Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009)

Last Updated: 6 February 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Hollows v Macquarie University [2009] NSWADT 23


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
David Hollows

RESPONDENT
Macquarie University



FILE NUMBERS:
081113

HEARING DATES:
17 December 2008

SUBMISSIONS CLOSED:
6 January 2009



DATE OF DECISION:
6 February 2009

BEFORE:
Hennessy N - Magistrate (Deputy President)





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED:
Xu v Sydney West Area Health Service [2006] NSWADT 3
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Denmeade v Kempsey Shire Council & Ors (No.2) [2003] NSWADT 225

TEXTS CITED:


APPLICATION:
Application for leave

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
N Heinecke, solicitor


ORDERS:
Leave is refused for the applicant’s complaints of race and disability discrimination against the respondent to be the subject of proceedings in the Tribunal.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 Mr Hollows is an Australian citizen of Iranian national origin. He has anglicised his name to avoid discrimination. He says that he is of the Baha’i faith and arrived in Australia as refugee. He has diabetes and states that it had been controlled by medication until recently. Mr Hollows says that Macquarie University discriminated against him because of his race, presumed ethno religious background (Muslim) and disability. The President of the Anti-Discrimination Board (ADB) declined the complaints as lacking in substance. When that happens, section 96 of the Anti-Discrimination Act 1977 (AD Act) requires the applicant to obtain the Tribunal’s permission before the complaints can proceed.

Background

2 In 2007 Mr Hollows applied to study for a Doctor of Business Administration (DBA) at Macquarie Graduate School of Management, (MGSM). As he did not have a bachelors degree and his masters degrees did not include a research component, the University required him to do a bridging program (MGSM 952). As part of this program he was required to write a supervised research paper and obtain a credit level mark before he would be accepted into the DBA program. Mr Hollows undertook the bridging program and wrote a paper on Customer Relationship Management (CRM). Following a dispute with his supervisor, Dr Segal, Mr Hollows lodged a complaint with the University. As part of the attempted resolution of that complaint, the University arranged for two independent academics to mark the paper without knowing who had written it. The paper was given a pass mark of 60, which was not high enough for him to be permitted to enrol in the DBA.

The complaints

3 Although Mr Hollows mentions many aspects of his relationship with the University with which he is not satisfied, it is clear from his letter to the Anti-Discrimination Board dated 24 June 2008 that he is complaining that his supervisor, Dr Segal, failed to supervise his research paper adequately. That is the complaint that the President of the ADB referred to the Tribunal. Mr Hollows cannot seek to expand or amend his complaint unless leave is granted for him to proceed with the complaint as referred. He also alleged in a later complaint to the President of the ADB that the University had discriminated against him on the ground of disability by telling him that he should abandoned his studies because he is an insulin dependent diabetic.

The evidence

4 The report from the President of the ADB contains numerous emails and memoranda between Mr Hollows and employees of the University and between employees of the University together with both Mr Hollows and the University’s interpretation of that material. I have considered all that evidence plus the most recent material filed by Mr Hollows following an application he made under the Freedom of Information Act 1989.

5 After another person said that he was not able to supervise him, Mr Hollows asked Dr Segal if he could be his supervisor. Mr Hollows said that, "Right from the first contact with Dr Segal I felt something amiss but I could not put my finger on it." He said that having Dr Segal as his supervisor might "mend whatever that my gut feeling was telling me was wrong with this person who appeared someone of importance in the MGSM and the one I have to work with." Later, Mr Hollows said that he asked Dr Segal to be his supervisor to "allay his prejudices against me". He said he now realises that those prejudices are "ingrained as Dr Segal’s superiority complex stem from thinking in terms of Apartheid South Africa."

6 Mr Hollows says that he submitted a draft of the structure of his paper to Dr Segal but that Dr Segal did not respond. On 15 February 2008 a meeting was arranged between Mr Hollows and Dr Segal. During this meeting Mr Hollows said Dr Segal "drew me into a political discussion concerning the situation in my country of origin (Iran) in which he stated, "Israel would bomb Iran on behalf of America." He added that he wanted to dispel Dr Segal’s assumption that he was Muslim and sympathetic to the policies of current rulers in Iran. He mentioned that he was of the Baha’i faith. Dr Segal denies making the comment about Israel being prepared to bomb Iran and says that the only discussions during the period from January 2008 to June 2008 regarding ethnicity and religion were instigated by Mr Hollows.

