying a question of law or persuading the tribunal there has been an error or law". The Appeal Panel referred to the decision in Collins v Urban [2014] NSWCATAP 17 in which the Appeal Panel accepted that ordinarily, in order to be granted leave an 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".
In Ros, the Appeal Panel further recorded ([23]) that, by reference to the decision in Collins, it was ordinarily appropriate to grant leave to appeal only in matters involving: 1. issues of principle; 2. questions of public important or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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."
ZZI sought leave to appeal without identifying the legal basis on which such leave is sought. Holdsworth and the University sought leave to appeal solely on the basis that the decision of the Tribunal at first instance which it challenges was interlocutory, and thus requires leave pursuant to s 80 of the CAT Act. It is unnecessary to determine whether the decision of the Tribunal was interlocutory. We proceed on the basis that, if appealable error is established on a question of law, or on other grounds, to the extent that leave to appeal is required, such leave should be granted. If appealable error is not demonstrated on a question of law, or on other grounds, it is academic whether Holdsworth and the University require leave, as their challenges would fail leave would be refused if required. If not, the appeal would be dismissed, and leave to appeal refused.

[6]

ZZI's appeal

In support of her appeal ZZI filed an outline of submissions of 75 pages, together with 83 pages of annexures. Holdsworth and the University filed submissions in response on 8 September 2022. ZZI filed submissions in reply on 29 September 2022.
After reviewing the reasons for the Tribunal's decisions of 24 May 2022, ZZI set out the terms of s 22E of the AD Act. Under the heading "Summary of facts and relevant considerations about the sexual harassment complaint" ZZI referred to a number of findings of the Tribunal with respect to "the frequency of the proven conducts". Under the heading "The overall context in which hugging and touching occurred" ZZI referred to evidence, which the Tribunal accepted, which established that "touching a student is not acceptable." ZZI then referred to a number of further paragraphs from the reasons of the decision of the Tribunal at first instance, including findings identified under the heading "A/Prof. Holdsworth was in the position of power". ZZI referred (37) to evidence which Holdsworth had given to the Newcastle Local Court on 12 November 2021. Nothing there referred to conflicts with any identified finding of the Tribunal or advances ZZI's complaints. ZZI reiterated (39-40) a number of matters the substance of which the Tribunal accepted in its findings of primary fact. ZZI referred to the provisions of s 28A of the Sex Discrimination Act 1984 (Cth) (SD Act).
In view of the findings of primary fact recorded by the Tribunal, we do not understand the significance of ZZI's submissions at (43). They do not identify any finding of primary fact which is inconsistent with the Tribunal's findings, or the basis upon which the Tribunal upheld one of ZZI's complaints, and rejected the balance of them. ZZI asserted that "Holdsworth was at all times aware of [ZZI] being uncomfortable with the conduct" and cited a number of paragraphs from the decision of the Tribunal in support of that proposition. ZZI's submission (48) that, from the first day she arrived in Australia on 26 August 2015 she made clear to Holdsworth that she was "not comfortable with hugging", is not in conflict with any relevant finding of primary fact recorded by the Tribunal.
ZZI also referred (48) to Holdsworth's concessions with respect to sharing accommodation in Ireland during a study trip to that country. As the Tribunal made findings with respect to that issue which formed the basis for ZZI's success with one of her complaints (complaint 8), it is difficult to understand how that could advance ZZI's case on appeal. ZZI submitted (54) that if the Tribunal was "not satisfied that [ZZI] verbally object (sic) to A/Prof Holdsworth's offer for sharing accommodation, it could and should be satisfied that considering above evidence it [sic] clear that [ZZI], on several occasions, tried to convey to A/Prof Holdsworth that she was not comfortable with sharing the accommodation". The Tribunal does not need to engage with this issue, either in the context of ZZI's appeal, or the appeal by Holdsworth and the University. The Tribunal made findings of primary fact in substantially the terms in which ZZI asserts that it should have.
At (55) ZZI set out her grounds of appeal with respect to the sexual harassment complaint. They read as follows: "Ground 1: The Tribunal erred in finding that (at 176) the conduct of A/Prof Holdsworth in hugging and kissing [ZZI] (allegation 1) could not be of a sexual nature. Ground 2: The Tribunal erred in finding that (at 204) the conduct of A/Prof Holdsworth in poking and touching [ZZI] (allegation 2) could not be of a sexual nature. Ground 3: The Tribunal erred in finding that (at 210) the conduct of A/Prof Holdsworth in poking and touching [ZZI] (allegation 3) could not be of a sexual nature. Ground 4: The Tribunal erred in finding that (at 224) the conduct of A/Prof Holdsworth in placing hand on [ZZI's] back (allegation 4) could not be of a sexual nature. Ground 5: The Tribunal erred in finding that (at 246) the conduct of A/Prof Holdsworth in touching [ZZI's] back (allegation 6) could not be of a sexual nature. Ground 6: The Tribunal erred in finding that (at 261) the conduct of A/Prof Holdsworth in suggesting we share accommodation with [ZZI] (allegation 7) could not be of a sexual nature. Ground 7: The Tribunal erred in that (at 281) … the balance of the complaint of sexual harassment is not substantiated."
ZZI asserted (57) that the Tribunal "failed to take into account relevant factors in determining whether A/Prof. Holdsworth's conducts were of a sexual nature within the meaning of s22A(b) of the AD Act". ZZI referred (58) to the findings of the Tribunal and set out (59-69) the findings which she submitted that the Tribunal should have made in that regard. As their terms confirm, the crux of ZZI's challenges to the decision of the Tribunal relates to whether the proven conduct of Holdsworth should have been found in each instance to have been "of a sexual nature". Although ZZI may not see it thus, the findings of primary fact which informed those determinations were either not challenged, or not able to be successfully challenged in accordance with the principles governing such challenges to which we have referred.
ZZI referred to Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203 in which she asserted "The Tribunal held that conduct may be of a sexual nature if it was not intended to have a sexual connotation but if it is likely to be, or if it is reasonably capable of being, sexual in nature". We do not understand ZZI to assert that the Tribunal erroneously rejected that principle, but that it erred in not making the findings sought by her in reliance upon it.
ZZI asserted (70) that the conduct of A/Prof Holdsworth "hugging and kissing [ZZI] on several occasions is reasonable (sic) capable of being sexual in nature" and that the Tribunal "failed to consider this into account and erred in characterising the conduct of A/Prof Holdsworth could not be of a sexual nature. In fact, it is capable of being sexual in nature and therefore could be of a sexual nature". We do not understand the Tribunal to have found that the proven conduct was not "capable" of being of a sexual nature, but to have not been satisfied on the balance of probabilities that it was.
ZZI further asserted (71) that the Tribunal had failed to take into account that A/Prof Holdsworth was in the position of power. ZZI also referred to a passage in the decision of Smith v Hehir & Financial Advisers Australia Pty Limited [2002] QSC 136 stating that: "Whether an action is compassionate or reprehensible will depend on the overall context in every case. The context here is that the action was not one between friends of longstanding: it was an action by a middle aged male employer to a young female employee who had only worked in the office for two weeks. It occurred not long after another incident when distress due to a phone call had been used as an excuse to massage the complainant."
As the statement makes clear, how conduct is classified is by reference to the context in which it occurred. ZZI has not pointed to any relevant finding of primary fact recorded by the Tribunal which was inconsistent with the parts of that passage which applied to her complaints about Holdsworth's conduct.
Although critical of them, ZZI referred (75) to findings made by the Tribunal which were favourable to her. Although the findings to which ZZI referred (76) were favourable to her, ZZI asserted that the Tribunal had "failed to take into account the overall context, in which the conduct occurred". It is for ZZI to identify matters which were relevant to that evaluation which were not taken into consideration, and establish that, had such matters been taken into consideration, a different outcome could or should have resulted.
ZZI asserted (78-79) that the Tribunal had failed to take into account that Holdsworth's conduct followed a "pattern of seeking intimacy" with her and submitted (80) that: "Section 28(A) of the SD Act makes it clear that the circumstances to be taken into account when determining whether the conduct was an unwelcome conduct of a sexual nature include, but are not limited to, (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; and (d) any other relevant circumstances."
ZZI submitted (81) that the Tribunal failed to consider that: "(a) the conduct occurred was between a middle aged male supervisor and a young female student (b) the action by A/Prof Holdsworth in hugging and kissing [ZZI] was not one between friends of longstanding: it was an action by a middle aged male supervisor to a young female student (c) at least one of the reasons that A/Prof Holdsworth hugged or kissed [ZZI] was that she was a female student; because, otherwise, he would not have hugged or kissed him [sic] (d) A/Prof Holdsworth was in the position of power (e) [ZZI] was in an "extremely vulnerable position" along with her gender and belief that she [sic] keeping her study necessitated her endurance of the inappropriate interaction (f) the overall context was tertiary sector, where hugging and kissing students is inappropriate, and touching a student is unacceptable."
For the reasons she advanced, ZZI submitted (83-84) that the Tribunal ought to have found that Holdsworth's conduct was "reasonably capable of being sexual in nature" or "could be of sexual nature". As ZZI recorded (85), the Tribunal found Holdsworth's conduct to be "unwelcome" and (86) that "a reasonable person would have anticipated that [ZZI] would be offended" by that conduct. In those circumstances ZZI submitted that the Tribunal should have found that Holdsworth's conduct as characterised in allegation 1 of her complaint amounted to sexual harassment within s 22A(b) of the AD Act and was thus unlawful pursuant to s 23I(1) of the AD Act (87).
In their written submissions, Holdsworth and the University referred to the terms of s 22E of the AD Act which provides that: "(1) It is unlawful for a member of the staff of an educational institution to sexually harass - (a) a person who is a student at the institution, or"
It was conceded, correctly, that Holdsworth was a member of staff of an educational institution and at the relevant time ZZI was a student at that institution. The Appeal Panel was reminded of the terms of s 22A of the AD Act which provide that: "A person sexually harasses another person if - (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) a person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."
It was thus submitted (10) that complaint involved three elements, namely: "(a) first, the conduct is unwelcome, on a subjective basis; (b) second, the conduct is, relevantly, conduct of a sexual nature in relation to the other person, assessed at an objective standard; and (c) third, the conduct was engaged in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated."
Holdsworth and the University submitted (11) that the finding by the Tribunal that each of the conduct as found by it was not conduct of a "sexual nature" was open to the Tribunal and not able to be disturbed on appeal. Reference was made to the decision of Mansfield J in Poniatowska v Hickinbotham [2009] FCA 680 at [294] where His Honour said: "The term "conduct of a sexual nature" is not defined other than inclusively in the SD Act. The content of the term "of a sexual nature" must take its meaning from its context. Its context includes s28A(1)(a), referring to sexual advances or requests for sexual favours. Section 28A(1)(b) and (2) is intended to extend the circumstances of sexual harassment beyond the scope of s28A(1)(a), but I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set out the outer bounds of "conduct of a sexual nature". It does not, in my view, extend to encompass the conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language."
His Honour's remarks were submitted to have been cited with approval by the Court of Appeal in Vitality Works Australia Pty Limited v Yelda (No 2) [2021] NSWCA 147 at 37. In Yelda, at [37], Bell P and Payne JA said "The second element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct. This is an objective test. …" and that evidence "of a subjective reaction of an unknown number of people about this question is a clear example of why the subjective views of participants are irrelevant to the question of whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the conduct".
It was further submitted (17) that the second element of "sexual harassment" required a finding of conduct of a sexual nature "assessed at an objective standard" and that the test was whether conduct "is reasonably capable of being sexual in nature and therefore could be of sexual nature" was not the correct test. Holdsworth and the University submitted that the Tribunal: "clearly did have regard to the fact that: (a) the "first embrace" incident led A/Prof Holdsworth to observe that [ZZI] as appearing startled by the hug and "not obviously comfortable" (Decision [146]-147]). Naturally enough, all subsequent (i.e. not the first) embraces followed the first; (b) A/Prof Holdsworth did not greet male students in the same way (Decision [173]); (c) A/Prof Holdsworth was in a position of power (Decision at [166], [173]) indeed, the Primary Member expressly stated (Decision [176]) that she had "taken into account the power imbalance between A/Prof Holdsworth and [ZZI]"; and (d) the conduct occurred in the tertiary sector (Decision [173] and [175])."
It was further submitted to be "unsurprising" that the Tribunal did not find or take into account a "pattern of seeking intimacy" by Holdsworth as that was "inconsistent" with the conduct found by the Tribunal, and also a matter which was not put to Holdsworth in cross-examination, or formed part of ZZI's case. Reference was made to extracts from the transcript of the hearing in support of those contentions. Support for those contentions was sought to be gained from the decision in Browne v Dunn (1893) 6 R 67 and Ashby v Slipper [2014] 219 FCR 322 at [74] and [77].
It was further submitted (22) that, having "found only one instance of sexual harassment - being a comment made to a third party which was unknowingly overhead by [ZZI]", there was "no basis to assert that there was a "pattern of sexual behaviour"". Unless ZZI establishes that the Tribunal erred by failing to find more than one instance of conduct of a sexual nature, it is hard to imagine how a "pattern" of such conduct should, or could have been found.
In her submissions in reply (4) ZZI referred to a number of decisions of the Tribunal, including Yelda and Vitality Works, in support of her contention that conduct may have a "sexualised connotation, if it [sic] likely to be, or if it is reasonably capable of being conveyed by the conduct, will result in the conduct being of sexual in nature within the meaning of the AD Act".
The decisions to which ZZI referred all proceeded on the basis that whether conduct was of a sexual nature within the meaning of the AD Act involved an "objective assessment" of the conduct. ZZI reiterated in her submissions in reply most of the matters to which she referred in her primary submissions. ZZI took issue with respect to "the Browne v Dunn contention on behalf of Holdsworth and the University, and referred (14) to a number of passages in the decision of Vilanenko v Commissioner of Police [2022] NSWCATAP 279 in support of her contentions. Whilst we do not accept ZZI's contention (19) that the submissions on behalf of Holdsworth and the University in reliance on Browne v Dunn were "vexatious", we do not ultimately need to accept or reject those contentions in order to determine any of her grounds of appeal.

