Z v University of A [2001] NSWADT 110 (18 June 2001)

Last Updated: 17 October 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Z -v- University of A [2001] NSWADT 110 revised - 16/04/2002

PARTIES: APPLICANT

Z

RESPONDENT

University of A

FILE NUMBERS: 001001

HEARING DATES: 26/02/2001

SUBMISSIONS CLOSED: 05/05/2001

DECISION DATE: 18/06/2001

BEFORE: Goode P - Judicial MemberClayton S - MemberMcDonald O - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: The Commissioner for Railways v Small (1938) 38 SR (NSW) 564

National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90

Australian Competition & Consumer Commission v Shell Co of Australia Ltd (1999) FCA 212

Park v Commissioner of Police, NSW Police Service [2000] NSWADTAP 4

Re Westinghouse Electric Corporation Uranium Contract [1979] AC 547

Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555

Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710

Arhill Pty Ltd & Ors v General Terminal Co Pty Ltd & Ors (1990) 23 NSWLR 545

Commonwealth of Australia v Randwick City Council (2000) NSWLEC 171

Finnie v Dalglish [1982] 1 NSWLR 400

Mansour v Grace Bros (1992) EOC 92-467

R v Barton & Ors [1981] 2 NSWLR 414

Aitkins & Ors v Director General of Education (1989) EOC 92-603

APPLICATION: summons - general principles

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

K Grime, solicitor

ORDERS: 1 Each of the 14 summonses be set aside

2 The Applicant is at liberty to have fresh summonses issued in respect of summonses 1, 5 and 7 (in accordance with para. 53)

Reasons for Decision:

Introduction

1 This is an application made by Mr Grime, solicitor for the Respondent, to set aside various summonses to produce documents directed to Ms B, the Respondent's Director of Equal Opportunity, Freedom of Information and Privacy. In all there are 14 summonses. Although strictly the respondent to the application, for convenience Mr Z is referred to throughout this decision as the Applicant.

2 In reaching our decision, we have taken into account the additional submissions made by the Applicant including those made in his letter to the Respondent dated 5 March 2001, and his letter to the Registrar of the Tribunal dated 5 May 2001. We have also taken into account the matters raised by Mr Grime in his letter to the Registrar dated 2 May 2001.

3 Leaving aside the issue of whether the summonses should be set aside on the ground that Ms B does not have personal possession or control of the documents sought (and therefore is unable to produce them), the Respondent submits that the material sought is irrelevant to the issues to be decided by the Tribunal and that the summonses are essentially "fishing" in nature and offensive.

4 The Applicant on the other hand submits that the documents sought are vital to his case and that the summonses do not suffer from any of the defects advanced by Mr Grime.

Background to the Complaint

5 The Applicant lodged a complaint with the Anti-Discrimination Board ("the Board") on 30 December 1997 alleging that between September 1995 and April 1997 the Respondent had unlawfully discriminated against him on the ground that he was presumed to be homosexual. He also alleged that the Respondent had subsequently victimised him and that as a consequence of both the Respondent's discrimination and victimisation, he was awarded a second class honours degree rather than a first class honours degree.

6 We do not propose to discuss in any detail the large number of wide ranging allegations made by the Applicant in his voluminous correspondence to the Board. Although the precise nature of the Applicant's case has yet to be defined, for present purposes we have endeavoured to outline some of the primary allegations (as we currently understand them based on the President's Report and the material filed thus far) in paragraphs 7 - 17.

7 On 30 October 1996, a fellow F student named Ms C allegedly said to the Applicant during a private conversation between them in a corridor in the F Facility that he was "in love" with Dr D (a lecturer in the Faculty) and that "everyone knew" this. In making this comment, it is alleged that Ms C presumed the Applicant was homosexual.

8 It is also alleged that Ms C repeated the comment that the Applicant was in love with Dr D during a discussion with the Applicant (in the presence of witnesses) at the University of New South Wales in late April 1997 and that Ms C said this was known by all members of the Respondent's F Faculty.