7 Below are extracts from some of the numerous emails and other documents provided by the parties. I have highlighted some of the more critical passages in italics:

5 March 2008: Dr Segal responds to an email from Mr Hollows seeking clarification as to the goal of the paper as follows:

A literature review with a few guiding questions and argument is the main focus at this stage. When you have had enough time to go through the literature and are ready to speak about constructing the argument or narrative, lets meet to have a discussion.

5 March 2008: Dr Segal emails Mr Hollows:

I would prefer you to be in touch before you have completed your literature review; when you have read sufficiently enough to have a theme or argument that you are grappling with as the centre of your literature review. Perhaps we should meet in two weeks time to review your progress.

18 March 2008: Dr Segal emails Mr Hollows:

. . . Let’s make a time to meet. When would suite (sic) you?

26 March 2008: Dr Segal meets with Mr Hollows (Mr Hollows says session lasted 10 minutes, Dr Segal says it lasted 1 hour)

9 April 2008: Mr Hollows emails Dr Segal:

Have you received the broad plan of my paper? . . I am most anxious to know your views before proceeding to write within the chapters of the paper.

10 April 2008: Dr Segal emails Mr Hollows:

I will be leaving for Melbourne today and will not be available until next week. Please go ahead with your work and I will get back to you next week.

12 May 2008 Mr Hollows emails Dr Segal requesting:

. . . some assurance that my methodology is acceptable. I therefore wish to request again that I get someone with CRM knowledge to look at my methodology . . . My mind is at times muddled because of sugar problem, it may well be that yourself could look at my methodology and see if it is OK.

14 May 2008 12.56: Mr Hollows emails Dr Segal:

Herewith is attached the report to date. I await for your reply.

14 May 2008 10.02 Mr Hollows emails Dr Segal:

Since I emailed you the structure and you went to Melbourne, I have worked on my assignment . . . I am reluctant to send you the material now because I am in the process of more writing and these need to be edited . . . . Your department would not accept me to the course, unless and until the government paid you $6000 in help fee on my behalf and the amount for which I am liable. That means I have paid you $6000 and so far I have received 10 minutes interview with you and 10 minutes with Dr Buttle who even is not with the University any more.

14 May 2008 12.56 Dr Segal emails Mr Hollows:

At our last meeting in March we did agree that the substance of your MGSM 952 research report would be a literature review of a well framed research question and that it would conclude by suggesting a methodology for potential future research but that you would not develop the methodology as part of the main frame of the research paper. As your supervisor I would very much like to see the review of the literature that you are undertaking as we are now approaching the end of the first term of your research report. I have not seen anything substantial from you. I am not sure how you have been processing the literature and it is part of my role to oversee the way in which you have been processing the literature and to give you guidance where necessary. In addition it is part of my role as supervisor to assess what your academic needs are . . . .We have only one more term in which to complete the report as a whole as it needs to be completed by the end of August. It is therefore crucial that I be given the opportunity to assess your work so that we can move towards completion.

I would also point out that on 26th March I did not see you for 10 minutes as you suggest but that I met with you for an hour. It also was not in the context of an interview but in the context of a student supervisor relationship.

14 May 2008 2.36: Mr Hollows emails Dr Segal:

. . I would like to email the much more advanced paper than the one I was compelled to submit before our meeting next week. Is that OK with you?

14 May 15.55: Dr Segal emails Mr Hollows:

It is OK to send the more advanced paper but we may have to change the meeting time as I need to have sufficient time to read through it; so as soon as you send it to me we can arrange a time. I need a week to make sure that I work through it.

14 May 2008 4.35 pm Mr Hollows emails Dr Segal:

Thank you for this arrangement and thankyou for forcing me to submit what I had done. I am a perfectionist and need prompting to stop being fussy. I will send you the paper within the next few days after I have done more work on it.

19 May 2008 10.13 Mr Hollows emails Dr Segal:

I am working hard, in spite of my health, to finish the assignment. I am doing so with the hope of being able to enter DBA mid year. I need to know if this can be achieved provided the assessment of my paper is satisfactory.