[7]

Consideration of Ground 1

This ground is concerned with the finding of the Tribunal at [176]. It is appropriate that we set out what the Tribunal there said: "A/Prof Holdsworth's conduct in embracing [ZZI] was undoubtedly inappropriate. It was presumptuous and arguably patronising. Relevantly, it was not accompanied by any words or conduct, of a sexual nature. In my view, objectively assessed, it could not be characterised as being of a sexual nature. In reaching that conclusion, I have taken into account the power imbalance between A/Prof Holdsworth and [ZZI], the disparity in their ages, and the other factors highlighted by [ZZI] as evidencing her vulnerability. Those factors might explain why [ZZI] took no steps to stop or to complain about A/Prof Holdsworth but of themselves do not tend to support a characterisation of the hugs as being of a sexual nature."
The Tribunal identified [93] the two key issues which this complaint required it to determine, they being: "(i) whether the particularised conduct alleged by [ZZI] occurred, and (ii) whether any admitted or proven conduct amounts to sexual harassment within the meaning of the AD Act."
The Tribunal recorded, accurately there is no doubt, at [94] that ZZI bore the onus of establishing the facts alleged on the balance of probabilities.
The Tribunal recorded [95] that there was "little independent or contemporaneous evidence to corroborate the respective accounts given by [ZZI] and A/Prof Holdsworth", but that there was: "broad agreement about several factual issues which included: (i) on occasion, in greeting and farewell, A/Prof Holdsworth hugged and kissed [ZZI] on each cheek; (ii) on occasion, A/Prof Holdsworth touched [ZZI's] back and upper arm; (iii) on occasion, A/Prof Holdsworth poked [ZZI] on the upper arm; (iv) A/Prof Holdsworth suggested to [ZZI] that they share accommodation during the study trip to Ireland; (v) before [ZZI's] return to Australia in October 2017 A/Prof Holdsworth had not raised with [ZZI] concerns about her progress with her PhD."
After referring to controversial factual issues, the Tribunal made six observations, the accuracy of which cannot be disputed [98]-[103]. Against that background the Tribunal assessed the credibility of witnesses whose evidence had been challenged by the opposing party [105]-[107]. In the context of its "consideration" of disputed evidentiary issues, the Tribunal referred [108] to the caveats expressed in Fox v Percy with respect to reliance upon demeanour when assessing credibility of witnesses. Nothing to which ZZI has referred persuades us that the Tribunal erroneously relied upon demeanour in assessing the credibility of any witness before it.
For the reasons it recorded [109] the Tribunal decided "not to give weight" to the evidence of psychometric testing of ZZI. To the extent that ZZI complains about that decision, nothing to which ZZI has referred establishes that the Tribunal erred.
Significantly for present purposes, the Tribunal accepted [110] that "some of the evidence given by [ZZI] in these proceedings appeared to be embellished and inherently implausible", a number of examples of which were given. The Tribunal further recorded [110] matters which were "suggestive of a lack of candour" on the part of ZZI. Nothing to which ZZI has referred the Appeal Panel establishes that finding to have been erroneous in law.
The Tribunal closely considered [112]-[113] challenges to Holdsworth's credibility and concluded, accurately in our view, that resolving the competing evidence given by ZZI and Holdsworth "turns largely on whether the disputed conduct occurred and not their respective views of the proper characterisation of that conduct".
The evidence of Dr Sharafutainova was accepted as "credible and internally consistent" for the reasons the Tribunal recorded [114]. The contested evidence of Dr Shirvanimoghaddam was closely considered by the Tribunal [115]-[118]. For reasons it recorded [119]-[122], the Tribunal exercised "care in accepting" Dr Shirvanimoghaddam's uncorroborated evidence. Nothing to which ZZI has referred the Appeal Panel establishes that the Tribunal erred by exercising such "care" with respect to that evidence.
After closely considering the evidence in that regard [123]-[143] the Tribunal directed itself to the particulars of allegation 1, commencing at [144]. In the course of those reasons, the Tribunal recorded six matters which were damaging to the credibility of ZZI's evidence with respect to material factual disputes. Nothing to which ZZI has referred the Appeal Panel demonstrates that any of those findings, or the inferences which the Tribunal drew from them was erroneous in law.
Under the heading "Findings", the Tribunal recorded [153] the parts of the conduct particularised in allegation 1 which had been established, they being: "(i) on two occasions while alone in his office with [ZZI], A/Prof Holdsworth hugged [ZZI]: on her arrival in Australia on 26 August 2015 and on her return from Iran on 27 January 2016; (ii) on three occasions in late 2016, on greeting and farewelling her, A/Prof Holdsworth hugged and kissed [ZZI] on each cheek in the company of one or both of [ZZI's] parents; (iii) as admitted by A/Prof Holdsworth to a Pinnacle investigator, he hugged [ZZI] during a surprise birthday party arranged for him in Ireland; (iv) in addition, as reported to Pinnacle and conceded as possible by A/Prof Holdsworth in these proceedings, he hugged and kissed [ZZI] on the cheek on several other occasions, such as when she departed and returned from Australia."
For the reasons which it recorded , the Tribunal held, correctly [155], that whether Holdsworth's proven conduct was "unwelcome" "must be assessed only by reference to [ZZI's] state of mind" and that whether Holdsworth "knew or ought to have known that [ZZI] considered the conduct unwelcome is irrelevant". For the reasons which the Tribunal had earlier recorded, it was not satisfied that ZZI told Holdsworth or indicated to him that his conduct was unwelcome but that was "not determinative of the question of whether [ZZI] considered the proven conduct to be unwelcome" [156]) For the reasons which it recorded the Tribunal found that, at the time of the conduct ZZI "probably considered that embrace unwelcome" [158].
The Tribunal found [159] that the "second embrace" was "probably considered" unwelcome by ZZI. The Tribunal also found [160] that the embraces given in the presence of ZZI's parents and subsequent embraces were "probably found" to be unwelcome by ZZI.
To the extent that ZZI challenges any of those findings of fact, which were favourable to her, nothing to which she has referred, either with respect to the Tribunal's assessment of credibility, or of the assessment on grounds not involving credibility, demonstrates error. Indeed, those findings were necessary if ZZI's challenges to the Tribunal's rejection of her contention that Holdsworth's conduct was "of a sexual nature" was to have prospects of success.
Under the heading "Would a reasonable person having regard to all of the circumstances have anticipated that [ZZI] would be offended, humiliated or intimidated?" the Tribunal considered the evidence and, for the reasons which it recorded, found [165] that, in all the circumstances "the reasonable person probably would not have anticipated that [ZZI] would be humiliated or intimidated" by Holdsworth's "embrace". The Tribunal was satisfied however [166] that the reasonable person probably would have anticipated that [ZZI] would be offended, in the sense of experiencing "minor displeasure". The Tribunal further recorded that the "reasonable person is likely to have found the giving of the hug presumptuous, as later acknowledged by A/Prof Holdsworth". The Tribunal also recorded [167] that "for largely the same reasons, I find that the reasonable person would have anticipated that [ZZI] would be offended by the second embrace, notwithstanding that [ZZI] had not said to or otherwise indicated to A/Prof Holdsworth, that his conduct was unwelcome".
The Tribunal further found [168] with respect to Holdsworth's actions in "hugging and kissing [ZZI] in the company of her parents" in circumstances where ZZI had not said or done anything to suggest that the conduct was unwelcome, and ZZI's parents "had exchanged a hug and kiss with A/Prof Holdsworth and his wife" it was not satisfied that the reasonable person would have anticipated that ZZI would be offended by those embraces.
Nothing to which ZZI has referred the Appeal Panel persuades us that any inferences drawn by the Tribunal on its undisturbed findings of primary fact in these passages were not open to it.
The Tribunal then proceeded to consider whether the conduct was "of a sexual nature". The Tribunal referred to a number of passages from the decision of the Court of Appeal in Yelda, at [170] none of which is controversial for present purposes.
The Tribunal found [171] that the evidence did not "support a finding and nor is it suggested that embracing ZZI, A/Prof Holdsworth was making a sexual advance or requesting sexual favours. The question posed is therefore, whether the proven conduct falls within paragraph (b) of the definition of sexual harassment, that is, other unwelcome conduct of a sexual nature". The Tribunal recorded [172] that it was "not suggested" and not found that "either embrace could be characterised as sexually explicit" and asked whether "one or both", could be "characterised as "sexually implicit"". The Tribunal considered this issue, at [173]-[174], and referred [175] to the observations of McCallum JA (as McCallum CJ of the ACT Supreme Court then was) in Yelda with respect to the "infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries", which the Tribunal held applied "equally to other parts of Australian society including the tertiary sector".
After recording a series of criticisms of Holdsworth's proven conduct [176] the Tribunal recorded that those matters did not "of themselves" "tend to support a characterisation of the hugs as being of a sexual nature". Accordingly, and for the reasons it recorded, and had earlier recorded, the Tribunal rejected ZZI's first complaint.
As with many evaluative determinations, minds will reasonably differ with respect to the characterisation of conduct which is found to have been proved. As the authorities make clear, the ambit of reasonable disagreement is broad in circumstances such as the present. The issue is whether ZZI establishes error on a question of law. There has been no challenge to the adequacy of the Tribunal's reasons for its decision. Nor, in our view, could there have been having regard to the observations of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231.
Although ZZI may assert that the Tribunal identified the wrong question or asked the wrong question, nothing to which we have been referred establishes that to have been the case. Similarly, to the extent that ZZI may assert that the Tribunal applied a wrong principle of law, nothing to which ZZI has referred us establishes that to have been so. The parties before the Tribunal were undoubtedly afforded procedural fairness, and no party suggests otherwise.
ZZI's assertion that the Tribunal failed to take into account relevant considerations is not made out. The Tribunal did take into account each and every matter to which ZZI refers. Having taken them into account, the Tribunal simply did not decide the issue the way ZZI wished. The challenge of the failure to take into account relevant considerations fails. Similarly, the Tribunal did not err by taking into account any irrelevant considerations. To the extent that this ground may, but does not seem to involve any "no evidence challenge", there was evidence before the Tribunal capable of establishing each of the findings of fact made by it. The Tribunal's decision was rational, logical and cogently explained. Nothing to which we have been referred suggests that any finding of primary fact made by the Tribunal in reliance upon credibility was flawed in any of the ways identified by the High Court in Fox v Percy or, to the extent that those findings were not credit based, such findings were "wrong" as in the sense explained by Barwick CJ in Noble v Edwards.

[8]

Grounds 2, 3 and 4

ZZI agitated these grounds conjointly. The grounds provided: "2 The Tribunal erred in finding that (at [204]) the conduct of A/Prof Holdsworth in poking and touching [ZZI] (allegation 2) could not be of a sexual nature. 3 The Tribunal erred in finding that (at [210]) the conduct of A/Prof Holdsworth in poking and touching [ZZI] (allegation 3) could not be of a sexual nature. 4 The Tribunal erred in finding that (at [224]) the conduct of A/Prof Holdsworth in placing [sic] hand on [ZZI's] back (allegation 4) could not be of a sexual nature."
Before considering these challenges, it is appropriate to record the relevant findings of the Tribunal.
The Tribunal held at [204] that the conduct which it found proved and to have been unwelcome, and anticipated by the reasonable person to have caused ZZI "minor displeasure" was "relevant to, but not determinative of, whether the conduct was implicitly sexual".
The Tribunal found that "the prodding was not accompanied by any verbal or physical conduct which (was) of a sexual nature. Objectively assessed, I am not satisfied that the prodding could be characterised as being of a sexual nature". The Tribunal found, at [210] that "the touching of another person's body generally conveys familiarity and intimacy. While Dr Holdsworth touching was presumptuously familiar with [ZZI], and unwelcome to her, objectively assessed, in my view, there was nothing else from which it could be inferred to conduct of (a) sexual nature".
The Tribunal recorded, at [224] that it was not satisfied that the proven conduct of Holdsworth could be "characterised as conduct of a sexual nature". That proven conduct involved Holdsworth placing his hand on ZZI's shoulder.
In support of these grounds ZZI referred (91) to a number of findings made by the Tribunal, including the finding, at [195], that Holdsworth probably touched ZZI on her "shoulder, arm, back or hand" on "about 30 occasions". The thrust of the grounds seems to be (93) that, although no individual instance would compel a finding of conduct of a sexual nature, that finding was irresistible where the conduct formed "part of a pattern of sexual behaviour". ZZI cited (93) the passage from Shield v James & Lipman Pty Limited [2000] FMCA 2 in which findings were made that the conduct was "part of a pattern of sexual pressure" imposed on the complainant and that particular conduct was of a "sexual nature" as it formed "part of a broader pattern of inappropriate sexual conduct", the conduct being "not isolated incidents but part of a general pattern". The Tribunal clearly accepted that there had been a "pattern" of behaviour. The Tribunal also recognised that the issue was whether, either in isolation, or as part of a "pattern" Holdsworth's conduct was of a sexual nature.
For the reasons which she set out in detail (94-102), and by reference to the decision of the Tribunal in Yelda, ZZI submitted that the Tribunal had erred by failing to find that Holdsworth's conduct was part of a pattern from which it should have been inferred that the conduct was of a sexual nature. ZZI's submissions were encapsulated (105) in the following terms: "Primary Member failed to take into account the overall context, in which the conduct occurred. The context is the tertiary sector, where touching is unnecessary and unacceptable. Also, as per the University's Code of Conduct, A/Prof Holdsworth must "behave and communicate in a manner that does not offend, degrade or humiliate" and "behave in a professional/appropriate manner as a representative of the University in all our activities both on and off campus."
The Code of Conduct also established, as was not in contest, and accepted by the Tribunal, that "at no time is it acceptable to touch a student." Although that was relevant to the evaluation of whether conduct was of a sexual nature, it was not determinative of that issue. The Tribunal took it into account.
Notwithstanding that she referred expressly to passages where findings with respect to such matters were recorded by the Tribunal, ZZI submitted (107) that the Tribunal had failed to consider that Holdsworth was "in the position of power". As is not in doubt, and the Tribunal recognised, Holdsworth was in a position of power. The Tribunal also recognised that the relationship between ZZI and Holdsworth was not one "between friends of longstanding" (AS 108).
ZZI referred (117) to the decision in Dee v Commissioner of Police, NSW Police & Anor (No 2) [2004] NSWADT 168. As is not in doubt, each evaluative determination of the kind undertaken by the Tribunal turns on its own facts and circumstances. The fact that the conduct summarised in a few lines in the way in which it was in Dee was found to have "sexual overtones" does not assist ZZI's appeal. As is plain from its reasons, the Tribunal did not find that the conduct which it found proved to have been undertaken by Holdsworth could not be of a sexual nature. On the findings of primary fact recorded by it, and applying the relevant objective standard, the Tribunal was not satisfied on the balance of probabilities that it was in the circumstances of ZZI's case.
In opposition to these grounds, Holdsworth and the University substantially reiterated the basis on which ground 1 was resisted, including the Browne v Dunn contention and the assertion that the subject of these complaints was not part of ZZI's case at first instance. We do not need to express a concluded view about those matters as the fate of these challenges is not affected by them.
In her submissions in reply, ZZI substantially reiterated without adding significantly to them the submissions made in support of the grounds.
The Tribunal commenced its consideration of allegations 2 and 3 "the poking and touching allegations" at [177]. After recording the competing versions of events, referring to the evidence of ZZI and Holdsworth, and to the Pinnacle report, the Tribunal recorded its findings, commencing at [189] where it identified, accurately there is no doubt, the issues requiring determination.
Having considered the evidence [190]-[193] the Tribunal recorded [194] that "the internal inconsistencies and differing estimates given by the parties, renders the task of making findings difficult". The Tribunal thus recorded [195] that doing "the best I can on the available material I find it is more likely than not, as A/Prof Holdsworth considered was a possibility, that approximately every second meeting, he occasionally touched [ZZI] on her shoulder, arm, back or hand while working on a computer" such touching "probably" occurring on about 30 occasions. That finding was consistent with a "pattern" of conduct, and relevant to, but not determinative of whether any of Holdsworth's conduct was "of a sexual nature".
The Tribunal further found "on the basis of his own admissions" that Holdsworth "probably touched [ZZI] on the small of her back "waist level" on three occasions" [196]. The Tribunal also recorded its finding [197] that "On several occasions A/Prof Holdsworth touched [ZZI] on her upper back while she was working on a computer in a laboratory to indicate to her to move her chair so he could pass by".
The Tribunal found allegations 2 and 3 were "proven in part" [198] in that the "poking" was "unwelcome" [199] and that a reasonable person would probably have anticipated that ZZI would be offended by the proven conduct in the sense of "causing minor displeasure" [200].
The Tribunal took into account a number of matters in determining whether the conduct was of a sexual nature [201]-[203] before recording the finding at [204] which we have earlier set out. The Tribunal then determined the "touching allegations", finding [205] that ZZI probably considered Holdsworth's proven conduct unwelcome and [206] that the reasonable person would probably have anticipated that ZZI would be offended by the proven conduct "in the sense of it causing her minor displeasure".
The Tribunal then turned to consider whether Holdsworth's conduct was of a sexual nature. The Tribunal considered at [207]-[209] the principles governing the issue, and evidence with respect to it, before recording the finding at [210] which we have set out earlier.
With respect to the "placing hand on back", (Allegation 3), the Tribunal found [2011] that ZZI probably considered Holdsworth's proven conduct unwelcome, and [212] that the reasonable person would probably have anticipated that ZZI would be offended by the proven conduct "in the sense of it causing her minor displeasure". The Tribunal then recorded the finding at [213] which we have set out earlier.
With respect to Allegation 4, "silently entering [ZZI's] office and touching her back", the Tribunal referred to the conflicting evidence [214]-[217] and its finding [218] that it was "more likely than not that A/Prof Holdsworth made" the comments alleged by ZZI and that, accordingly, [220] allegation 4 was "proven in part". The Tribunal found [221] that ZZI "probably" considered Holdsworth's proven conduct unwelcome and [222] that the reasonable person would probably have anticipated that ZZI would be offended by Holdsworth's conduct "in the sense of causing her minor displeasure". The Tribunal recorded [223] that there was "no evidence to suggest that A/Prof Holdsworth placed his hand on [ZZI's] shoulder for any length or [sic] time or that it was accompanied by any words or conduct of [a] sexual nature". For those reasons the Tribunal was not satisfied that the proven conduct could be characterised as conduct of a sexual nature [224].
As with complaint 1, nothing to which ZZI has referred the Appeal Panel persuades us that the Tribunal erred on a question of law. We earlier set out the non-exclusive list of "questions of law" recorded in Prendergast. ZZI fails to establish error with respect to any of the eight questions of law there identified. As we have earlier recorded, and as is the case with most evaluative determinations, there is scope for minds reasonably differing as to the inferences which can be drawn from the findings of primary fact which inform the drawing of those inferences. The reality in this case is that, beyond establishing that there may have been other findings or inferences available to the Tribunal in reliance upon its findings of primary fact, ZZI has not demonstrated that the decision was vitiated by error on any recognised question of law. These grounds fail.

