VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No.H12/2019	
CATCHWORDS	
Section 75 of Victorian Civil and Administrative Tribunal Act 1998 – principles to be applied – allegation of victimisation	

APPLICANT	Chinmay Naik	
RESPONDENT 	Monash University Academic Board	
WHERE HELD	55 King Street, Melbourne	
BEFORE	Member B. Josephs	
HEARING TYPE	Section 75 Hearing	
DATE OF HEARING	13 February 2020	
DATE OF ORDER	24 July 2020	
DATE OF WRITTEN REASONS	24 July 2020	
CITATION	Naik v Monash University Academic Board (Human Rights) [2020] VCAT 797	
ORDER

1	The respondent’s application under section 75 (1) (a) of the Victorian Civil and Administrative Tribunal Act 1998 is granted and the proceeding is wholly dismissed.

B. Josephs
Member	

APPEARANCES:		
For Applicant	Mr C. Naik, in person	
For Respondent	Ms E. Latif of Counsel.	

Reasons
Background
1	The applicant, Mr Naik, commenced this proceeding by application dated 11 January 2019.
2	He initially filed and served Particulars of Claim on 30 October 2019. However, on 2 November 2019, he filed and served “modified” particulars of claim. These contained tracked changes which were necessary, according to Mr Naik, to correct errors in grammar, pronouns and structure in the initial particulars. 
3	Mr Naik’s particulars alleged that conduct of the respondent, Monash University Academic Board (“the Board”), constituted victimisation of him in breach of section 103 of the Equal Opportunity Act 2010 (“the EO Act”) as defined in sections 104 (1) (g) and (2) thereof.
4	By letter dated 26 November 2019, Clayton Utz, lawyers for Monash University (“the University”) and acting for the named respondent, applied pursuant to section 75 (1) (a) of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) to have this proceeding summarily dismissed (“the s.75 application”).
5	The s.75 application is that Mr Naik’s pleaded case is misconceived and lacking in substance and has no prospects of success. This position is put on two grounds. First, it is submitted by the University that the alleged victimisation, in breach of s. 103 of the EO Act, pre-dates the conduct protected by the definition of victimisation in s.104(1) (a) to (h) of the EO Act. Secondly, the University contends that the Board as the named respondent is not a “person” for the purposes of ss 103 and 125 of the EO Act. 
6	Submissions and an affidavit of Ms Tan, solicitor, both dated 26 November 2019, were filed and served in support of the s. 75 application.
7	Section 75 (1) (a) of the VCAT Act provides:
(1)	At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part of, a proceeding that, in its opinion –
(a)	is frivolous, vexatious, misconceived or lacking in substance” 
8	The hearing of the s.75 application was fixed for 13 February 2020.
9	By email dated 12 December 2019, Mr Naik applied to change the respondent’s name by adding the word “Members” so that the respondent would be effectively entitled “Monash University Academic Board Members.” 
10	In response, the Tribunal informed Mr Naik that his application was to be the subject of submissions for the s.75 application.