19 May 2008 10.47 Mr Hollows emails Dr Segal:

. . I badly need to know if there is any point in me to continue leaving a lot of my life concerns away for a few more days and work day and night as I have been doing for the past few weeks, to finish my assignment I wish to do this if on the acceptance of my assignment and obtaining credit, I could enter DBA this year. If this is not possible, I would like to know . . .

19 May 2008: Dr Segal emails Mr Hollows:

It all depends on the final submission of your paper. In my opinion, given that I have not yet had a look at a draft of your paper, it is unlikely that you will submit the completed MGSM952 before the end of August which is already half way through term 3 and past midyear.

27 May 2008: Mr Hollows emails Dr Segal:

The document I attach here for your kind consideration is complete as far as the contents of it is concerned . . . .

I have been reluctant to say the following because I have felt that it might be interpreted differently than how I mean it. But I might as well say it. I have proved a tough customer to you, and you have shown a great deal of patience and tolerance towards me that I do appreciate. I hope and pray that I have not in any way affected your health. If I did I am sorry. I had a lot of misgivings and misunderstandings earlier.

28 May 2008 16.37 Dr Segal emails Mr Hollows:

Thanks for your email and the draft of your research project. I will need some time to read through it and am also in the process of marking. The earliest I can meet is in the week beginning the 9th of June. Would you be available on Tuesday 10th June at 10.30?

30 May 2008 11.23 Mr Hollows emails Dr Segal:

If you have not yet started reading my paper, would you kindly do so as of next Monday or Tuesday . . I . . will make considerable amendments to it over the weekend and on Monday. .

30 May 2008 12.02 pm: Dr Segal emails Mr Hollows:

I will only read your work, as you request when you send me the next draft early next week.

3 June 2008 2.54 pm: Mr Hollows emails Dr Segal:

You said you would want my paper one week before our meeting. Also I promised to send it today. The previous version of my document sent earlier are only drafts and especially towards the later chapters have in the pages notes that are more reminders to myself and contain colloquial expressions etc. . . this one attached here also is not yet 100% complete, . . Thus this version is okay for your consideration, although not for assessment

3 June 2008 19.29: Dr Segal emails Mr Hollows:

I have begun working on your report, cannot wait until tomorrow. I think what you have given me is good enough for a starting point for me to work on and I will give you my recommendations when we meet next week.

4 June 2008 9.23: Mr Hollows emails Dr Segal:

A lot of material towards the later chapters in the yesterday’s version are more of notes and not fully developed. If you have not reached Chapter 7 and 8 particularly, I request that you kindly consider this latest updated version. I have now referenced all and have almost completed the report.

4 June 2008 11.38 am: Mr Hollows emails Dr Segal:

In reference to your email of 4 June 2008 herewith is attached the draft of the research paper. As can be seen from the document all chapters are completed. You have given me in previous email up to 15th of June to submit it for assessment. Hence I will continue editing the paper. However, these will be minor and fundamentally the paper is complete.

4 June 2008 14.45: Dr Segal emails Mr Hollows:

I have worked through the first two of your chapters and have feedback to give you which may influence your way of writing the research report as a whole and so I think that it is crucial that we meet soon to discuss. I propose 3.30 tomorrow afternoon if you are available.

5 June 2008 at 13.00: Dr Segal emails Mr Hollows:

I need to point out to you that I did not set the 15th June as the date for you to submit your work for assessment. You requested from me both directly and via Professor John Hooper the closing date for final assessment. I replied to you with the dates for both terms 2 (15th June 2008) and terms 3 (7th September 2008). You have chosen, without consulting me, to see 15th of June as the date for assessment.

Today is 5th of June and it is the first time that we will be meeting to review some of your work – 2 chapters. There are substantial sections of these two chapters that will need to be reworked. It is likely that there will be sections of the other chapters that need to be reworked as well as is the case with most research reports. It is not likely that the reworking will be completed by 15th June.

5 June 2008: Meeting with Dr Segal: in which Dr Segal re-iterated that if he wished to commence the DBA in term 3 he would have to submit his paper by 15th June. Mr Hollows alleges that Dr Segal said, "I am sick of you, every time there is a misunderstanding you go to the Dean’s office". Mr Hollows replied, "Dr Segal, here is not Apartheid South Africa, all your attempts at discriminating against me so far has failed and will fail again."