[9]

Ground 5

Ground 5 asserted that the Tribunal erred in finding at [246] that the conduct of Holdsworth in touching ZZI's back (allegation 6) could not be of a sexual nature. In support of this ground ZZI substantially reiterated her complaints with respect to the Tribunal's determination of earlier grounds. Although ZZI would not see it thus, in reality the challenge is to the inferences which the Tribunal drew from findings of primary fact which are either not challenged or have not been successfully challenged.
Not surprisingly, the response of Holdsworth and the University to this ground is substantially in the same terms as to earlier grounds. Holdsworth and the University referred (35) to the findings of the Tribunal at [119]-[112] as to why it did not accept the uncorroborated evidence of Dr Shirvanimoghaddam. We have earlier referred to the passages of the reasons of the Tribunal with respect to identifying the need to "exercise care in accepting Dr Shirvanimoghaddam's uncorroborated evidence".
In her submissions in reply, ZZI substantially reiterated what she had asserted in her primary submissions. ZZI's challenges pursuant to this ground included (129) the Tribunal assertedly taking into account irrelevant factors and failing to take into account relevant factors in determining whether Holdsworth's proven conduct was of a sexual nature.
The Tribunal's consideration of the complaint which it concluded (at [246]) had not been proven on an objective assessment to be conduct of a sexual nature commenced with the identification of the allegations, accurately it is not in doubt, they being that Holdsworth repeatedly touched ZZI's back "in the presence of at least one other student at the university in or about late December 2016 at a Christmas party". The context in which the alleged touching occurred was identified by the Tribunal ([230]). The Tribunal recorded ([231]), uncontroversially, that during the evening a number of people attended, including Holdsworth, Holdsworth's wife, ZZI, ZZI's mother, and Dr Shirvanimoghaddam, who the Tribunal described as ZZI's "then friend".
The Tribunal referred to inconsistencies between ZZI's accounts of Holdsworth's conduct at the party and Holdsworth's response to those allegations. The Tribunal referred ([237]) to the evidence of Dr Shirvanimoghaddam with respect to his observations of Holdsworth's conduct at the party. In making its "findings and conclusions", the Tribunal recorded ([238]) that the claim in the proceedings that Holdsworth had rubbed ZZI's back "towards her buttocks" was inconsistent with the account given by ZZI to Pinnacle and the Anti-Discrimination Board. In determining ZZI's disputed allegations, and consistent with the authorities which the Tribunal had recorded much earlier in its reasons, reliance upon that inconsistency was entirely appropriate. The Tribunal found ([239]) that in the circumstances it described it was "implausible that A/Prof Holdsworth would have frequently rubbed ZZI's back and/or rubbed his hand towards her buttocks". The Tribunal found Dr Shirvanimoghaddam's evidence on that point to be "unreliable" ([240]). The Tribunal found ([241]) that Holdsworth "placed his hand on ZZI's back on a few occasions during the subject event. I do not find that he brushed his hand towards or onto her buttocks" ([241]). Allegation 6 was thus "proven in part" ([242]).
The Tribunal found ([243]) that ZZI probably considered Holdsworth proven conduct unwelcome. The Tribunal further found ([244]) that a reasonable person would probably have anticipated that ZZI would be offended by Holdsworth's proven conduct "in the sense of causing her minor displeasure".
The Tribunal recorded ([245]) with respect to whether the conduct was of a sexual nature that: "Undoubtedly the act of touching another person on the back (or indeed any body part) is capable of being characterised as conduct of a sexual nature, depending on context. The available evidence does not support a finding that during the event A/Prof Holdsworth touched ZZI on the back on more than a few occasions, that the touching was other than momentary, or that his hand wandered. The touching was not accompanied by any words or other conduct of a sexual nature."
The Tribunal was thus not satisfied that ZZI had established that the conduct was of a sexual nature.
As with earlier grounds which we have considered, nothing referred to by ZZI establishes more than the possibility that, on facts which are not in dispute or have not been successfully challenged, the Tribunal may have drawn other inferences with respect to whether the conduct found proven was of a sexual nature. By reference to the recognised grounds upon which a determination of this kind may be successfully challenged, which we have earlier set out, we are not persuaded that the Tribunal erred on a question of law in declining to find that the conduct alleged pursuant to this complaint was of a sexual nature. This ground accordingly fails.

[10]

Ground 6

Ground 6 asserted that the Tribunal "erred in characterising the conduct of A/Prof Holdsworth in proposing to share accommodation with [ZZI] during the study trip in Ireland was not of [sic] sexual nature". This ground relates to the seventh of ZZI's claims.
ZZI recounted (159) the facts which the Tribunal found ([247],[256], [257] of its reasons), none of which was challenged.
ZZI referred to evidence of Holdsworth in cross-examination (161) in which he admitted that ZZI had told him she "doesn't like to share accommodation", a proposition with which Holdsworth agreed. It was further submitted (162-163) that, prior to suggesting to ZZI that they share accommodation in Ireland, Holdsworth was aware of ZZI's email to Professor Andersson-Engels expressing her desire for "an ensuite room or a single room apartment", and financial assistance to secure such accommodation. In cross-examination, Holdsworth denied that he had knowledge of such communication.
ZZI relied (164) on the finding of the Tribunal ([247]) that "after consulting his wife A/Prof Holdsworth concluded that it was inappropriate that he share accommodation with [ZZI]." ZZI submitted (167) that, by virtue of the matters to which she referred the Tribunal "failed to consider that A/Prof Holdsworth's conduct was part of a pattern of sexual behaviours and seeking intimacy with [ZZI]". ZZI submitted (168) that, although Holdsworth's "conduct might not be inherently (from Primary Member's perspective) sexual, it may still be considered of a sexual nature where it forms part of a pattern of sexual behaviour". ZZI relied in that context on passages from the decision in Shields v James & Lipman Pty Limited [2000] FMCA 2.
The Appeal Panel accepts that, the context in which conduct occurs is relevant to determining its nature and that, conduct which forms part of a "pattern" of sexual behaviour, may be so construed even though, in isolation it might not. ZZI reiterated that complaint (169) and, by reference to the Code of Conduct (170) submitted (171) that the Tribunal failed to consider that Holdsworth was in the "position of power" over ZZI in the seven respects there identified, each of which was a reference to findings of fact made by the Tribunal in the terms asserted by ZZI, each of which was consistent with the findings sought by ZZI.
ZZI submitted (172) that: "One immediate impression or meaning that is reasonably capable of being conveyed by A/Prof Holdsworth in sharing an accommodation with [ZZI] is that he, as a male supervisor, sought (sexual) intimacy with [ZZI], was a young female student. Accordingly, A/Prof Holdsworth's conduct held up [ZZI] to possible embarrassment or humiliation of a sexual nature."
ZZI further submitted (173), as the Tribunal found ([266]) that the implication of Holdsworth's comment "My wife would have killed me" was clear, being that "Had he shared accommodation with [ZZI], A/Prof Holdsworth's wife would have suspected that he and [ZZI] were sexually intimate". The Tribunal found "The comment to be of a sexual nature".
ZZI relied (175) on passages in Yelda establishing, as is not in doubt, that, to be of a sexual nature, conduct does not have to be intended to have such connotation, the test being whether it was likely to be, or reasonably capable of being sexual in nature. The Tribunal was submitted to have failed to find that Holdsworth's proposal to share accommodation with ZZI was "reasonably capable of being sexual in nature". As is readily apparent, the issue for determination by the Tribunal was not whether the conduct was reasonably capable of being sexual in nature but whether the Tribunal was objectively satisfied, on the balance of probabilities, that it in fact was sexual in nature.
ZZI referred (176) to s 28A of the SD Act identifying factors to be taken into account when determining whether conduct was of a sexual nature, each of which the Tribunal found in passages in its reasons to which ZZI referred at various places in her written submissions.
Holdsworth and the University's submissions in reply repeated and relied upon submissions made with respect to earlier grounds and submitted (40) that it was "unsurprising" that the Tribunal did not find, or take into account that there was a "pattern of sexual behaviour" or that an "immediate impression" conveyed by Holdsworth's conduct was that he "wanted sexual intimacy with [ZZI]".
It was submitted in that regard, for the reasons previously advanced, that the Tribunal's refusal to find that there had been a pattern of sexual behaviour by Holdsworth was not vitiated by error on a question of law. It was further submitted that ZZI was precluded from raising the matter on appeal.
In her submissions in reply ZZI essentially reiterated her primary submissions and further submitted (66) that the "connotation conveyed by A/Prof Holdsworth's conduct that by proposing to share accommodation with [ZZI], he sought sexual intimacy with [ZZI] is reasonable and is supported by Primary Member's findings". ZZI then referred to the reasons of the Tribunal at [260] which recorded that: "It is unremarkable that a young female student would find the prospect of sharing accommodation with their male supervisor during an overseas study trip, concerning, if for no other reason than how it might appear to others. While the evidence does not support a finding that A/Prof Holdsworth was seeking to share accommodation for an ulterior reason, nonetheless, it demonstrates lack of insight. That is clear from the fact that it was not until his wife said that the arrangement could be seen to be improper that A/Prof Holdsworth decided to abandon the proposal."
The Tribunal's reasons with respect to this recorded ([247]) it having been agreed between the parties that Holdsworth "suggested to [ZZI] that they share accommodation (but not bedrooms) during their study trip to Ireland", that, after "consulting his wife" Holdsworth concluded that it was "inappropriate that he share accommodation with [ZZI]". It was agreed, and has never been controversial, that Holdsworth and ZZI stayed in separate accommodation during their study trip to Ireland.
The Tribunal referred ([248]-[249]) to ZZI's complaints with respect to the accommodation proposal and recorded ([250]) that ZZI's complaint to the Anti-Discrimination Board and that recorded in the Pinnacle report were "consistent" with her earlier accounts.
The Tribunal referred to ZZI's oral evidence ([251]) and Holdsworth's evidence ([252]). The Tribunal then referred to Holdsworth booking his own accommodation on 28 November 2016 and sending an email to Professor Andersson-Engels on 1 December 2016 asking whether he could "arrange" ZZI's accommodation and contribute to the cost of her airfare.
The Tribunal found ([255]) that "the evidence does not support a finding that A/Prof Holdsworth insisted that [ZZI] share accommodation during their trip to Ireland. Nor does it support a finding that [ZZI] repeatedly objected to the shared accommodation proposal. That is inconsistent with [ZZI's] claim that she raised the separate bathroom requirement as a ruse to avoid confronting A/Prof Holdsworth about the shared accommodation proposal". The Tribunal nevertheless found ([256]) that "the evidence makes plain that A/Prof Holdsworth proposed that they share accommodation and, initially, this was his strong preference". The Tribunal accordingly found ([257]) the allegation "proven in part", that is that Holdsworth "proposed that he and [ZZI] share accommodation for the duration of their stay in Ireland". The Tribunal found such conduct to be unwelcome ([258]) and found ([259]) that the reasonable person would probably have anticipated that ZZI would be offended by Holdsworth's proven conduct in the sense of causing her minor displeasure.
The Tribunal then recorded ([260]) the findings set out above to which ZZI referred in her submissions in reply (66). The Tribunal was not persuaded ([261]) that Holdsworth's "actions in proposing to [ZZI] that they share accommodation while in Ireland could be conduct of a sexual nature".
As the decision in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [77] makes clear, the fact that decision makers "commonly express their reasons sequentially" does not mean "that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider issues of fact before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole" (Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165). The Court of Appeal also accepted that appellate courts or tribunals "should not read passages from the reasons for decision in isolation from others to which they may be related" (Re Maria Politis v Commissioner of Taxation [1988] FCA 739), reasons being read "fairly and as a whole" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; 70 ALJR 568).
As the Court of Appeal reminds us, the reasons of the Tribunal at first instance "ought not to be inspected with a fine tooth comb attuned to identifying error" (Collector of Customs v Pozzolanic Enterprises Pty Limited [1993] FCA 456 (1993) 43 FCR 280).
As is not in doubt having regard to the terms in which ZZI has expressed this ground, for it to succeed the Appeal Panel would have to be satisfied that the Tribunal erred in failing to find that Holdsworth had engaged in a pattern of conduct of a sexual nature. Nothing to which ZZI has referred the Appeal Panel establishes error in that regard on any recognised appellate basis.

[11]

Ground 7

Ground 7 of ZZI's Notice of Appeal provided that the Tribunal erred in finding, at [281] that the balance of her complaint of sexual harassment was not substantiated.
In support of this ground, under the heading "Sex Discrimination Complaint against the University of Newcastle", ZZI set out the basis upon which she asserted that the Tribunal had erred in failing to make the findings sought by her. Holdsworth and the University submitted that the ground lacked merit, for the reasons earlier advanced by them. Other than recording her disagreement with the submissions of Holdsworth and the University, ZZI did not raise any additional matters in her submissions in reply.
Our determination of this ground is significantly reliant upon our rejection of earlier grounds of appeal. Allegation 9, the "Facebook Messenger allegation" was that "In about early-to mid-2017, whilst in Ireland, Associate Professor Holdsworth sent repeated requests for a video call via Facebook Messenger while each of Associate Professor Holdsworth and [ZZI] were alone in their respective rooms, despite [ZZI] ignoring his requests". The Tribunal recorded [270] ZZI's concession that the evidence revealed "that only one of the calls was made by video by Facebook Messenger".
The Tribunal referred [271] to ZZI's affidavit evidence of 15 February 2017 and [272] to mistakes and inconsistencies emerging from ZZI's evidence at the hearing. The Tribunal found [274] that the evidence did not support a finding that ZZI and Holdsworth "were alone in their respective rooms" when Holdsworth made either the phone or video call. The Tribunal further recorded that the evidence did not support a finding that ZZI told Holdsworth "that she did not feel comfortable taking a video call from him". Nothing to which ZZI has referred establishes, on any recognised basis, that the Tribunal erred in not finding allegation 9 proven. The matters to which the Tribunal specifically referred in this context, and the matters to which it had earlier referred with respect to the reliability of ZZI's evidence generally amply supported its finding.
Allegation 10 raised by ZZI was that "In about May 2017, when [ZZI] disagreed with his instructions in the laboratory in Ireland on the University's premises, Associate Professor Holdsworth raised his finger at [ZZI] and said words to the effect of "Say Yes, John"". The Tribunal found the claim to be "unsupported and denied" by Holdsworth and "not proven" [276]. Nothing to which ZZI has referred the Appeal Panel establishes those findings to have been erroneous. Similar considerations and conclusions apply to allegation 11, the "academic father allegation" which the Tribunal dealt with at [277]-[279]. With respect to ZZI, as with other of her grounds of appeal, properly analysed, they establish no more than ZZI's disagreement with the Tribunal's findings, and fail to demonstrate a recognised basis for appellate intervention with those findings.