9 Based on alleged unfavourable treatment afforded to him by the Respondent, and Dr D, the Applicant alleges that Ms C told Dr D of her belief that the Applicant was in love with him and further, that she also told various staff members.

10 Consequent upon the allegations in paragraph 7, it is alleged that Dr D and other staff members of the F Facility thought the Applicant was homosexual.

11 During an F class taught by Dr D on 6 September, 1995, Dr D allegedly told the class (while discussing the concepts of hetroskedasticity and homoskedasticity) that he hated homosexuals and did not want anyone who was "gay" near him or touching him. Dr D also allegedly asked whether anyone in the class was "gay" and while doing so, looked at the Applicant "on a continual basis" .

12 When the Applicant attempted to obtain tutorial work at the University of New South Wales in 1997, it is alleged that the members of the Respondent's staff who gave "negative" references on his behalf were influenced by their belief that the Applicant was homosexual, thereby precluding the Applicant from obtaining work.

13 During the discussion with Ms C in late April 1997 (referred to in paragraph 7 above), Ms C allegedly attempted to dissuade the Applicant from making a discrimination complaint to the Respondent by telling him that both the Head of the F Faculty, Professor E, and the Dean of the Faculty, Professor G, would suppress the complaint.

14 In August 1998, Ms B allegedly victimised the Applicant by releasing correspondence to a psychiatrist named Dr Leon which the Applicant had written and provided to Ms B in confidence. Ms B allegedly said to the Applicant, inter alia, that he had been given a psychiatric evaluation of "paranoid schizophrenic with delusions of grandeur" and that he had been sexually abusing his own son. She allegedly threatened to reveal these accusations publicly if the Applicant pursued his complaint against the Respondent.

15 Ms B also allegedly told the Applicant that Dr D would make a counter claim of sexual harassment against the Applicant if he pursued his complaint against the Respondent.

16 It is alleged that as a consequence of the Respondent's discrimination and victimisation, the Applicant suffered great loss. Inter alia he:

· was awarded a second class honours degree instead of a first class honours degree

· missed out on scholarship and teaching opportunities

· was alienated by various staff members and students

· was unable to get anyone within the Respondent university to act on his complaints.

17 As the corollary of the above mentioned loss, the Applicant alleges that Ms C obtained a first class honours degree in F, the University Medal for F, a scholarship and admission to the Australian Graduate School of Management (at the University of New South Wales) by unlawful means.

General Principles

18 Based on the comments of Jordan CJ in the leading case of The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 the following general principles have emerged in relation to the production of documents requested through a summons. They are set out in paragraphs 19 - 23.

19 The documents must have some apparent relevance to the issues to be decided in the case. In other words, the summons must have a legitimate forensic purpose : see National Employers Mutual General Association Ltd v. Waind and Hill [1978] 1 NSWLR 372 at 385; Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103; Australian Competition & Consumer Commission v Shell Co of Australia Ltd (1999) FCA 212; Park v. Commissioner of Police, NSW Police Service [2000] NSWADTAP 4.

20 The summons must specify with reasonable particularity the documents which are to be produced. As was said by Lord Denning MR in Re Westinghouse Electric Corporation Uranium Contract [1978] AC 547 at 562:

"The description should be sufficiently specific to enable the person to put his hand on the documents or the file without himself having to make a random search - in short, to know specifically what to look for."

See also National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372.

21 The summons must not require the recipient to undertake a search of an excessively large number of documents. In Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555 at 570 the issue was expressed by Smithers J as one requiring an assessment of the reasonableness of the burden on the recipient. His Honour said:

"Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and provide the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one"

See also Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 928; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 at 719-720; Arhill Pty Ltd & Ors v General Terminal Co Pty Ltd & Ors (1990) 23 NSWLR 545; Commonwealth of Australia v Randwick City Council (2000) NSWLEC 171.

22 The summons must not require the Respondent to make fine judgments regarding the relevance of documents: see Finnie v Dalglish [1982] 1NSWLR 400; Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd 710 at 718.