A memorandum from Ms Anne Thoeming who attended the meeting states, in part:

On Thursday 5 June at around lunchtime, I received a call from David Hollows who is a student at Macquarie . . . when David initially applied for DBA enrolments, he made it clear that he felt uncomfortable with Steve as he has a South African background.

When David called on Thursday, he sounded very distressed on the phone and mentioned that he had tried to contact John Hooper (unsuccessfully) in relation to a meeting that had been arranged with Steven Segal at 3 p.m. that afternoon. David indicated that Steven Segal had a racist attitude towards him and that this was affecting progression in his course work unit of enrolment. He mentioned that given Steven's attitude, it was highly likely that he would not be able to complete the unit satisfactorily and that he may as well withdraw. Given his distress, his prior recent contact with John Hooper, his stated goal of enrolling in a DBA and the concern the university has for its duty of care towards students, I offered to attend the meeting with Steven Segal, but only if Steven agreed.

. . .

The meeting went badly from the start . . . David continuously outlined concerns about his personal health, feedback from Steven in relation to unit progression and accused Steven of being racist in his role as unit supervisor. Steven had prepared some feedback to give David regarding the first two chapters of the submitted work and then decided that he was not prepared to provide him with the hard copy of this document, given the accusations that David was making.

The loud conversation developed into a heated argument. After about 30 minutes or so, it was clear we were getting nowhere. David’s shouting and accusations of racism became much louder and Steven shouted back at him. At that point I became sufficiently concerned for my own personal safety and the well-being of all in the room that I stood up and told David that I thought I had a solution and that it was best if we talked about it privately.

I had no such solution, but it broke the meeting up and I escorted David out of MGSM . . . . I eventually got David's agreement to see someone at the counselling service. I took him there and left him with Julie Erskine.

At no stage in my meeting or in any other discussion did Steven Segal make any comments to or about David that I would interpret as being racist.

9 June 2008: email from Prof Roy Green to Mr Hollows that if he wishes to commence the DBA in term 3 his paper must be submitted by 15 June;

18 June 2008: following a complaint by Mr Hollows objecting to the assessment of the paper, Professor Roy Green emails Mr Hollows to tell him that it has been agreed that his paper will be assessed by two independent assessors but that his behaviour at the 5 June 2008 meeting (in which he says he yelled at Dr Segal) was unacceptable. (Mr Hollows denies yelling at Dr Segal and says that he yelled at him.)

Approach to leave applications

5 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under s 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

17 The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

6 In a summary, the relevant principles are:

(a) if the complaint has been declined as lacking in substance the Tribunal may consider all relevant material and ask whether

(i) there is a serious question of fact to be determined

(ii) there is a serious question of credit involved; and/or

(iii) there is a factual issue that is likely to be affected by evidence in the respondent’s possession;

(b) on the material available, the claim lacks merit so that it is not in the public interest to permit it to proceed

(c) the applicant is able to show a substantial reason for leave being granted which generally includes that the applicant has reasonable prospects of success.

Race discrimination provisions

8 In order to substantiate his complaint of disability discrimination, Mr Hollows would have to establish that the University has breached section 17 of the AD Act:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of race:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of race:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

9 Race discrimination is defined in section 7 as follows:

What constitutes discrimination on the ground of race?

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

10 Race is defined in section 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin".

Identification of race

11 Mr Hollows says that he is of Iranian national origin and that although he is a member of the Baha’i faith Mr Segal perceived him to be a Muslim. Religion is not a ground of discrimination nor is it unlawful to treat someone unfavourably because of a perception about his or her religion. Mr Hollows did not identify his ethno-religious origin, if any. For the purpose of this leave application I have assumed that Mr Hollows is alleging that Dr Segal has discriminated against him on the ground of his national origin and his colour (not white).