[13]

Ground 9

Ground 9 provides (209) that the Tribunal "failed to consider relevant factors when determining the complaint". ZZI referred to her contention at first instance that the Tribunal should find that "in failing to appropriately address Associate Professor Holdsworth's sexual harassment and victimisation, the University discriminated against [ZZI] on the ground of sex".
After a series of criticisms of the University's conduct of its case (211-214), ZZI referred to a number of paragraphs of the Affidavit of Professor Burd of 8 December 2020 (215). ZZI also referred to evidence which was before the Tribunal and the University's codes of conduct.
ZZI referred to the evidence of Ms Failie (222-226). ZZI also referred (227) to a letter from Professor Evans dated 6 September 2018 formally advising her "that she must not enter the physics building". ZZI submitted (228) that "From the above Primary Member failed to consider relevant factor in determining the sex discrimination complaint against the University."
In its submission in response, the University submitted (49) that neither the ground of appeal nor anything asserted by ZZI disclosed any appealable error.
In her submissions in reply, ZZI did not add materially to her primary submissions.
The Tribunal considered the "complaint of sexual discrimination: the University" in detail. The Tribunal identified [298] the basis of ZZI's claim against the University. Although ZZI contends that the Tribunal's evaluation of the complaint was vitiated by legal error, it is not suggested that the Tribunal inaccurately identified or misunderstood the basis of the claim.
The Tribunal recorded [299] that, given its "finding that one allegation of sexual harassment is proved, conduct which occurred on a single occasion, it could be said that the University subjected [ZZI] to persistent harassment, or hostile environment". The Tribunal then recorded that the complaint of sexual harassment was not substantiated. Read in context, we are satisfied that the Tribunal intended, at [299], to say it "could not be said" where the reasons record "could be said". We suggest that because of the reference to "persistent" in that sentence.
The Tribunal's reference to the decision of Lockhart J in Re Susan Hall; Diane Susan Oliver and Karyn Reed v A & A Sheiban Pty Limited; Dr Atallah Sheiban & Human Rights and Equal Opportunity Commission [1989] FCA 72; 20 FCR 217 at [54], in which it was accepted that sexual harassment could be proven in reliance upon conduct which occurred on a single occasion, confirms that, whatever it intended to convey at [299], the Tribunal did not reject ZZI's claim on the basis that it had only found one instance of sexual harassment, by Holdsworth, proved. It is to be remembered that ZZI's complaint of "sex discrimination" was against the University.
Nothing to which ZZI has referred establishes that the Tribunal failed to take the evidence to which ZZI referred into consideration. Nor, if it did not, how doing so would, or should, have led it to make the findings for which ZZI contends has been demonstrated. As the authorities to which we have earlier recorded make clear, the Tribunal was not required to restate findings which it had earlier recorded when dealing with particular grounds. Nothing to which ZZI has referred demonstrates appealable error pursuant to this ground.

[15]

Ground 11

Ground 11 asserted that "NCAT erred in finding that the complain [sic] of sex discrimination as against the University is not substantiated." ZZI submitted (231) that the Tribunal "ought to have found that by failing to prevent the harassment of the applicant and on that basis [sic] had subjected her to a detriment within the meaning of s31A(ii)(b) of the AD Act for seven identified reasons". With respect to ZZI, given that it did not find ZZI's allegations proven, the University's asserted failure to "respond to those concerns", or to "explain what steps it took to prevent sexual harassment and detriments" cannot advance this ground. To the extent that the University failed to provide evidence before the Tribunal, that clearly enhanced ZZI's prospects of success, but did not render success inevitable. In reality the only matter identified by ZZI which could advance the present ground is identified in (231(e) and (f)), the finding of sexual harassment against Holdsworth.
ZZI submitted, in reliance upon the decision in Ferreira & Anor v Wollongong Spanish Club Pty Limited & Anor [2005] NSWADT 57 that, if the University failed to prevent the sexual harassment of ZZI it had discriminated against her on the ground of sex. In circumstances where only one of ZZI's numerous allegations of sexual harassment by Holdsworth was found to have been proved, it is difficult to see how the premise for this challenge is established, and nothing asserted by ZZI does so.
ZZI further submitted (235) that she was "subject to repeated unwelcome conduct of a sexual nature" by Holdsworth between August 2015 and November 2017. In view of our findings with respect to earlier grounds of appeal agitated by ZZI, we cannot accept that this ground could be advanced on that basis.
ZZI submitted (239) that the Appeal Panel could "infer that the University failed at all times to prevent the harassment of the Applicant", and that was "sufficient to amount to sex discrimination by the University". It is not for the Appeal Panel to draw such inferences. It is for ZZI to establish appealable error. With respect to her, ZZI is erroneously inverting the matter requiring determination. It was for her to establish on the balance of probabilities that she had been subject to discrimination by the University. Nothing to which ZZI has referred establishes error on any basis recognised by the authorities.
After citing "relevant legislations" [sic] ZZI referred to a number of passages in the Judgment of the Tribunal, none of which in our view could advance the present ground. ZZI particularised the alleged conduct of Holdsworth between February 2016 and the date of her claim (247). ZZI then identified the Tribunal's findings with respect to those complaints, without suggesting in what way it was asserted that the Tribunal had erred.
This ground lacks merit.

[16]

Ground 12

Ground 12 asserted that the Tribunal erred "in finding, at [380] that the complaint of victimisation made against A/Prof Holdsworth is not substantiated". ZZI referred to the findings of the Tribunal at [312]-[313] which recorded: "312 Undoubtedly, by his decision to withdraw his supervision of [ZZI's] candidacy, A/Prof Holdsworth subjected [ZZI] to a detriment. Without notice [ZZI] was left without a principal supervisor. Given her highly specialised field of study, there was a risk that [ZZI] would be unable to find a replacement supervisor in Australia which would jeopardise her scholarship and her ability to complete her PhD. 313 Similarly, by his decision to give [ZZI] a negative assessment in the final 2017 progress report, especially in circumstances where he had not previously raised any concerns with ZZI, A/Prof Holdsworth subjected [ZZI] to a detriment."
ZZI submitted (255) that the Tribunal erred in finding at [329] that, at least by 17 November 2017 A/Prof Holdsworth had informed the University of his decision to cease to act as ZZI's supervisor. Beyond ZZI asserting that error, nothing to which ZZI referred advances that claim. As the Tribunal's reasons recorded, its finding was based on the credit finding which it had earlier detailed, the evidence of witnesses which it accepted, circumstantial evidence and material discrepancies, inconsistencies and contradictions in ZZI's evidence. In none of those respects has the Tribunal been shown to have erred.
ZZI asserted (256) that the Tribunal "failed to consider relevant factors in determining when A/Prof Holdsworth made the decision to cease acting as [ZZI's] supervisor". ZZI referred to a number of matters in support of her contention that it was "very clear" that "at least by 20 November 2017 A/Prof Holdsworth did not notify the University or [ZZI] of his decision to cease to act as [ZZI's] supervisor." ZZI set out a number of matters which she submitted supported that finding.
ZZI referred (258) to "negative feedback" and "negative assessment" of her progress in the 2017 annual progress report, particulars of which were there recorded. ZZI then set out a number of matters with respect to the cessation of Holdsworth's supervision of ZZI's PhD candidacy (258-264). ZZI thus submitted that the Tribunal erred in failing to make a series of findings with respect to sexual harassment by Holdsworth (265) and the reasons for those failures (265-273).
For the reasons summarised at (274), ZZI submitted that "one of the real reasons" that Holdsworth had ceased to act as her supervisor and had provided negative assessment of her progress was that he had been made aware of her "informal complaint, or he suspected that she had or intended to make the complaint". The Tribunal was thus submitted (276) to have erred in finding at [346] that it was not persuaded that "one of the real, genuine or true reasons A/Prof Holdsworth decided to cease to act (as) [ZZI's] supervisor, or to give ZZI a negative assessment, was that ZZI had alleged that she had been sexually harassed, or because he suspected that she had or intended to make that allegation."
ZZI further submitted (282) that the Tribunal erred in finding that it was not satisfied that at any time before 6 December 2017 ZZI had said or indicated to Holdsworth that his conduct was inappropriate, or amounted to sexual harassment or was a contravention of the AD Act, or threatened to report that conduct. ZZI submitted that the Tribunal should not have found that "it follows any act that occurred before that date could not be said to have [sic] to have (been) done on the ground that [ZZI] had alleged that A/Prof Holdsworth's conduct amounted to a contravention of the AD Act" or that Holdsworth suspected that ZZI had or intended to make that allegation.
ZZI then set out further particulars of evidence in support of her contentions with respect to the real reasons why Holdsworth had ceased to supervise her PhD candidacy and given her negative assessments.
ZZI summarised the basis upon which she asserted (315) that the Tribunal ought to have found that Holdsworth "victimised" ZZI in contravention of s 50 of the AD Act.
Holdsworth and the University submitted (65) that, in many respects, ZZI's submissions were accepted by the Tribunal. That contention was sought to be supported by the Tribunal's decision at [376]-[379]. In determining this ground, we will refer to those paragraphs. Holdsworth and the University submitted that ZZI had failed to discharge the onus of proof which she bore in the proceedings and relied upon the statement by the Court of Appeal in Marshall v Prescott [2015] NSWCA 110 at [83] to which the Tribunal referred at [379] of its decision.
In her submissions in reply, ZZI did not materially add to the matters which she raised in her primary submissions.
The Tribunal commenced its consideration of the complaint of victimisation against Holdsworth and the University by referring [302] to the provisions of s 50 of the AD Act. The Tribunal set out [303] the matters which ZZI needed to establish on the balance of probabilities. The Tribunal recorded the meaning which it adopted with respect to the term "detriment" in s 50 of the AD Act. The Tribunal also recorded the meaning of a number of other expressions relevant to its determination.
Although ZZI contends that the Tribunal erred in its application of the principles governing her applications, we do not understand her to suggest, or have established, that the Tribunal misstated any relevant principle or misunderstood or mistook its task. In reality, in this and other grounds, ZZI asserts that the Tribunal should have made the findings sought by her, without establishing that it erred in any recognised way by making the findings which it made.
The Tribunal identified [306]-[308] each of ZZI's complaints. For the reasons which it had earlier recorded, and reiterated, the Tribunal found [307] that any act which occurred before 6 December 2017 "could not be said to have (been) done on the ground that [ZZI] had alleged that A/Prof Holdsworth's conduct amounted to a contravention of the AD Act, or that A/Prof Holdsworth suspected that [ZZI] had, or intended to, make that allegation". The first six of ZZI's allegations in this context thus failed.
This aspect of ZZI's challenge to the Tribunal's decision can be simply disposed of. Nothing to which ZZI has referred the Appeal Panel establishes that the findings of primary fact of the Tribunal with respect to these particular complaints were "wrong" as that term has been defined in the authorities to which we have earlier referred. It may be that other findings of fact were also open, but that is not the test for present purposes. Nor is there any scope for doubting that the Tribunal gave proper, genuine and realistic consideration to the merits of her case (Khan v Minister for Immigration and Ethnic Affairs [1987] 14 ALD 291), or engaged in an active intellectual exercise of their evaluation (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107).
The Tribunal considered the "evidence of causation" in detail [309]-[323]) The Tribunal recorded at [309], accurately there is no doubt, that there was "no direct evidence" that Holdsworth withdrew his supervision of ZZI, gave her a negative assessment in the 2017 progress report or "did any of the things said to amount to victimisation" alleged by ZZI on the basis that ZZI had alleged that he had sexually harassed her or suspected that ZZI had, or intended to make that allegation.
The Tribunal referred to a number of authorities with respect to the evaluation of allegations of that kind in those circumstances [310]. The Tribunal referred to ZZI's allegation [311(b)] that Holdsworth withdrew his supervision of her PhD candidacy in November 2017 without notice to her and (f) in November 2017 submitted a joint progress report which was "unfairly negative, without consent of [ZZI] and without giving her notice, in circumstances where joint progress reports are required to reflect the views of both the student and the supervisor".
The Tribunal found [312] that "By his decision to withdraw his supervision of [ZZI's] candidacy, A/Prof Holdsworth subjected [ZZI] to a detriment" which it detailed. Similarly [313], the Tribunal recorded that, by his decision to give ZZI a negative assessment in the final 2017 progress report "especially in circumstances where he had not previously raised any concern with [ZZI], A/Prof Holdsworth subjected [ZZI] to a detriment". The Tribunal identified the critical issue to be decided as [314] "Whether the inference can be drawn that at least one of the real, genuine or true reasons A/Prof Holdsworth subjected [ZZI] to that detriment was that [ZZI] had alleged that he had sexually harassed her, or he suspected that she had, or intended to".
The Tribunal then considered [315]-[316] the basis on which Holdsworth asserted that he had decided to withdraw supervision of ZZI. The Tribunal recorded [317] the basis on which ZZI contended that Holdsworth's asserted reasons "did not withstand scrutiny". The Tribunal recorded the matters to which ZZI referred. We do not accept that any matter now said not to have been taken into consideration by the Tribunal was not identified in those or subsequent paragraphs of the Tribunal's reasons. The Tribunal dealt further [318]-[320] with ZZI's reasons for disputing that Holdsworth's motivation for terminating his supervision of her PhD candidacy was as he alleged.
Holdsworth and the University relied on their claim that the decision to cease acting as supervisor and the negative assessment were both made in November 2017, well before Holdsworth was advised of the formal complaint made by ZZI on 6 December 2017, as recorded at [321].
Holdsworth and the University were recorded as having further submitted [322]-[333] that Holdsworth's claim that the decision to cease acting as ZZI's supervisor was "triggered by the Gloria Jeans meeting" was "plausible and entirely consistent with the account given by Dr Sharafutainova of that meeting", or [323] that there was any evidence to suggest that Holdsworth was aware of ZZI's complaint prior to those actions.
Under the heading "Findings" the Tribunal identified [324] three dates which were "significant in determining whether at least one of the reasons A/Prof Holdsworth decided to cease acting as [ZZI's] supervisor and to provide a negative progress report was that [ZZI] had alleged that he had sexually harassed her, two, the date A/Prof Holdsworth became aware of that allegation and three, the date he decided to ceased to act as [ZZI's] supervisor and the date he submitted the final 2017 progress report".
The Tribunal referred [325] to an email from Holdsworth to Professor Martin on 1 November 2017 which was considered to indicate that at least by that date Holdsworth "had decided, or was close to deciding, to cease to act as [ZZI's] supervisor". As the Tribunal accepted that Holdsworth had not, in his affidavit evidence, "pinpointed" the date he decided to withdraw as ZZI's supervisor.
The Tribunal referred [326] to an email from A/Prof Hogan on 17 November 2017 informing ZZI that he had found three potential supervisors, which was considered by the Tribunal to reveal "that at least by that date [ZZI] was aware of A/Prof Holdsworth's decision", although "the evidence does not reveal precisely when she was informed of that decision."
The Tribunal found that the best evidence was that Holdsworth submitted the undated final 2017 progress report on 20 November 2017 [327].
For the reasons recorded above, the Tribunal was not "persuaded" that ZZI said to Professor Martin on 13 November 2017 that she had been sexually harassed by Holdsworth, or that ZZI made that allegation at the meeting on 20 November 2017, which was attended by Professor Martin, A/Prof Hogan and Holdsworth [328]. The Tribunal relied on that claim not having been mentioned by ZZI in her affidavits prepared by the proceedings and being disputed by Holdsworth and A/Prof Hogan. The Tribunal accordingly found [329] that "at least by 17 November 2017, A/Prof Holdsworth had informed the University of his decision to cease to act as [ZZI's] supervisor".
Nothing to which ZZI has referred the Tribunal establishes that finding to have been erroneous. The evidence upon which the Tribunal relied amply and cogently supported its finding. ZZI has not demonstrated that any primary fact relied upon by the Tribunal in reaching its decision with respect to this issue was wrong on any recognised legal basis. Not insignificantly, the Tribunal's finding did not turn on any preference for Holdsworth's version of events to that of ZZI, but rather on inferences reasonably drawn from the evidence of witnesses whose credibility was not challenged, and documents, the provenance and reliability of which was not challenged.
The Tribunal then referred to the "Gloria Jeans meeting" [330]-[333] and found [334] that it was "more probable than not that the main reason A/Prof Holdsworth decided to cease acting as [ZZI's] supervisor was because of the attacks she made on Dr Sharafutainova at the Gloria Jeans meeting". Nothing to which ZZI has referred the Appeal Panel persuades us that that finding, or the findings of primary fact recorded earlier in connection with the finding, was wrong or otherwise erroneous in law.
Under the heading "The Downgraded Progress Rating" the Tribunal recorded [335] ZZI's contention that the negative assessment given by Holdsworth in the final 2017 progress report "supports the inference being drawn that he did so because she had alleged that he had sexually harassed her". The Tribunal acknowledged that previous progress reports had contained positive assessments of ZZI's work, and further acknowledged that Holdsworth had not raised any concerns with ZZI before submitting the final 2017 report.
The Tribunal recorded ZZI's contention that Holdsworth's claim of being dissatisfied with her failure to work on her thesis in the ten weeks before returning to Australia in October 2017 was "at odds with his actions in approving her taking extended leave from her thesis as evidenced by the travel diaries".
Under the heading "Failure to Progress the Thesis in Iran" the Tribunal referred [336] to the conflicting testimony of ZZI and Holdsworth. The Tribunal found [337] that, for the reasons it recorded, it was "likely" that Holdsworth had "an expectation that [ZZI] would undertake some work during the ten weeks she spent in Iran and was annoyed when he realised that she had not". The Tribunal recorded other matters with respect to the "misunderstanding on [ZZI's] part about A/Prof Holdsworth's expectations of her while she was in Iran" [339].
Under the heading "The Final Assessment", the Tribunal recorded [340] that, prior to completing the final progress report Holdsworth had not informed ZZI that he had any concerns with her work. The Tribunal referred to events in May 2017, finding [342] that it was "more probable than not that in May 2017 A/Prof Holdsworth was annoyed with [ZZI's] response to the computer problem she had encountered with her research project", his evidence with respect to the topic having "the ring of truth". Notwithstanding those matters, the Tribunal recorded [343] that, but for the "inflexion point" which arose at the Gloria Jeans meeting Holdsworth would have, but was no longer "prepared to tolerate" ZZI's lack of progress with her thesis and other shortcomings.
The Tribunal referred [344]) to evidence of ZZI and Holdsworth critical of each other and [345] summarised the competing hypotheses which "might explain A/Prof Holdsworth's actions in giving [ZZI] a negative assessment in the final report". Noting to which we have been referred suggests that the Tribunal there either had regard to irrelevant considerations, or failed to have regard to relevant considerations.
For the reasons which it thus recorded, the Tribunal was "not persuaded that one of the real, genuine or true reasons A/Prof decided to cease to act (as) [ZZI's] supervisor, or to give [ZZI] a negative assessment, was that [ZZI] had alleged that she had been sexually harassed, or because he suspected that she had or intended to make that allegation" [346].
Although we do not understand them to assume significance for the purpose of this complaint, having regard to the way ZZI has formulated her complaints, we record that we have considered the Tribunal's consideration of "the cycling incident" [351]-[353], "the café incident" [354]-[355], the findings with respect to those matters [356]-[359], the asserted failure of Holdsworth to provide ZZI with "a letter of technical expertise, despite her requests that he do so" [360]-[363], the "equipment allegations" [364]-[368], "the volume scanner" allegations [369]-[379].
In its reasons, at [374]-[378], the Tribunal recorded its findings with respect to these issues. The Tribunal recorded [376] a number of critical findings with respect to Holdsworth's attitude to and conduct towards ZZI in late 2017. The Tribunal then referred [377] to complaints which ZZI made to Pinnacle which ZZI had "almost entirely failed to substantiate" before the Tribunal. The Tribunal found [378] that "reasonable inferences" could be drawn that Holdsworth's conduct "constituted victimisation of ZZI and that it constituted self-defence against her". Critically, the Tribunal also found [378] that it was not "possible to determine on the evidence which is the more probable. The choice between them is a matter of conjecture". In those circumstances, ZZI had not discharged her onus of proof [379].
In Marshall v Prescott [2015] NSWCA 110 to which the Tribunal referred [311], the Court of Appeal said, at [83] that "an inference cannot be drawn in the absence of evidence", and, by reference to High Court decisions, accepted that, where direct proof of an allegation is not available, it is enough if the circumstances revealed by the evidence give rise to a "reasonable and definite inference", but "must do more than give rise to conflicting inferences of equal degrees of probability so that he choice between them is a mere matter of conjecture". The High Court made clear that a finding on the balance of probabilities, though falling "short of certainty" was not "to be regarded as a mere conjecture or surmise".
Nothing to which ZZI has referred the Appeal Panel establishes error on a question of law with respect to any of the matters which ZZI has raised in support of this ground.