23 It is not permissible for a party to use a summons for the purpose of "fishing", that is, not to obtain evidence to support his case but to discover whether there is a case at all or to discover the other side's evidence.

24 The Applicant submits that the summonses comply with the general principles enunciated above. He also relies on the decision of the Equal Opportunity Tribunal in Mansour v Grace Bros (1992) EOC 92-467 and the provisions of s. 73 of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act").

25 The Respondent on the other hand, submits that all 14 summonses should be set aside on the ground that they variously offend against some or all of the general principles. It seeks to distinguish the decision of Mansour and submits that s. 73 of the Tribunal Act permits the Tribunal to set the summonses aside.

26 In Mansour, the Equal Opportunity Tribunal declined to set aside parts of a summons to produce documents served on the Respondent by the complainant. In determining whether the documents sought were relevant, the Judicial Member made reference to the case of R v Barton & Ors [1981] 2 NSWLR 414 wherein Cantor J analysed the competing interests involved when a court is called upon to set aside a subpoena served on a stranger to the litigation. His Honour said the following at 419-420:

"The Court will consider the nature of the documents specified and will determine as best it can the issues likely to arise. If it appears an issue may arise in litigation to which the documents may relate then I believe the right of the litigant should prevail over the right of the witness. Unless it appears that an issue may arise to which the documents may relate then the right of the witness will prevail.

It will be noted I do not postulate that the issue must arise in the litigation nor do I postulate that the documents must relate to an issue.

It seems to me on this first step in relation to the subpoenaing of documents from a stranger the Court will consider possible issues. This does not include fanciful issues. The Court should take a realistic attitude. Similarly in considering the type of documents and how they may bear upon an issue in the litigation the Court will act realistically and not require the production of documents which only would have a bearing upon an issue on an unreal, fanciful or speculative basis."

The Judicial Member in Mansour expressed the view that the above remarks applied with equal force to the situation where a summons had been served on a party to the proceedings. It was also observed that cases of unlawful discrimination are often difficult to prove because the primary source material, from which inferences might properly be drawn, is usually in the possession of the Respondent. In this regard, the following remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626 were said by the Judicial Member to be particularly apt:

"It is notoriously difficult to establish the motivation of those who might have subjected persons to discriminatory or potentially discriminatory treatment. One method or mode of proof which might properly be adopted is to rely upon a concatenation of circumstances from which an inference might properly be drawn that the explanation for certain behaviour lies in or is founded upon discriminatory attitudes or outlooks."

27 While it is true that the decision in Mansour took a liberal view of allowing an applicant to have broad access to relevant documents, in citing with approval the passage from R v Barton & Ors, the Judicial Member acknowledged the importance of ensuring that summonses only seek production of documents related to a real issue to be determined (emphasis added). Mr Grime submits that in Mansour the documents sought from the Respondent's various catering departments were apparently relevant to the issue of whether the complainant's dismissal as catering manager was based on his race, whereas in the present case there is no causal link between the material sought and the Applicant's case (as presently defined).

28 The Applicant disagrees with this submission and maintains that the material sought is demonstrably relevant and required for a legitimate forensic purpose.

29 The Applicant also places reliance on s 73 of the Tribunal Act, in particular s 73(5)(b) which requires the Tribunal to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue.

The Summonses

30 The first summons seeks:

"Ms C 's employment record at the University of A for the years 1994, 1995, 1996, 1997 and 1998. The records should include the subjects tutored in each year. The number of hours and pay per subject and all other work performed (ie. research assistant), the hours worked and the pay for that time." (Issued 29 May 2000)

31 The Applicant submits that the issue of whether Ms C was an employee of the Respondent at the relevant time is an essential part of his case. The Respondent disputes this and submits that in any event, the summons is oppressive because it calls for a great number of documents which do not appear to have any bearing on the Applicant's case. The Respondent further submits that the summons amounts to fishing.

32 The Applicant disputes that the summons calls for a great number of documents and submits that it would not be onerous to produce the individual contracts for each subject Ms C taught or for each research assistant position she held.