Identification of detriment

12 Section 17 makes various kinds of conduct unlawful. The conduct which Mr Hollows is alleging is unlawful is a failure by Dr Segal to adequately supervise his paper. Section 17(2)(b) states that it is unlawful to subject a student to a "detriment" on the ground of race. I have assumed that Mr Hollows is alleging that the University has breached that provision. The first question for a Tribunal hearing this matter would be whether, as a question of fact, Dr Segal failed to adequately supervise his paper. There is a factual dispute about how long the meeting in March 2008 lasted. Mr Hollows says 10 minutes, Dr Segal says one hour. Mr Hollows also alleges that Dr Segal was not available at various times because of trips to Hong Kong in early January 2008 and Melbourne for about a week in April 2008. For the purpose of these proceedings I have taken Mr Hollows’ evidence at his highest and assumed that the March meeting lasted only 10 minutes and that Dr Segal was not available to supervise Mr Hollows at the times when he was in Melbourne and Hong Kong. However, even accepting that evidence, given the email correspondence between Mr Hollows and his supervisor, it is likely that a Tribunal would find that Dr Segal made adequate efforts to supervise Mr Hollows in the sense of arranging and attending meetings with him and responding to his numerous questions and comments. Nevertheless the doubt about this factual matter is not a justification for refusing Mr Hollows leave for the complaint to go ahead. If there was a failure to adequately supervise his paper that would constitute a detriment within the meaning of that word in section 17(2)(b).

Elements of discrimination

13 I have also assumed, for the purposes of these proceedings, that Mr Hollows is alleging direct discrimination as defined in section 7(1)(a), rather than indirect discrimination as defined in section 7(1)(b). In order to determine whether Dr Segal’s conduct constitutes direct discrimination on the ground of race the Tribunal must ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the manner in which Dr Segal treated Mr Hollows with the way he would have treated another person of a different race in the same or similar circumstances. Neither the University nor Mr Hollows identified a person in a comparable situation to Mr Hollows and compared how he or she had been supervised with the manner in which Mr Hollows had been supervised. As there was no actual comparator, the comparison must be made with a hypothetical person of a different race: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. If the comparison produces the conclusion that Mr Hollows was treated objectively less favourably than a person of another race, it is then necessary to consider the reasons for that different treatment, that is, causation.

14 Differential treatment. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133). Consequently, we are unable to determine how a hypothetical comparator would have been treated without first deciding the causation question.

15 Causation. In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

16 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended.

Application of race discrimination provisions to Mr Hollows’ complaint

17 Other than a comment attributed to Dr Segal about Israel being prepared to bomb Iran, there is no evidence of Dr Segal making any comment about race whatsoever. Even if that comment was made, it does not suggest that Dr Segal is prejudiced against Iranians. It was Mr Hollows, not Dr Segal, who regularly made comments about race. He described Mr Segal as a South African white Jew "who might have come to Australia after the fall of Apartheid in South Africa". In order to prove that race was one of the reasons for the way Dr Segal treated Mr Hollows, Mr Hollows would have to rely on inferences from proven facts.

18 In support of his assertion that Dr Segal has discriminated against him on the ground of race Mr Hollows says:

Racial hatred and suppression is not easy to prove, but I want the opportunity to present whatever evidence I have in my possession. This is because my interactions with Dr Segal and his harassment and injustice in misleading me deliberately not supervising my work and trying to delay my education and making me incurring (sic) unnecessary costs are not just one or two occasionally (sic) mistreatment. I tried always to attribute his manner, body language, looking down on me, evading my requests . . . in aggregation have made me confident that these cannot be attributed to anything else but rather to an ingrained attitude of hatred towards others for their race and religion.

19 The evidence does not disclose that Dr Segal "harassed" "deliberately mislead" or "looked down" on Mr Hollows. Dr Segal replied promptly and clearly where necessary to Mr Hollows’ numerous emails. He also gave Mr Hollows guidance as to what was expected in his paper. He advised him of his expectations in terms of content and timing without ambiguity. He met with Mr Hollows in February and March and pressed for further meetings despite Mr Hollows’ wish to delay consideration of his paper until he was satisfied with it.