[17]

Ground 13

Ground 13 asserted that the Tribunal erred in finding, at [430], that the complaint of victimisation made against the University was not substantiated. In support of this ground, ZZI made very extensive written submissions.
With respect to her, ZZI's written submissions reiterate most of the matters raised in support of earlier grounds, with some amplification. Although ZZI repeatedly asserts the findings which she considers that the Tribunal should have made, the submissions do not really engage with the principles which govern her challenges. To read the submissions is to understand why that is so. Rather than attempt to summarise the submissions, most of which we do not need or intend to traverse, it is preferable to set out in their entirety the 53 paragraphs of submissions made by ZZI in support of this ground: 320. The primary member erred in finding (at [430]) that the complaint of victimisation made against the University is not substantiated, in circumstances where the primary member determined all allegations must fail assumed that University had other reasons for its conduct than ZZI's series of complaints she made against A/Prof Holdsworth and University. 321. With regards to Allegations of victimization against the university, the member failed to consider relevant factors and circumstances or misinterpreted the facts in making a determination on the allegations. 322. With regards to Allegations (b) and (h), NCAT failed to take into account that the person who handled the complaint of Sexual Harassment against A/Prof. Holdsworth, was Ms Lisa Fairlie, who was A/Prof. Holdsworth Business partner, with the primary role of providing wellbeing support to A/Prof. Holdsworth. a. As stated in the Decision at [387], Ms Lisa Fairlied decided to engage an external consultant to investigate ZZI's complaint. Therefore, she had the authority to make decision about ZZI's complaint. b. An inference can be drawn here that the complaint was impaired because while Ms Lisa Fairlie was the A/Prof. Holdsworth's Business Partner, she also handled the complaint against him, and was the direct person communicating with ZZI about her complaint. c. Ms Lisa Fairlie, did not inform ZZI, at any time during the investigation nor any time after the investigation, that she was the Business Partner of A/Prof. Holdsworth. Ms Lisa Fairlie stated for the first time in these proceedings in her affidavit dated 8 December 2020, that she was the Business Partner of A/Prof. Holdsworth. d. The University did not provide any evidence as to why the Business Partner of A/Prof. Holdsworth also handled the complaint against him and was in direct contact with the complainant. In particular, Ms Lisa Fairlie asked ZZI to send to her all her complaints and communications with Pinnacle and did not tell ZZI that she is the business partner of A/Prof. Holdsworth. e. The university also did not provide any evidence how it managed Ms Lisa Fairlie's conflict in handling the complaint against A/Prof. Holdsworth, when she was A/Prof. Holdsworth's business partner. f. While Pinnacle Integrity made the investigation, it was the University of Newcastle who prepared the outcome report. g. According to Ms Lisa Fairlie's comment to A/Prof. Holdworth in the meeting dated 6 March 2018, at no time it is acceptable to touch a student. h. In its report, Pinnacle found that A/Prof. Holdsworth has touched ZZI's back, hold her hands, poked her in the arm, rubbed her back, and placed his hand on her back. i. However, the university only categorized one of the touches as inappropriate. j. Based on Ms Lisa Fairlie's comment that at no time is it acceptable to touch a student, University ought to have found the conduct of A/Prof. Holdsworth in touching ZZI's back, arm, and shoulder was inappropriate. 323. A reasonable inference can be made here, that the university engaged A/Prof. Holdswort's Business Partner, Ms Lisa Fairlie, to handle ZZI's complaint against A/Prof. Holdsworth, without notifying ZZI that Ms Fairlie is A/Prof. Holdsworth Business Partner, to impair the investigation process, obtain all ZZI's complaints and documents sent to Pinnacle and counsel A/Prof. Holdsworth before the interview with Pinnacle. 324. A/Prof. Holdsworth stated in cross-examination of the AVO hearing that he was counselled by the university prior to the Pinnacle Investigation (Annexure ZZl-1 ). 325. In these circumstances, ZZI's claims in allegations (b) and (h) are much beyond an "expression of disagreement with the facts found by Pinnacle," which was found by NCAT (Decision at [391 ]). 326. From the above, NCAT erred in finding (Decision at [393]) that the premises on which allegations (b) and (h) rest is not established. 327. NCAT ought to have found that by failing to carry out investigation of the allegation in ZZI's complaint in a balanced and impartial manner, the university subjected ZZI to detriment because she made an allegation of Sexual Harassment against the university staff. 328. Accordingly, NCAT ought to have found that the University victimized ZZI because she made a complaint of sexual harassment against a university staff. 329. With regards to Allegations (a) NCAT failed to take into account relevant factors in finding why the university did not provide the Pinnacle Report to ZZI. a. ZZI many times requested access to the report prepared by Pinnacle Integrity or reasons for findings to prepare her appeal to Decision. b. The University through Lisa Fairlie refused to provide the Pinnacle Integrity report to ZZI until it was obtained under Summons in these proceedings. In this way, the University withdrew the opportunity from ZZI to make a proper appeal to the Decision. c. Also, as stated in the Decision at [382] NCAT found that In March 2018, after being informed by the University of the findings of the Pinnacle investigation, ZZI requested the University to provide her with a copy of the report of that investigation. Since that time she has made repeated requests for that report. d. Also, in the Decision at [383] NCAT found that ZZI did not receive that report until it was produced by the University in answer to a summons issued at ZZI's request in these proceedings. The University did not give A/Prof Holdsworth a copy of the report before it produced it in these proceedings. e. In her affidavit dated 7 December 2020, annexure LF 3, Ms Lisa Fairlie sent an email to Liz Burd on 14 March 2018 to raise her concerns about ZZI's intention to call the Poice and making the complaint to Anti-Discrimination Board. . . .. Myself and the HOS have genuine concerns with regards to the safety and wellbeing of the staff member, John Holdsworth, who was the staff member named in ZZI's allegation. I feel that ZZI will call the Police as she had stated although there are no criminal allegations to answer and I am concerned about the effect on the staff member. She has mentioned that the Anti Discrimination Board has encouraged her to put in a formal complaint to them and she will probably do that and she may also go to the media. Dear Emma I mentioned to you yesterday that the HOS would like ZZI to not be located in the Faculty of Science and that we would address this at a later date. However, the HOS has a duty of case to the staff member and would really like ZZI to move out of the Physics Building with immediate effect. . .. f. Also in her email dated 26 September 2018, Ms Lisa Fairlie summarized the meeting with ZZI in March 2018 (Ms Lisa Fairlie's Affidavit dated 7 December 2020, annexure LF- 2) Once the outcomes of each allegation had been communicated, [ZZI] said that she would be contacting a lawyer to take on the case as she felt that the outcomes were not correct. [ZZI] said she had been in contact with one lawyer who had said he would not represent her. k. Moreover, Prof. Liz Burd in her email date16 March 2018 (ZZI's affidavit dated 26 October 2020, Annexure ZZI-26), said: 2. Involve press - we think this is likely to be something she attempts, and so I think we need to be proactive about agreeing a communication strategy in advance should this happen. I'm waiting the staff member's permission before I act on this. The other issue we need to consider is the management of what I seems to be heading towards a case for vexatious complaints and possibly a case for harassment towards other student/staff. g. A reasonable inference can be made here, that Ms Lisa Fairlie decided not to provide the pinnacle outcome report to ZZI because she was aware of ZZI's intention to make a formal complaint to Ant Discrimination Board or to the Police or is engaging a lawyer. h. It is also reasonable to infer that the university decided not to provide the outcome report to ZZI, to manage what they considered to be a vexatious complaint, as claimed by LZ Burd. i. Ms Lisa Fairlie stopped communicating with ZZI immediately after she was notified of the substantiated allegations against A/Prof Holdsworth. Lisa Fairlie did not provide any reasons for her conduct to justify that her conduct was reasonable and not a detriment to ZZI. 330. Therefore, NCAT erred in finding that (Decision at [384]) The available evidence does not reveal why the University refused ZZI's request. On the balance of probability, and according to the evidence before NCAT, the university did not provide the Pinnacle outcome report (allegation (a)) because it was made aware of ZZI's intention to report it to the Police and make complaint to Anti-discrimination board and that the university was managing what they considered to be a vexatious case. 331. The University did not provide any evidence why it did not provide the report to ZZI. 332. In these circumstances, NCAT ought to have found that it is more probable than not that the University failed to provide ZZI with the investigation report prepared by Pinnacle Integrity (allegation a) because it was aware of ZZI's intention to make a complaint to Anti-Discrimination Board or to Police or engaging a lawyer. 333. NCAT ought to find that by failure to provide ZZI with the report, the University subjected ZZI to detriment, because of her intention to make a complaint, and therefore, victimized her. 334. For the same reasons above, NCAT ought to have found that by issuing ZZI with a Notice of Alleged Misconduct (Allegation (k)), determining that ZZI breached the student conduct rule (Allegation (I)), and failing to uphold her appeal (Allegation (m)), the University subjected ZZI to detriment, because of her intention to make a complaint, and therefore, victimized her. 335. With regard to Allegation (c), (d), (e), NCAT failed to take into account relevant factors and erred in finding that these allegations are not substantiated. Allegation (c): "In about November 2017 to about March 2018, Jeffrey Hogan failed to exercise reasonable efforts to find a suitable alternative supervisor for ZZI. "Allegation (d): "On or about 16 November 2017, Jeffrey Hogan informed ZZI that her PhD candidacy would be terminated unless she was able to secure a new supervisor and new project within about 3 weeks, which was an unreasonable requirement. " Allegation (e): "On or about 24 November 2017, Jeffrey Hogan and/or other responsible employees of the University refused to approve and/or support the extension of ZZI 's scholarship on the basis of exceptional circumstances" 336. In particular, NCAT erred (Decision at [398]) the evidence does not support a finding that, prior to Professor Stanwell's appointment, A/Prof Hogan was aware of ZZI's complaint of sexual harassment. a. Prof. Peter Stanwell was appointed as ZZI's supervisor on February 2018 (Peter Stanwell's Affidavit dated 8 December 2020, Paragraph 7). b. A/Prof. Hogan was interviewed by Pinnacle Integrity about ZZI's complaint of sexual harassment against A/Prof. Holdsworth on 30 January 2018 (Affidavit of ZZI dated 26 October 2020, Annexure ZZI-9, Page 116). Therefore, at least by January 2018 A/Prof. Hogan was aware of ZZI's complaint of sexual harassment. c. Therefore, A/Prof. Hogan was aware of the sexual harassment complaint against A/Prof. Holdsworth sometime before Prof. Stanwell was appointed as ZZI's supervisor. d. Accordingly, NCAT erred in finding that (Decision at [398]) the evidence does not support a finding that, prior to Professor Stanwell's appointment, A/Prof Hogan was aware of ZZI's complaint of sexual harassment. e. Moreover, from 27 November 2017, A/Prof. Hogan did not communicate with ZZI to assist her with finding a new supervisor. f. In his affidavit, A/Prof. Hogan, failed to show any evidence that apart his attempt to contact 3 supervisors (on the advice of Prof. Martin, affidavit paragraph 14) on 16 November 2017 (Decision at [395]), he made any attempt to assist ZZI. All the supervisors whom A/Prof Hogan contacted on 16 November 2017, did not accept to meet with ZZI or take her onboard. g. As noted (Decision at [400]) On 16 November 2017, A/Prof Hogan notified ZZI that if she was unable to find a replacement supervisor within one month, she would be asked to show cause as to why her candidature should not be cancelled, citing the Rules Governing Higher Degrees by Research (the Rules) issued by the University. Section 49 of those Rules authorises the Dean of Graduate Research to terminate candidature where the candidate is no longer able to undertake the agreed research project because "the candidate is unable to be supervised by appropriate supervisors and alternative supervisors cannot be found after reasonable efforts by the relevant officers". The Rules, however, do not stipulate that the alternative supervisor must be found within a month. Also (Decision) at [400], NCAT noted that given that it was the end of the academic year, requiring ZZI to find a replacement supervisor within a month appears to be unreasonable. h. A/Prof. Hogan was present in the meeting on 20 November 2017, between ZZI, A/Prof. Holdsworth, and Prof. Martin, where ZZI (as an informal complaint) raised her concerns about A/Prof. Holdsworth's inappropriate behavior and sexual harassment. i. Also, as the MAPS Co-ordinator, he had access to ZZI's progress reports, and in particular the 2017 Annual report, in which A/Prof. Holdsworth disparaged ZZI and made negative assessment of her progress. j. In the cross examination, A/Prof Hogan conceded that he could suggest Prof Bruce King or Andrew Fleming to ZZI, however, he did not do so. Andrew Fleming was the principal supervisor for Nigel Walter who continued ZZI's research in 2018 after A/Prof Holdsworth refused ZZI's having access to the volume scanner. Based on evidence, A/Prof Hogan took this step for this student. k. According to the Dean of Graduate Research, Prof. Lucy Johnston, The University is obliged to find a supervisor if there is a relationship breakdown between student and supervisor. 337. A reasonable inference could be drawn here the A/Prof. Hogan refused to assist ZZI to find a supervisor or extend ZZI's scholarship knowing that most of the supervisors have concerns about ZZI's scholarship, because he was aware of ZZI's informal complaint about A/Prof. Holdsworth. 338. For the same reasons above, NCAT ought to have found that by failing to assist ZZI to find a supervisor or extending her scholarship, the University subjected ZZI to detriment, because of her intention to make a complaint, and therefore, victimized her. 339. With regard to Allegation (i): "In or about July 2018, the University failed to provide ZZI with equipment that had been purchased to support her research, being a new PC and key." Allegation (p): "Between November 2017 to present, the University has failed to facilitate the provision to ZZI of a statement of technical expertise from A/Prof Holdsworth." With regard to Allegation (g): "In about January 2018, after ZZI raised concerns about her wellbeing and safety on campus, the University failed to provide her with appropriate support." a. In cross examination (Transcript 28 May 2021 ), A/Prof. Holdsworth stated that he refused to give access to the equipment because of the complaint against him. MS R KUMAR (18:15): And in that email, Professor Stanwell asks you for access to ... or to facilitate access to the TracePro software and the associated super computer in the physics department for ZZI, can you see that? PROFESSOR JOHN HOLDSWORTH (18:38): Yes I can see that. MS R KUMAR (18:41): Okay. And this is because prior to this date you weren't permitting her access to those pieces of equipment, correct? PROFESSOR JOHN HOLDSWORTH (18:52): Given the extent and nature of the claims against me, it was entirely inappropriate that I do so. So the short answer is yes. MS R KUMAR (19:07): In the next email in the chain, which appears directly above the one I just asked you about. That's an email from you to Professor Stanwell also dated the 31st of May 2018 with a timestamp 12:46PM, can you see that? PROFESSOR JOHN HOLDSWORTH (19:28): I see that. MS R KUMAR (19:30): Okay. And in that email you say that there has been an irretrievable breakdown between ZZI and her past supervisory team which makes it impossible to accommodate her request, can you see that? PROFESSOR JOHN HOLDSWORTH (19:30): Yes I see that. MS R KUMAR (19:45): Okay. So it was your intention as of this date, to continue to refuse to allow her to access those pieces of equipment. Do you agree with that? PROFESSOR JOHN HOLDSWORTH (19:58): I would say that given the nature of the complaints made against me, it was impossible that I give her access in part ... well, primarily because of her claim of plagiarism against me. MS R KUMAR (24:59): In what sense would you be able to access what she was doing on that. PROFESSOR JOHN HOLDSWORTH (25:05): I'm an administrator on the system. MS R KUMAR (25:07): Could you remove yourself as an administrator on the system? PROFESSOR JOHN HOLDSWORTH (25:17): Hypothetically. .. well, sorry. Yes is the short answer. b. Also, on 31 May 2018, A/Prof Holdsworth had refused Professor Stanwell's request that ZZI be given access to the Alienware PC and the TracePro software citing an "irretrievable breakdown". A/Prof Holdsworth wrote to Peter Stanwell on 31 May 2018, "there has been an irretrievable breakdown between ZZI and her past supervisory team and which makes it impossible to accommodate her request' (Annexure ZZl-8). c. From November 2017 till June 2018, A/Prof. Holdsworth refused to provide ZZI with access to the equipment. In particular, he wrote to Prof. Stanwell on June 8, 2018 (Annexure ZZl-8). Within the next 2-3 weeks we will have replicated the TracePro key and computer. This was underway prior to the request last week but has been accelerated due to the circumstance. It is a $30k undertaking. In support of the sensitivity analysis work, I will. once the new system is here and for a period of 3 months. Provide to Peter's office the Alienware-51 computer. keyboard and mouse and TracePro USB key that the student has used previously. a. The above email shows that A/Prof. Holdsworth did not deliver the new PC to ZZI, but he delivered the old PC to ZZI that she was using previously. b. A/Prof. Holdsworth was one of the admin of the delivered PC, and only after ZZI raised the issue with IT services, he was removed from the admin (Annexure ZZl-9). c. Also, as noted by NCAT (Decision at [369]) In ZZI's annual 2018 progress report, Professor Stanwell wrote the "current supervision team will request access to the volume scanner to run further experiments to finalise this part of ZZI simulation in a timely manner". d. Also as noted by NCAT (Decision at [370]): In mid-2019, Professor Stanwell informed ZZI that he had been advised by Professor Johnston that she would not be able to access the volume scanner because the "settings are too far advanced". e. Also, as noted by NCAT (Decision at [375]): The ultimate decision about the volume scanner appears to have been made by Professor Johnston. While the evidence is unclear about who raised the issue about ZZI's access to the volume scanner with A/Prof Holdsworth and when that issue was raised, it is improbable that he was not consulted at some point. f. The volume scanner was in use by A/Prof. Holdsworth's male student, Mr [YDJ], in 2018, who were continuing the same project as ZZI. g. A/Prof. Holdsworth chose to give access to the volume scanner to this student, but not to ZZI when she requested. h. From the above it is clear that the New PC was never provided to ZZI and her request to have access to the Volume Scanner were always refused by either A/Prof. Holdsworth or Prof. Johnston, since June 2018. i. As explained in paragraphs 289-315 of this submission, It is more probable than not that A/Prof. Holdsworth refused to give access to the equipment, because of ZZI's complaint of sexual harassment against him and he wanted to retaliate. j. For the same reasons, it is more probable than not that Prof. Lucy Johnson, did not provide access to the volume scanner, because she was aware of ZZI's complaint against A/Prof. Holdsworth to Anti Discrimination Board. k. For the same reason, it is more probable than not that A/Prof. Holdsworth did not provide ZZI with the statement of technical expertise and Professor Lucy Johnston refused to direct or facilitate the provision of this letter (Affidavit of ZZI dated 27 October 2020, Annexure -24). Prof. Lucy Johnston sought the technical expertise letter from ZZI's external supervisor, after that A/Prof. Holdsworth refused to provide such a letter. I. Because the volume scanner was not provided to ZZI, she could not complete his project (refer to progress report or emails). Therefore, by not being provided with the necessary equipment for her research, ZZI was subjected to the detriment. m. For the reasons above, NCAT ought to have found that by failing to provide ZZI with the equipment necessary for her research (Allegation (i)), The university subjected ZZI to the detriment, as she was not able to complete her work, therefore, the university victimized her. n. NCAT ought to have found that Allegation (i) is substantiated. 340. With regard to Allegation (f): "From about December 2017, the University restricted ZZI's access to her office, research equipment and other personal equipment stored on the University's premises," and Allegation (o): "Between November 2017 to present, the University has failed to appropriately address ZZI's concerns about her candidacy and program," NCAT erred in finding these allegation are not established. 