33 Having given the matter careful consideration, we are of the view that Ms C's employment record with the Respondent is relevant to the issues to be determined by the Tribunal but only to the extent that it is relevant to ascertain when she was employed during the years 1995 - 1997, in what subjects she was employed as a tutor, and for whom she worked as a research assistant. We do not consider that it is of any relevance to ascertain how many hours she worked or what rate of pay she received.

34 The question arises as to whether the summons should be set aside in its present form. We are of the view that it should be set aside: see Finnie v Dalglish (1982) 1 NSWLR 400 at 408. However the Applicant, is at liberty to arrange for a fresh summons to be issued confining production of Ms C's employment history to the following matters:

· The years she was employed from 1995 through to 1997.

· The subjects she taught as a tutor for each of those years.

· For whom she worked as a research assistant for each of those years.

35 During the course of legal argument, Mr Grime drew our attention to the fact that the summons in its present form was directed to Ms B, the Respondent's Director of Equal Opportunity and Freedom of Information and Privacy. In accordance with the provisions of s 138(1) of the Tribunal Act, we consider that any such summonses should be directed to the Vice Chancellor rather than to Ms B.

36 It is convenient to deal with summonses 2 and 6 together since they both seek information about Dr D. Summons number 2 seeks:

"The Application of Dr D for his tenure for the years 1998 - 2000 at the University of A. Included in this application are the documents or transcripts of the referees reports for this tenure." (Issued 29 May 2000)

37 Summons number 6 seeks:

"All the documentation (as outlined in the checklist and format guide for the application for promotion and / or confirmation of continuing appointment) for the application documents for the continuing appointment or continuing appointment on probation, submitted to the University of A by Dr D for his continuing appointment at the University of A." (Issued 13 October 2000)

38 The Respondent submits inter alia that the documents sought are not relevant to any of the real issues in the Applicant's case and that the summonses amount to fishing. The Applicant submits that the documents sought are relevant to Dr D's credit and the nature of Dr D's relationship with the Respondent, in particular Professor E. He further submits that they are relevant to the Respondent's investigation into allegations of plagiarism against Dr D and the alleged protection afforded to him by the University.

39 Mr Grime submits that the results of the Respondent's investigation into allegations of plagiarism against Dr D are a matter of public record and that although some adverse findings were made in relation to matters of a minor nature, it was not considered necessary to institute misconduct proceedings against him. Mr Grime further submits that in any event, the allegations of plagiarism have no relevance whatsoever to the issues before the Tribunal. We agree with this submission.

40 We are not satisfied that the documents sought have any relevance to the issues before the Tribunal. Accordingly, we propose to set aside summonses 2 and 6.

41 Summons number 3 seeks:

"Dr D's permanent record at the University of A including all complaints of misconduct and serious misconduct." (Issued 29 May 2000)

The Respondent submits that the summons is objectionable because it amounts to fishing, calls for irrelevant documents and suffers from a lack of particularity by virtue of its reference to Dr D's "permanent record". The Applicant, on the other hand, submits that the material sought is relevant, particularly to Dr D's credit.

42 We are of the view that the summons as currently worded suffers from a lack of particularity. In any event, the Applicant has not been able to demonstrate how such complaints (if they exist) could have any relevance to the issue of Dr D's credibility. This view is consistent with the Appeal Panel's decision in Park v Commissioner of Police, NSW Police Service [2000] NSWADTAP 4. Accordingly, we propose to set the summons aside.

43 Summons number 4 seeks:

"Letter sent to Dr D in relation to the plagiarism investigation undertaken from the Pro Vice Chancellor, H, which asked Dr D if he denies, admits or partially admits to the allegations of plagiarism. I would also like the letter sent in response to this letter by Dr D. These letters are defined as the procedural requirement in the Universities and Post Compulsory Academic Conditions Award 1995."

The Respondent submits that the summons is objectionable for the same reasons as those expressed in relation to summons number 3. The Applicant submits as he did in respect of summons 3, that the material sought is relevant, particularly to Dr D's credit.