20 Rather than Dr Segal behaving inappropriately, Mr Hollows recognises that he may not have behave appropriately on some occasions. He admitted that he had been a "tough customer" and that Dr Segal had shown him "a great deal of patience and tolerance". He also conceded that he initially had "a lot of misgivings and misunderstandings" about Dr Segal because of his belief that he was a white South African Jew. Those misgivings re-ignited when Mr Hollows was asked to present his paper and meet with Dr Segal in May and June. He was clearly anxious about the meeting because he anticipated that he would be requested to re-work the paper and that he would then miss the 15th June submission date. The evidence shows irrefutably that it was Mr Hollows’ choice to submit his paper by 15th June 2008 rather than at a later date in August. Mr Hollows was, in his own words, "a perfectionist" and was reluctant to provide a copy of the paper until he was satisfied with it. Mr Hollows’ accusations of racism in the 5 June meeting were likely to have been caused by his anxiety about Dr Segal’s response to the first two chapters he had read rather than because Dr Segal had discriminated against him. In my view it is highly unlikely that a Tribunal would find that Dr Segal had engaged in any unfavourable treatment of Mr Hollows, much less that any such treatment was on the ground of his race.

Order

Leave is refused for the applicant’s complaint of race discrimination against the respondent to be the subject of proceedings in the Tribunal.

Disability discrimination provisions

21 In order to substantiate his complaint of disability, Mr Hollows would have to establish that the University has breached section 49L of the AD Act:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability:

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

22 So far as is relevant to these proceedings, disability discrimination is defined in section 49B as follows:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

23 Disability is defined in section 4 of the AD Act. I have assumed for the purposes of these proceedings that being a diabetic comes within the definition of disability in the AD Act. I have also assumed that Mr Hollows is alleging a breach of section 49L(2)(c) that is that he has been subjected to a detriment and that he is alleging direct disability discrimination.

Application of disability discrimination provisions to Mr Hollows’ complaint

24 Mr Hollows’ second complaint was that the Dean of Students, Dr de Meyrick, told him to abandon his desire to undertake the DBA because he is an insulin dependent diabetic. Although he says that this was expressed as an option, Mr Hollows insists that it was suggested to make him go away.

25 The University’s version of events is that:

On 25 June 2008, Dr de Meyrick was telephoned by Michael de Marillac who claimed to be Mr Hollows’ councillor (sic). Mr de Marillac enquired as to whether Mr Hollows should apply for special consideration due to his diabetes. Dr de Meyrick advised that Mr Hollows would need to formally notify the University of any disability in order that it may be taken into account. Mr de Marillac advised that he felt that Mr Hollows was not ready for the stress of a DBA/PhD and needed time to "get to a better place".

The claim that Dr de Meyrick advised Mr Hollows to "abandon his study because of his insulin dependent diabetes" is denied by Dr de Meyrick.

On about 27 June 2008, Mr Hollows met with Dr de Meyrick at which meeting Mr Hollows advised that his doctor had said that "the stress you are under is affecting your diabetes". Mr Hollows advised that he wanted to do the DBA in order that he may either get a job in industry, or an academic job in Australia or back in Iran. Dr de Meyrick suggested that with Mr Hollows MBA and MPA qualifications that he was sufficiently qualified to get a job in industry or academia and that he should consider putting his current studies aside and focusing on seeking employment. Dr de Meyrick suggested to Mr Hollows that by him putting further studies on hold he could concentrate on getting his health in order.

26 The University said that when Mr Hollows enrolled in the course he did not disclose is health status or that he had any special requirements. Mr Hollows referred to the status of his health in various emails and I accept that Dr de Meyrick knew about his disability when he made the comment. However, even if Mr Hollows’ version of the conversation with Dr de Meyrick is accepted, it is unlikely to amount to "a detriment" under section 49L(2)(c). The word "detriment" in that provision has its ordinary meaning of "loss, damage or injury": Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 at [67]- [69]). The detriment must be real and not trivial and whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41], Denmeade v Kempsey Shire Council & Ors (No.2) [2003] NSWADT 225 at [131].

27 Dr de Meyrick did not make a decision or treat Mr Hollows in any particular way. If Mr Hollows’ version of the comment is accepted, Dr de Meyrick merely suggested that one option was to abandon his studies. Whether he chose to pursue that option or some other option was entirely a matter for him. The suggestion that he consider abandoning his studies because of his health was of so little consequence that a Tribunal would be highly unlikely to regard it as a "detriment" under the AD Act. Furthermore it is not in the public interest to grant leave for a complaint based on such an inconsequential remark to proceed. That view makes it unnecessary to consider Mr Hollows’ prospects of satisfying a Tribunal that the remark constituted discrimination on the ground of disability.

Order

Leave is refused for the applicant’s complaint of disability discrimination against the respondent to be the subject of proceedings in the Tribunal.