341. In particular, NCAT failed to consider relevant factor and evidence in determining the allegations. a. ZZI reported her PhD candidacy concerns in her Mid and Annual Progress reports, which includes issues regarding accessing the PC and TracePro Software, Access to the Volume Scanner, Issue with Prof. Stanwell Supervisory. b. Also on several occasions between 2017 and 2020, ZZI requested the university to provide feedback on her progress reports. ZZI received no feedback on her progress reports. c. In her affidavit dated 7 December 2020, annexure LF 3, Ms Lisa Fairlie sent an email to Liz Burd on 14 March 2018 to raise her concerns about ZZI's intention to call the Poice and making the complaint to Anti-Discrimination Board. . . .. Myself and the HOS have genuine concerns with regards to the safety and wellbeing of the staff member, John Holdsworth, who was the staff member named in ZZI's allegation. I feel that ZZI will call the Police as she had stated although there are no criminal allegations to answer and I am concerned about the effect on the staff member. She has mentioned that the Anti-Discrimination Board has encouraged her to put in a formal complaint to them and she will probably do that and she may also go to the media. Dear Emma I mentioned to you yesterday that the HOS would like ZZI to not be located in the Faculty of Science and that we would address this at a later date. However, the HOS has a duty of case to the staff member and would really like ZZI to move out of the Physics Building with immediate effect. . .. d. ZZI was directed to not enter the Physics Building, although she remained the students of the School of Physics from November 2017 till January 2020. e. Accordingly, ZZI was never able to enter the Physics Building and access the volume scanner located at Physics Building, which was detrimental to ZZI and her research work, as she was not able to progress her PhD research work. f. ZZI was never provided with the new PC and the volume scanner for her research (detailed provided in paragraphs 289-315 of this submission.) 342. A reasonable and definite inference could be drawn here that the reason that ZZI was directed not to access the Physics Building, and accordingly any lab facility at the Physics building that were necessary for her research, was that the university was aware of ZZI's intention to make a complaint to Police or Anti-Discrimination Board. 343. Therefore, NCAT erred to find that (Decision at [405]) ZZI has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable and definite inference" could be drawn that one of the reasons for any of the alleged detriments was that ZZI had made complaints about A/Prof Holdsworth and/or the University. 344. NCAT ought to have found that on the balance of probability, the university restricted ZZI's access to her office and research equipment on the university premises, because she intended to make a complaint to Anti-Discrimination Board or Police, and that subjected ZZI to detriment; therefore, the university victimized her in contravention of Section 50 of AD Act. 345. With regard to Allegation (j): "Between about October 2019 and about March 2020, the University failed to properly investigate and address ZZI's allegation that a fellow student of the University, [YDJ] had used ZZI's work without her permission and without acknowledgement of her work." NCAT erred in finding (Decision at [405]) that ZZI has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable and definite inference" could be drawn that one of the reasons for any of the alleged detriments was that ZZI had made complaints about A/Prof Holdsworth and/or the University. 346. ZZI, made a complaint of plagiarism against Student [YDJ], the male student of A/Prof. Holdsworth, after noticing that he used her work in his Project without properly citing ZZI's work. 347. On 25 November 2019, ZZI wrote to Prof. Rosalind Smith, Acting Pro-Vice Chancellor (Research and Innovation), and followed up about the plagiarism complaint she made (Evidence). I have notified UoN in my progress reports since 2018 that one of the students at UoN has used my work in his presentation. I have not yet received any response by the University regarding this matter. I do not want to put my thesis in trouble and therefore I have contacted you to follow up on the matter as per advice by DGR. 348. On 25 November 2019, Prof. Smith replied that I am no longer Acting PVC Research and Innovation - Professor Frances Kay-Lambkin is now in the role. I've cced her in above so that she can follow up in this matter (Evidence). 349. On 2 December 2019, PVC-Research asked for further information re the allegation of research misconduct, and ZZI responded on the same date. On 11 December 2019, ZZI followed up on the progress of her complaint. 350. On 16 December 2019, Prof. Lambkin wrote to ZZI that "The appropriate contact for the resolution of this matter is Associate Professor Kylie Shaw, Acting Dean of Graduate Research, Office of Graduate Research who will review the matter as per the Student Conduct Rule. I will forward your letter onto Associate Professor Shaw for onward management." 351. It was not until 5 March 2020, that Prof. Kylie Shaw, sent the decision regarding the plagiarism allegation. Prof. Shaw dismissed the complaint without providing any reason. 352. ZZI appealed the decision to Deputy Vice Chancellor, on 5 June 2020. 353. On 16 June 2020, The vice-chancellor wrote to ZZI that "Because the Dean of Graduate Research dismissed your complaint under 37(c)(i) this means that the decision cannot be appealed. Because the Dean of Graduate Research dismissed your complaint under 37(c)(i) this means that the decision cannot be appealed." 354. The University failed to provide any reason as to why the plagiarism complaint against A/Prof. Holdsworth's student was dismissed. 355. Prof. Kylie Shaw did not provide any evidence of assessment report. 356. Prof. Kylie Shaw and the Vice-Chancellor were at all time aware of the complaint of sexual harassment against A/Prof. Holdsworth, when they were making decision on ZZI's plagiarism complaint. 357. A reasonable inference could be drawn here that the university dismissed ZZI's complaint, because of her complaint against A/Prof. Holdsworth, since otherwise, ZZI's complaint of victimization against A/Prof. Holdsworth to Anti-Discrimination Board would become stronger. 358. Therefore, on the balance of probability, the university dismissed ZZI's plagiarism complaint against A/Prof. Holdsworth's student, because ZZI made a complaint of sexual harassment and victimization against A/Prof. Holdsworth, and by doing so, the university subjected ZZI to potential detriment. Accordingly, the university victimized ZZI in contravention of Section 50 of AD Act. 359. With regard to Allegation (q): "Between March 2018 and May 2019, the University's employees have made disparaging remarks about ZZI." NCAT failed to take into account relevant factors and evidence in determining the allegation. 360. NCAT erred in finding (Decision at [405]) ZZI has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable and definite inference" could be drawn that one of the reasons for any of the alleged detriments was that ZZI had made complaints about A/Prof Holdsworth and/or the University. 361. NCAT failed to take into account relevant factors and evidence in determining this allegation. 362. In her affidavit dated 7 December 2020, annexure LF 3, Ms Lisa Fairlie sent an email to Liz Burd and another employee on 14 March 2018 to raise her concerns about ZZI's intention to call the Poice and making the complaint to Anti-Discrimination Board . . . .. Myself and the HOS have genuine concerns with regards to the safety and wellbeing of the staff member, John Holdsworth, who was the staff member named in ZZI's allegation. I feel that ZZI will call the Police as she had stated although there are no criminal allegations to answer and I am concerned about the effect on the staff member. She has mentioned that the Anti-Discrimination Board has encouraged her to put in a formal complaint to them and she will probably do that and she may also go to the media. Dear Emma I mentioned to you yesterday that the HOS would like ZZI to not be located in the Faculty of Science and that we would address this at a later date. However, the HOS has a duty of care to the staff member and would really like ZZI to move out of the Physics Building with immediate effect . .. . 363. Also, Prof. Liz Burd, in her affidavit dated 7 December 2020, confirmed that the university appointed a single point of contact for ZZI because of her complaints. ZZI was directed to send all her enquiries, including her candidacy concerns to the single point of contact. This subjected ZZI to detriment, as the university staff were advised to direct all ZZI's enquires to the single point of contact. 364. Moreover, Prof. Liz Burd in her email dated 16 March 2018 (ZZI's Affidavit dated 26 October 2020, Annexure ZZI-26) to 7 other employees, said: 2. Involve press - we think this is likely to be something she attempts, and so I think we need to be proactive about agreeing a communication strategy in advance should this happen. I'm waiting the staff member's permission before I act on this. The other issue we need to consider is the management of what I seems to be heading towards a case for vexatious complaints and possibly a case for harassment towards other student/staff. 365. Also, on 21 March 2018, Michelle Jarvie sent an email to ZZI referring her to the consequences of vexatious complaints. 366. Also, on 14 May 2019, Shirley Savy, and employee of the University, emailed another employee of the University, and referred to ZZI as a "Student that had issues along her candidature" and "has caused complications" and that her supervisor was doing a "rescue job". 367. From Ms Lisa Fairlie's email, it is apparent that the university staff has had concerns about ZZI's intention to make further (external) complaints; therefore, decided to restrict her access to the Physics Building, due to their "duty of care" for A/Prof. Holdsworth. 368. Also, the HOS's decision to have ZZI move out of Physics Building with immediate effect was a disparaging comment between staffs about ZZI. 369. Moreover, from the content of the emails mentioned above, it is clear that the staff at the university referred to ZZI as someone who are making "vexatious complaints" or causing complications". All these comments about ZZI are disparaging to her, and made due to the fact that ZZI made a complaint against a university staff. 370. A reasonable and definite inference could be drawn here that university staff, named above, making disparaging remarks about ZZI by naming her "someone who is making or is probably making vexatious complaints," or "someone who is causing difficulties", because she has made complain against A/Prof. Holdsworth and the university to the Anti-Discrimination board. 371. There is no doubt that those comments were detrimental to her, as subjectively assessed, ZZI found them to be disparaging. 372. In these circumstances, NCAT ought to find that by making disparaging remarks about ZZI, the university subjected ZZI to detriment, because of her complaint, therefore, victimized her in contravention of Section 50 of AD Act. 373. In the circumstances that a. The University, through its agents and employees, subjected ZZI to the following conduct that supports a victimisation claim: Failing to provide her with a copy of the report prepared by the external organisation engaged to investigate her first formal complaint; Failing to carry out a balanced, impartial and procedurally fair investigation of ZZI's first formal complaint; Issuing ZZI with a Notice of Alleged Misconduct and then subsequently determining that she had breached the Student Conduct Rule; Failing to provide or facilitate access to equipment required by ZZI to conduct her research; f. Giving her an unreasonably short period in which to find a new supervisor and new project; g. Failing to provide her with proper assistance to locate a new supervisor; h. Failing to inform her within a reasonable time that equipment she required was no longer available; i. Failing to appropriately respond to her plagiarism complaint; j. Failing to direct or facilitate a statement of ZZI's technical expertise from Associate Professor Holdsworth; Making disparaging remarks about ZZI; and I. Refusing to extend ZZI's scholarship on the basis of exceptional circumstances in August 2019. b. ZZI has suffered detriment as a result of the conduct above, in that she has experienced a great deal of stress, which has then caused her to experience anxiety, panic attacks, adjustment disorder, PTSD and biomechanical back pain. c. ZZI's complaints to Associate Professor Holdsworth, her informal complaint to the University, and her two formal complaints to the University were complaints within the meaning of section 50(1 )(c) of the ADA. d. ZZI's external complaints to the Anti-Discrimination Board were complaints within the meaning of section 50(1 )(a), (c) and (d). ZZI submits the Tribunal should find that the University victimized her in contravention of Section 50 of AD Act and because the University and/or Associate Professor Holdsworth knew or suspected ZZI intended to make those complaints.
The University submitted (69) that it: "should be noted that: (a) first the University called the various decision makers in its case, namely Prof Shaw, Prof Burd, Ms Charge, Ms Failie, A/Prof Hogan and Prof Stanwell; (b) there was and is no challenge below to the credibility of Prof Shaw, Prof Burd, Ms Charge, Ms Failie, A/Prof Hogan and Prof Stanwell; (c) third the motivations of Prof Shaw, Prof Burd, Ms Charge, Ms Failie and A/Prof Hogan were not challenged in cross-examination below; (d) fourth to the extent that Prof Stanwell's motivations were challenged, Prof Stanwell was clear that he did not know about the complaints against A/Prof Holdsworth until his involvement in the proceedings below. There was no evidence which contradicts that position and the Primary Member accepted his evidence (Decision at 428). She was well placed to do so, having seen Prof Stanwell give evidence in person and; (e) finally the Respondent's witnesses gave credible, logical and reasonable evidence for their actions."
The Tribunal was entitled to make findings substantially in the terms that it did. It was thus submitted (70) that in the circumstances identified "the only available finding" for the Tribunal was a finding that the victimisation claim as against the University must fail. As is not in doubt, the University does not have to establish that the findings made by the Tribunal were the only findings which could have been made. ZZI must demonstrate, on some recognised legal basis, that the findings of the Tribunal were erroneous.
The Tribunal recorded [381] the terms of ZZI's claim that the University "victimised [ZZI] because of the series of complaints she made against A/Prof Holdsworth, the informal and formal complaints made to the University, her March 2018 appeal against the finding of the Pinnacle investigation, and her complaint to the Anti-Discrimination Board lodged in 2018". Although ZZI asserts that the Tribunal erred in its findings with respect to the complaint, it is not suggested that it misunderstood the complaint.
The Tribunal referred to ZZI's endeavours to obtain a copy of the findings of the Pinnacle investigation, which the University commissioned prior to March 2018 [382]. The Tribunal recorded [383] the time when ZZI first received the report and circumstances in which she did so, but was unable to make a finding [384] as to why the University refused to make the report available earlier than it did.
The Tribunal then considered [385]-[390] ZZI's allegation (b) that the University failed to carry out an investigation of the allegations in her first formal complaint "in a balanced and impartial manner and in accordance with the rules of natural justice" and (h) that in about May 2018 the University "failed to carry out any, or any proper, investigation of ZZI's internal appeal". The Tribunal considered those allegations together. In our view. doing so involved no legal error.
The Tribunal recorded the evidence before it with respect to these issues [386]-[390]. The Tribunal is not aware of any other evidence relevant to its consideration of the issue to which the Tribunal did not refer. ZZI did not refer to any such evidence, or to evidence which created any impediment to the findings made by the Tribunal. Under the heading "Findings" the Tribunal recorded: "391 The criticisms made by [ZZI] about the Pinnacle investigation are, in effect, an expression of disagreement with the facts found by Pinnacle and forensic decisions made by Pinnacle about the conduct of that investigation. The premise on which allegation (b) rests is not established. 392 The basis for the assertion that the University failed to "carry out any, or any proper, investigation" of [ZZI's] internal complaint is unclear. The evidence suggests otherwise. Professor McMillan gave detailed reasons for her decision. Again, the allegation appears to be an expression of disagreement about the outcome of the appeal."
The Tribunal thus found the "premises" on which allegations (b) and (h) rested were not established [393] and were thus not substantiated [394].
The Tribunal then considered ZZI's allegation (c) that "in about November 2017 to about March 2018, Jeffrey Hogan failed to exercise reasonable efforts to find a suitable alternative supervisor for [ZZI]". The Tribunal recorded the evidence to which it had regard in relation to that issue [396]-[398] and found [399] that without evidence of the "nexus" which it identified the allegation failed.
The Tribunal then considered ZZI's allegation (d) that "on or about 16 November 2017, Jeffrey Hogan informed [ZZI] that her PhD candidacy would be terminated unless she was able to secure a new supervisor and new project within about 3 weeks, which was an unreasonable requirement."
The Tribunal referred to the evidence with respect to that issue [400] and found [401] that "requiring [ZZI] to find a replacement supervisor within a month appears to be unreasonable" but that, for the reasons recorded earlier "the evidence does not support a finding that when A/Prof Hogan informed [ZZI] of that requirement that he was aware of [ZZI's] allegation of sexual harassment. It follows that this allegation must fail". Absent ZZI establishing that the refusal to find that A/Prof Hogan knew of ZZI's allegation of sexual harassment when he informed her of those matters, this challenge must fail. Nothing to which ZZI has referred the Appeal Panel establishes that the finding was vitiated by legal error.
The Tribunal then considered ZZI's allegation (e) that "on or about 24 November 2017, Jeffrey Hogan and/or other responsible employees of the University refused to approve and/or support the extension of [ZZI's] scholarship on the basis of exceptional circumstances".
The Tribunal referred to the evidence in relation to that issue [402]-[403])and found [404] that given its finding that on 24 November 2017 A/Prof Hogan was unaware of ZZI's complaint of sexual harassment the allegation must fail.
The Tribunal dealt with ZZI's allegation (f) that from about December 2017 the University restricted her access to her office, research equipment and other personal equipment stored on University premises, her allegation (g) that in about January 2018 the University failed to provide her with appropriate support after she "raised concerns about her wellbeing and safety on campus" and (j) that between about October 2019 and March 2020 the University failed to properly investigate and address ZZI's allegation that a fellow student of the University, YDJ, "had used [ZZI's] work without her permission and without acknowledgement of her work".
The Tribunal dealt with the three allegations together, and found [405] that although "unrelated, they suffer from the same defect. [ZZI] has not produced direct or indirect evidence, or made any substantial argument, which might assist me to determine on what basis a "reasonable definite inference" could be drawn that one of the reasons for any of the alleged detriments was that ZZI had made complaints about A/Prof Holdsworth and/or the University."
The Tribunal considered, but rejected for the reasons it recorded at [406], ZZI's allegation (i) that "in or about July 2018 the University failed to provide [ZZI] with equipment that had been purchased to support her research, being a new PC and key". Similarly, the Tribunal considered ZZI's allegation (k) that in about March 2020 the University delayed her thesis examination and/or provided for a thesis examination timeframe of 12 weeks whereas the usual timeframe was alleged to have been 8 weeks. For the reasons which the Tribunal recorded [407]-[408]) that complaint was not made out.
Having recorded [408] the history of ZZI being found guilty of misconduct by the University, and recorded the events relating to that occurrence [409]-[416], the Tribunal recorded [417] that ZZI "did not make any submissions to explain the basis for her contention that one of the reasons the University found her guilty of misconduct and dismissed her appeal was that she had made complaints about A/Prof Holdsworth and/or the University. This allegation is not substantiated." Nothing raised by ZZI in her comprehensive written submissions, or orally, provides any legal basis for impugning that finding.
Similar observations apply to ZZI's allegation (o) that, from November 2017 until the date of her complaint the University failed to "appropriately address [ZZI's] concerns about her candidacy and programme" which, for the reasons the Tribunal recorded [418]) was found to have not been established [419].
Similarly, for the reasons which the Tribunal recorded with respect to allegation (h) as against Holdsworth, the "premise" on which ZZI's allegation (p) that between November 2017 to the date of her claim the University had "failed to facilitate the provision to [ZZI] of a statement of technical expertise from A/Prof Holdsworth" was not made out.
The Tribunal considered ZZI's allegation (q) that between March 2018 and May 2019 "the University's employees have made disparaging remarks about [ZZI]". The Tribunal identified ([421]) the persons who made the allegedly "purported disparaging remarks". For the reasons which the Tribunal recorded [422] it did not find ZZI's allegations to have been made out.
The Tribunal then considered ZZI's allegation (r) that in about 2018 the University "unilaterally assigned [ZZI] a co-supervisor, Suzanne Snodgrass, without consultation with or agreement from [ZZI]". The Tribunal recorded the evidence with respect to this allegation [423]-[426] and found [427]-[428])that the allegation was not proven, essentially on the basis that the Tribunal accepted the explanations of A/Prof Stanwell and relied upon the absence of any demonstrated nexus between the appointment and the complaints ZZI made about Holdsworth.
Nothing raised by ZZI, in writing or orally, establishes that any of the findings of the Tribunal challenged by her was vitiated by legal error. Without exception, every matter relied upon by ZZI was considered by the Tribunal in reaching its decision. The fact that ZZI disagrees with the decision of the Tribunal, and the findings of fact on which it was based does not demonstrate appealable error. The Tribunal carefully considered the evidence before it, and the contentions of the parties and provided thorough, logical and comprehensive reasons for each material finding of fact on which its evaluative decision was based.
For the foregoing reasons ZZI has not made out any of her grounds of appeal. It remains to consider whether ZZI's application for leave to adduce further evidence should be allowed.