44 As previously stated in paragraph 39 above, we consider that the allegations of plagiarism against Dr D have no relevance to the issues to be determined by the Tribunal. Accordingly, we propose to set the summons aside.

45 Summons number 5 seeks:

"Documents related to disciplinary matters and procedures for handling disciplinary matters (such as serious misconduct and discrimination) for academics and staff at the University of A." (Issued 29 May 2000)

The Respondent submits that the summons is objectionable because it is too wide, is not sufficiently particularised, is not relevant to the issues to be determined by the Tribunal, and amounts to fishing.

46 In our view, the summons as currently worded suffers from a lack of particularity and is too broad. Accordingly we propose to set the summons aside. We assume that the Applicant is seeking the Respondent's Grievance Resolution Procedures (which set out the procedure to be followed in relation to complaints of discrimination) and the Respondent's procedures in relation to alleged breaches of discipline. The Grievance Resolution Procedures (approved by the University Council in December 1995) have already been furnished to the Tribunal and form part of the Registry's file. In respect of the Respondent's procedures in relation to alleged breaches of discipline, the Applicant is at liberty to arrange for a fresh summons to be issued which is confined to these procedures.

47 Summons number 7 seeks:

"All correspondence sent to Ms B from Dr Andrew Leon." (Issued 13 October 2000)

The Respondent submits that the summons is oppressive because it is unlimited in time and seeks correspondence from Dr Leon in relation to other persons or in respect of other issues not related to the Applicant. It further submits that the material sought is not relevant to the issues in the Applicant's case, and amounts to fishing.

48 We consider that provided the summons does not require the production of correspondence relating to persons other than the Applicant, it is not objectionable and is relevant to the Applicant's case. Regrettably the summons in its current form does not make it clear that the summons is confined to correspondence regarding the Applicant only. Accordingly, we propose to set the summons aside. The Applicant is at liberty to arrange for a fresh summons to be issued which is confined to correspondence relating to himself.

49 We propose to deal with summonses 8-14 together. Summonses 8 - 12 seek:

"The names of the internal and external markers for Ms C 's honours thesis. Also include the suggested marks that both the internal and external markers gave for Ms C 's thesis. Also include the date which the internal and external markers reports were received by the Department of F and / or the date received by the F Department Committee which determined Ms C Sin Tan's final honours mark."

50 Summons number 13 seeks:

"Ms C 's application for employment and resume with Network Economics Consulting Group Pty Ltd. Included in these documents are the referees reports (including the names of the referees) or transcripts of those reports for Ms C 's application for her employment with Network Economics Consulting Group Pty Ltd."

51 Summons number 14 seeks:

"A copy of both the internal and external markers report of Ms C 's honours thesis in the Department of F of the University of A. The copies of these reports are to include the names of the markers (both the internal and external), the actual reports on Ms Tan's thesis in full, the numeric mark recommended by each of the markers and the date the report was sent to the F department of the University of A."

52 Mr Grime submits that the material sought is not relevant to any of the real issues in the Applicant's case and further that it is not sought for a legitimate forensic purpose. The Applicant disputes this. We have carefully examined the reasons advanced before us for seeking the material but we are not satisfied that the material has any relevance to the real issues in the Applicant's case.

Conclusion

53 In the event that the Applicant wishes to serve fresh summonses on the Respondent, they should be directed to the Vice Chancellor of the University rather than to Ms B. While we propose to set the 14 summonses aside, we note that the Applicant is at liberty to arrange for fresh summonses to be issued in accordance with the remarks we have made in the paragraphs stated below:

· Summons number 1 (para 34).

· Summons number 5 (para 46)

· Summons number 7 (para 48)

Orders

1. We order that each of the 14 summonses be set aside .

2. The Applicant is at liberty to have fresh summonses issued in respect of summons numbers 1, 5 and 7 (in accordance with para. 53)

Revised 14/10/02 - decision anonomysed