[19]

ZZI's further evidence application

The further evidence upon which ZZI sought leave to rely included cross-examination of Holdsworth in proceedings brought against him by ZZI in the Local Court at Newcastle seeking an Apprehended Personal Violence Order. The evidence was given on 26 April 2021 and appears as pages ZZI1 to ZZI9 attached to ZZI's written submissions, an email from ZZI to Professor Andersson-Engels dated 16 November 2016, a document headed "Third Evidence by Defendant" apparently filed in the Local Court at Newcastle (dated 24 December 2020) with a series of emails in November 2017 from Holdsworth and MaPS, emails in July 2018 between Holdsworth and other members of the University, emails between ZZI and university staff in 2018, and a University public with respect to "Sexual assault and harassment" and, finally, a statement, together with an email from ZZI to the Respondent apparently dated 1 November 2017.
The Respondents opposed receipt of the further evidence on a variety of grounds, which it identified (72). Holdsworth and the University submitted (75) that: "Generally, fresh evidence must satisfied three conditions: (a) it could not have been obtained with reasonable diligence in the original proceedings; (b) there is a high degree of probability that if admitted there would have been a different result in those proceedings; and (c) the evidence must be credible."
Reliance was placed upon the decisions in Akins v National Australia Bank [1994] 34 NSWLR 155 at [160]; Agripower Barraba Pty Limited v Blomfield [2015] NSWCA 30 and ZND v ZNE [2020] NSWCATAP 34. It was submitted that many of the documents sought to be relied upon predated the hearing at first instance and, correctly, that ZZI had adduced no evidence to explain why those documents either had not been available to her, or could not, with reasonable diligence have been available to her at the hearing before the Tribunal, particularly as many of them were emails to or from ZZI herself. It was thus submitted (76) that, accordingly, the documents "do not get over the first hurdle".
It was further submitted that none of the documents could be said to lead to a high degree of probability that, if admitted, there would have been a different result in the proceedings and, correctly in our view, that nothing written or said by ZZI made clear how, if admitted, the documents strengthened ZZI's claims.
The principles governing the receipt of further evidence in proceedings, other than in proceedings in the Consumer and Commercial Division of the Tribunal, are not in doubt and were reviewed by the Appeal Panel in Ros. In Ros the Appeal Panel said that "Having regard to the guiding principles under s 36 of the NCAT Act, the appeal in this case (which is not by way of a new hearing) is one akin to a rehearing, with the ability to receive further evidence if appropriate" [32].
It is not in doubt that the Appeal Panel may receive further evidence, the question is whether, by reference to recognised principles, ZZI establishes that it should do so.
The Appeal Panel further recorded in Ros [33])that "Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18)". Whether "it is likely the further evidence would have produced a different result of the Tribunal is (also) relevant".
The Appeal Panel also accepted that potential prejudice to the other party upon the receipt of further evidence was relevant in an application to adduce further evidence. We do not understand Holdsworth or the University to suggest that there would be any relevant prejudice if the further evidence were allowed, their contention being that the further evidence was reasonably available and thus should not be received or, more significantly, that, if it was received, the further evidence would not be likely to lead to a different result in the proceedings.
The Appeal Panel accepted in Ros that "Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant (ZNX v ZNY [2020] NSWCATAP 41)".
As this is not an appeal against a decision of the Consumer and Commercial Division, we do not accept that the availability of the further evidence at trial is fatal to its possible reception in the appeal. In determining whether the further evidence should be received, in our view, the critical considerations are the absence of any explanation for the failure to rely upon evidence which was, with one exception, available at the time of the hearing at first instance and if, notwithstanding that, whether, if received, the further evidence would be likely to produce a different result.
Whether the evidence is "credible" is not really significant for present purposes given that it is all documentary, the authenticity of the documents in question not being in doubt. As Holdsworth and the University submitted, in what, if received, the further evidence is asserted to establish appealable error was not suggested by ZZI in her primary submissions.
In her submissions in reply, ZZI set out the basis on which she asserted that the evidence was admissible and that, if admitted, would demonstrate that the Tribunal had erred in one or more of the respects asserted by her grounds of appeal. ZZI identified the passages in the cross-examination of Holdsworth which were submitted to have that effect. The cross-examination of Holdsworth in the Local Court at Newcastle preceded by one month the commencement of the hearing at first instance. Submissions were received by the Tribunal in August 2021. ZZI made no application to reopen her case to tender the transcript of the Local Court cross-examination of Holdsworth. Nor was any application to reopen for that, or any other purpose, made prior to the delivery of the Tribunal's decision on 24 May 2022. Why that is so has not been explained by ZZI.
ZZI referred the Tribunal to cross-examination of Holdsworth (ZZI1 page 84) conceding that he was "counselled", inferentially some time in 2017, prior to ZZI submitting her formal complaint to the University in December 2017. The Appeal Panel has read the transcript of Holdsworth's cross-examination in the Local Court. Nothing to which ZZI has referred the Appeal Panel, or we have found for ourselves in the transcript, establishes, by reference to the criteria emerging from the authorities to which we have referred that, if received, the transcript of Holdsworth's cross-examination in the Local Court proceedings would be likely to produce a different result.
Nothing emerging from Annexure ZZI2, which predated the hearing at first instance by four and a half years, and which appears to have been referred to during the hearing at first instance, and in the Tribunal's reasons would, if received in evidence in the appeal, be likely to produce a different result in the appeal.
Holdsworth's statement filed in the Local Court at Newcastle on 24 December 2020, six months prior to the commencement of the hearing at first instance (Annexure ZZI3), contains a number of highlighted passages. Nothing there admitted is inconsistent with or demonstrates legal error in relation to any finding of fact recorded by the Tribunal, or inference drawn, in its decision. What is perhaps more significant for present purposes is the extent to which passages not highlighted outnumber those which ZZI considered warranted highlighting.
The emails with respect to meetings and requests in November 2017 (ExZZI4) were all either referred to, or their substance referred to, in the decision of the Tribunal at first instance. Receiving those documents into evidence would not be likely to produce a different outcome. Similar observations apply to the pages of emails found at ExZZI8. Codes of Conduct, memoranda of understanding and other University documents were extensively before the Tribunal at first instance. The Appeal Panel does not accept that receipt of any of these documents would be likely to produce a different result in ZZI's appeal. Similar observations apply to the bundle of emails in May 2018. It is unclear what the last document in the bundle is suggested to establish, if anything, although it appears to replicate an email issued in November 2017 which was before, and considered by, the Tribunal at first instance.
We do not accept that, if received, the further evidence would be likely to produce a different result in the appeal.
ZZI's appeal will be dismissed and her application for leave to adduce further evidence refused. To the extent that leave to appeal might be required, leave is refused.

[20]

The appeal by Holdsworth and the University

In their outline of submissions (33-37) Holdsworth and the University sought an extension of time to file their Notice of Appeal. ZZI opposed that extension of time. In circumstances where neither ZZI nor Holdsworth or the University make out their appeals, extensions of time and leave to appeal are academic. The orders of the Tribunal will provide that each appeal is dismissed, that, to the extent that leave to appeal is required, leave is refused, and that, to the extent that an extension of time to appeal and/or seek leave to appeal is required, such extension is refused.
Holdsworth and the University challenged the decision of the Tribunal finding allegation 8 made by ZZI of sexual harassment as against Holdsworth to be substantiated on the basis that it was erroneous in law. Their grounds of appeal asserted: "(i) the Tribunal erred in finding (at 266) that the comment, "My wife would have killed me" to be of a sexual nature; (ii) the Tribunal erred in finding (at 265) that a reasonable person would probably have anticipated that [ZZI] would be offended by the comment, "My wife would have killed me" in all the circumstances; (iii) the Tribunal erred in finding (at 268) that the conduct amounted to sexual harassment within s22A(b) in circumstances where the Tribunal found at 265 that a reasonable person would only probably have anticipated that [ZZI] would be offended."
By her Reply ZZI sought that the appeal by Holdsworth and the University be refused.
In their outline of submissions, after setting out the background findings regarding allegation 8, and summarising the Tribunal's findings in that regard, Holdsworth and the University referred to a number of decisions with respect to "conduct of a sexual nature" (15). The Appeal Panel does not understand Holdsworth or the University to contend that the Tribunal failed to identify the correct principles governing the determination of allegation 8. Rather, the challenges go to the Tribunal's evaluative determination of those issues. We do not perceive that the Tribunal failed to identify and apply the legal principles which governed the proceedings. As with ZZI's challenges, the issue is whether Holdsworth and/or the University can successfully impugn the evaluative decision of the Tribunal on a question of law.

[21]

Ground 1

Ground 1 asserted (21) that the Tribunal erred in finding at [266] that the comment by Holdsworth "my wife would have killed me" was of a sexual nature. It was submitted that the Tribunal's reasoning, deduced from Holdsworth's comment that, "had he shared accommodation with [ZZI], A/Prof Holdsworth's wife would have suspected that he and [ZZI] were sexually intimate" was erroneous.
It was submitted (22) that Holdsworth's comments: "reasonably connoted that (a) he held concerns (possible or actual) about his wife's thoughts on the matter of him sharing accommodation with [ZZI]; (b) he considered that his wife would not have approved of him sharing accommodation with [ZZI]; and (c) by implication, at most, his wife would not have approved of him sharing accommodation with [ZZI] because she would have regarded that as inappropriate and/or would have had concerns (reasonable or otherwise, grounded or otherwise) about her husband sharing accommodation with a younger female student."
It was accordingly submitted that by reference to the characterisation set out in Poniatowska v Hickinbotham [2009] FCA 860 that the conduct: 1. "did not involve some conduct of Holdsworth which invited or otherwise explored the prospect of the object of such conduct [ZZI] participating or engaging in some form of sexual behaviour; 2. did not suggest that the object of such conduct [ZZI] may have participated or engaged in some form of sexual behaviour; and 3. did not suggest that the object of such conduct [ZZI] is a person of a character empathetic to participating or engaging in some form of sexual behaviour."
It was accordingly submitted (24) that the Tribunal ought to have found that Holdsworth's conduct was not of a sexual nature.
In her submissions in response, ZZI dealt comprehensively with the submissions of Holdsworth and the University and submitted (39(f)) that Holdsworth's concern "(potential or actual) about sharing accommodation with [ZZI] or his wife's thoughts on the matter of him sharing accommodation with [ZZI]" was not determinative of the nature of the conduct and that it was a matter for the Tribunal to judge as the test was purely objective" and (39(g)) "The subjective thoughts of A/Prof Holdsworth that his wife would not have approved of him sharing accommodation with [ZZI] is not determinative of the nature of the conduct. The test must be purely objective."
In submissions in reply Holdsworth and the University relied (10) on the additional remark by Holdsworth that "it would have been inappropriate" to which the Tribunal referred, but rejected, as not being relevant to its evaluative decision.
It was also submitted (11) that it was not submitted at first instance on behalf of ZZI that "by making the comment (Holdsworth) was conveying or suggesting that the sharing of accommodation with [ZZI] would have interfered with his sexual intimate relationship with his wife"" and that it was "not at all clear how that connotation is said to arise from the comment made". We do not understand the Tribunal to have considered that such a "connotation" did arise, irrespective of whether ZZI raised it at first instance. As the authorities record, the issue required objective consideration. The outcome of that consideration could not have been affected by the likelihood or otherwise of anything said by Holdsworth impacting upon his intimate sexual relationship with his wife, assuming, which we do not understand to have been established, that he had such a relationship.
It was submitted (12) that there has been no suggestion at first instance that Holdsworth's wife "would have killed" him. We do not understand that to have ever been ZZI's case. Nor do we understand that it ever needed to be part of ZZI's case, or that the Tribunal found, or assumed that it was, or in any way based its decision on any such basis. In dealing with ZZI's grounds of appeal, understandably, we were not referred to the passages of the Tribunal's reasons with respect to this issue in detail.
It was not in doubt, and the Tribunal found, that in cross-examination, Holdsworth agreed that while in Ireland, "within earshot of [ZZI]", a "third party" asked whether he was sharing accommodation with [ZZI], and that he had said "laughing in jest that "my wife would have killed me". He said that and immediately then said that to do so would have been "inappropriate"" [262].
The Tribunal found [264] that ZZI probably considered Holdsworth's proven conduct unwelcome and [265] that the reasonable person would probably have anticipated that ZZI would be offended by Holdsworth's proven conduct in the sense that it would cause her embarrassment or minor displeasure. Those findings are not challenged in the appeal by Holdsworth or the University.
The Tribunal recorded.[266] that "The implication of A/Prof Holdsworth's comment "my wife would have killed me" is clear: that had he shared accommodation with [ZZI], A/Prof Holdsworth's wife would have suspected that he and [ZZI] were sexually intimate". The Tribunal accordingly found the comment to be "of a sexual nature", Holdsworth's immediate qualification of the comment by saying it would have been "inappropriate" did not alter the Tribunal's view. We agree that Holdsworth's qualification of the comment would not objectively alter evaluating whether it was of a sexual nature.
The Tribunal referred [267] to the requirements of s 22A(b) of the AD Act requiring "unwelcome conduct of a sexual nature in relation to the other person". The Tribunal recorded that Holdsworth did not initiate the conversation about sharing accommodation and that it was a "one off comment in response to a question asked", but had not been "made in the context of a ribald exchange". The evidence did not persuade the Tribunal that Holdsworth "made that comment with the intention of being heard by or to embarrass [ZZI]" and that Holdsworth's intention was irrelevant, the issue being how a reasonable person would probably have interpreted it.
The Tribunal found that Holdsworth's conduct had been engaged in in relation to ZZI and amounted to sexual harassment within s 22A(b) of the AD Act which was made unlawful by s 23E(i) of the AD Act ([268]).
As the Tribunal found, and the authorities recognise, a single incident can constitute conduct of a sexual nature.
In Vitality Works Australia Pty Limited v Yelda (No 2) [2021] NSWCA 147 Bell P (as Bell CJ then was) and Payne JA at [36] rejected any suggestion that "conduct found to be "horseplay" as being somehow immune from characterisation as "sexual misconduct"". Their Honours further recorded that "A finding of fact that conduct amounts to "horseplay" is irrelevant to the question of whether that conduct should be characterised as "other unwelcome conduct of a sexual nature"".
Their Honours further said, at [97] that the phrase "other unwelcome conduct of a sexual nature" in s 22 of the AD Act was "not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to "other unwelcome conduct of a sexual nature" should not be read down or confined by reference to limits or restrictions which do not appear in the statute." Their Honours further observed, at [100] that "To be clear, "other unwelcome conduct of a sexual nature" includes sexually suggestive "jokes" and comments, including "jokes" and comments containing a double meaning". In our view, it involves no contortion of language or logic to suggest that the statement by Holdsworth which gave rise to the Tribunal finding ZZI's allegation 8 proved was comfortably accommodated within one or more of the descriptions recorded by their Honour in those and their Honours' further observations.
Their Honours approved a statement by Matthews DCJ (as Matthews J then was) in O'Callaghan v Loder [1983] 3 NSWLR 89 that it would be "wrong" for the Tribunal to "attempt an exhaustive list, as human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment", conduct which "can include purely verbal approaches such as sexual propositions, or gender based insults or taunting" being capable of being conduct of a sexual nature.
Not insignificantly for present purposes, their Honours recorded [108] that the fact that the conduct complained of "may also have been capable of conveying meanings of being other than of a sexual nature does not necessarily conclude finding that the conduct was of that character". Their Honours referred [109] to the conduct complained of able to "properly be described as holding up Ms Yelda to sexual ridicule amongst her colleagues". We agree with the thrust of ZZI's submissions that, for Holdsworth to have said what he did must have had sexual connotations vis-à-vis either himself, or ZZI, or both. It is difficult to suggest on what basis, other than the suspicion to which the Tribunal referred, that Holdsworth would have made that statement, even in jest, and we do not understand Holdsworth to have ever suggested any basis upon which he did.
McCallum J, as McCallum CJ of the ACT then was, agreed with the observations of Bell P and Payne JA and added at [125] that "inuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome". Her Honour added that "In the nature of things, sexual implication is perhaps the most powerful of all" implications and observed that "The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term "conduct of a sexual nature" in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters".
As the ground of appeal, and the agitation of it make clear, this challenge falls within a very narrow compass. Nothing to which we have been referred establishes that the Tribunal erred on any basis. As with many evaluative decisions, minds will reasonably differ on the same set of primary facts. We need not speculate about that, it being sufficient to record that nothing to which we have been referred establishes that the conduct admitted or proved with respect to allegation 8 was not capable of being objectively classified as "of a sexual nature". The passages from decisions of the Court of Appeal to which we have referred provide cogent support for the Tribunal's finding, and the basis of it.
It is not suggested that the Tribunal's decision was vitiated by material errors of primary fact, that the Tribunal failed to have regard to any relevant consideration, had regard to irrelevant considerations, failed to adequately explain the reasons for its decision, or went about its fact finding or evaluative determinations in a manner so orthodox or unreasonable as to invite appellate intervention. The passages from the decision of the Court of Appeal in Vitality Works in our view provide ample support for the Tribunal's finding that Holdsworth's conduct was "of a sexual nature".

[22]

Ground 2

Ground 2 asserted that the Tribunal erred in finding that a reasonable person would "probably have anticipated" that ZZI would be offended by Holdsworth's comment. In support of this ground it was submitted (27) that: "The relevant circumstances of the conduct include the following uncontroversial facts: (a) A/Prof Holdsworth was ZZI's academic supervisor; (b) A/Prof Holdsworth and ZZI were attending the trip together, for study purposes; (c) A/Prof Holdsworth made the remark to a third person which was overheard (unbeknownst to A/Prof Holdsworth) by ZZI; (d) the comment was made in response to a direct question about whether the two were sharing accommodation that is, the subject was brought up by the other person; (e) the subject of the comment was A/Prof Holdsworth's wife, and her (actual or potential) views on the subject matter; and (f) the remark was followed by A/Prof Holdsworth's comment "it would have been inappropriate" which, in context, represented his (rather than his wife's) views on the subject."
It was thus submitted that the Tribunal ought to have found that the reasonable person would not have anticipated that ZZI would be offended by A/Prof Holdsworth's comment in the sense that it would cause her offence, humiliation or intimidation. It would be sufficient for present purposes for Holdsworth and the University to successfully impugn the finding the Tribunal made without having to establish that the Tribunal should have made the finding referred to.
In her submissions in reply, ZZI engaged extensively with Holdsworth and the University's submissions. As ZZI identified (69), the question is whether "a reasonable third party would have anticipated, in all the circumstances, that the person would be offended. The test to determine whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the conduct is an objective assessment. ZZI advanced (70) cogent reasons supporting the Tribunal's finding with respect to this issue.
Nothing to which Holdsworth and the University have referred to persuades us that the finding of the Tribunal was vitiated by error. As with many evaluative judgements, minds may reasonably differ as to the finding or inferences which may be drawn from primary facts which are admitted or established. We are not persuaded that the Tribunal erred in law, relied upon material errors of fact, failed to have regard to relevant considerations, had regard to irrelevant considerations, failed to adequately expose its reasoning process with respect to this issue or went about its fact finding and evaluative determinations in a manner which was unorthodox or unreasonable.
It is difficult to imagine, but unnecessary for us to speculate about how likely it is that if conduct was not of a sexual nature a reasonable third party would not, on an objective basis, conclude that the person the subject of the conduct would be offended by it. Although we do not understand Holdsworth or the University to assert that the Tribunal's addition of the words "and minor displeasure" at [265] derogated from, or indeed had any legal or practical impact upon the finding. To the extent that the Tribunal may have put a "gloss" on the words of the statute, doing so did not in our view vitiate its decision. This ground fails.

[23]

Ground 3

Ground 3 asserted that finding at [268] that Holdsworth's conduct amounted to sexual harassment within the meaning of s 22A(b) of the AD Act was erroneous in circumstances where the Tribunal found at [265] that a reasonable person would only "probably have anticipated" that ZZI would be offended.
It was submitted (30) that the requirement of s 22A of the AD Act was that "a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated". It was thus submitted (31) that, by finding that a reasonable person would "probably have anticipated" that ZZI would be offended, the Tribunal applied the wrong test (one of probabilities and possibilities - in circumstances where the provision, to be enlivened, required the Primary Member to reach a state of satisfaction that a reasonable person would "have anticipated" that ZZI would be offended.
It was further submitted, in the circumstances the Tribunal "ought to have found that the reasonable person would not (actually) have anticipated that ZZI would be offended by A/Prof Holdsworth's conduct."
In her written submissions, ZZI engaged extensively with the contentions of Holdsworth and the University. ZZI cogently submitted (76-79) that, properly understood, the Tribunal recorded a finding on the balance of probabilities which was comfortably accommodated within the statutory provision.
This ground can be swiftly disposed of. We agree with ZZI's contention that the finding, at [265] that the reasonable person would "probably have anticipated" was clearly an expression of finding on the balance of probabilities that the reasonable person would have anticipated that ZZI would be offended. If, as Holdsworth and the University suggest, the Tribunal had made the finding merely at the level of "possibility", it would have been a simple matter for the Tribunal to have said so. Moreover, it is inconceivable that, having made numerous references to the onus of proof in its reasons, the Tribunal would have said "probably" in that context as indicating anything other than that it made its finding on the balance of probabilities.
ZZI had to make out her case on the balance of probabilities. We do not accept that the Tribunal applied the wrong test which was, as Holdsworth and the University submit, one involving probabilities. This challenge fails.

ZZI v Holdsworth & University of Newcastle

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