11	On 20 January 2020, Mr Naik filed and served his submissions in response to the s.75 application together with his purported supporting affidavit.
12	Submissions in reply and a further affidavit of Ms Tan, both documents being dated 3 February 2020, were filed and served on behalf of the respondent.
13	At the request of Mr Naik, on 6 February 2020, the Tribunal issued a summons to Mr Rhall, Senior Lawyer, Office of the General Counsel, Monash University, to produce by 10 February 2020, documents set out in annexure A to the summons. The summons also contained annexure B which set out Mr Naik’s reasons for seeking production of the documents.
14	By letter dated 10 February 2020 to both the Tribunal and Mr Naik, Clayton Utz advised that while the University maintained that the summons to produce was invalid, unclear and uncertain, in the interests of efficiency and as a goodwill gesture, it would voluntarily produce the documents it believed he was seeking. It then provided him with copies. 
15	Mr Naik also notified the Tribunal by email dated 10 February 2020 that he wished to cross-examine Ms Tan at the hearing of the s. 75 application on the contents of her second affidavit.
16	In a letter dated 11 February 2020, Clayton Utz confirmed that the University objected to Mr Naik’s request to cross – examine Ms Tan.
17	Prior to the hearing of the s.75 application, Mr Naik filed and served submissions in response to the University’s further submissions and Ms Tan’s second affidavit.
18	I heard the s.75 application on 13 February 2020. Both Ms Latif, Counsel for the respondent, and Mr Naik made oral submissions. However, no further issues were raised about the applicant’s request to cross – examine Ms Tan. I reserved my decision on the s.75 application.
Relevant EO Act provisions
19	Section 4 relevantly provides:
“Definitions
(1)	In this Act-
…………………………..
detriment includes humiliation and denigration;
…………………………..
person includes an unincorporated association and, in relation to a natural person, means a person of any age.
…………………………………….”
20	Section 103 provides:
“Prohibition of victimisation
A person must not victimise another person.”
21	Section 104 relevantly provides:
“What is victimisation?
(1)	A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person-
(a)	has brought a dispute to the Commission for dispute resolution; or
(b)	has made a complaint against any person under the old Act; or
(c)	has brought any other proceedings under this Act or the old Act against any person; or
(d)	has given evidence or information, or produced a document, in connection with-
(i)	any proceeding under this Act or the old Act; or 
(ii)	any investigation conducted by the Commission; or
(e)	has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or 
(f)	has otherwise done anything in accordance with this Act or the old Act in relation to any person; or
(g)	has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or
(h)	has refused to do anything that-
(i)	would contravene a provision of Part 4 or 6 or this Part; or 
(ii)	would have contravened a provision of Part 3, 5 or 6 of the old Act-
or because the person believes that the other person or the associate has done or intends to do any of these things.
(2)	It is sufficient for subsection (1) (g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.
(3)	In determining whether a person victimises another person it is irrelevant-
(a)	whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;
(b)	whether the person acts alone or in association with any other person.”
22	Section 125 provides:
“What may the Tribunal decide?
After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may-
(a)	find that a person has contravened a provision of Part 4. 6 or 7 and make any one of the following orders-
(i)	an order that the person refrain from committing any further contravention of this Act;
(ii)	an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;
(iii)	an order that the person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or  
(b)	find that a person has contravened a provision of Part 4, 6 or 7 but decline to take any further action; or
(c)	find that a person has not contravened a provision of Part 4, 6 or 7 and make an order that the application or part of the application be dismissed.”
Principles relevant to section 75 summary dismissal application
23	In determining applications under section 75 of the VCAT Act, the Tribunal has consistently followed principles set out in Rabel v State Electricity Commission (1998). The relevant principles were summarised by Justice Garde in Owners Corporation No 1 PS537642N v Hickory Group Pty Ltd (2015) VCAT 1683. 
24	For present purposes, the principles can be summarised as follows:
The Tribunal should be very cautious before summarily terminating a proceeding under section 75 as such action will have the effect of depriving a litigant of the opportunity to have his or her case decided in the ordinary course. The Tribunal should only proceed to strike out claims when satisfied that, because of one of the grounds in section 75, the case is manifestly hopeless, undoubtedly untenable or doomed to fail. It has been said that a high threshold must be met before VCAT can summarily dismiss or strike out all or part of a proceeding..
25	It is also accepted that VCAT should not order summary dismissal in circumstances where the outcome of the case depends on findings of fact based on contested evidence or if the ultimate fate of the proceeding depends upon contested questions of fact that would be established or illuminated by oral evidence or cross- – examination.
26	I am also mindful that the Tribunal is obliged to ensure that self – represented parties have a genuine opportunity to articulate their case. In considering the respondent’s application, I should take the applicant’s case at its highest. I must not strike out or dismiss the applicant’s case just because he has not articulated or explained it properly. However, I must also take into account the right of the respondent to understand the case put against it. 
The applicant’s particulars of claim
27	It is contextually both appropriate and necessary to set out Mr Naik’s particulars as pleaded:
1.	This is a claim of victimisation by Monash University Academic Board members defined under s104 (1) (g) and (2) under the instructions of Ms Helen Edwards and Ms Michelle Brockbank. These two staff members had access to the applicant’s complaint that his rights under the section 58 – 63 Monash University Adjustment to Assessment Procedures (which subsequently were co-related to Monash University Academic Board Regulation 22) were denied. Applicant states that the Academic Board has breached s.103 by amending specific parts of board regulation 22 upon learning of his complaint which was supposed to be discussed only with concerned people and aimed at resolution of the complaint, the opposite of which happened in this case.
2.	The claim is aimed specifically at additions to subsection 7 and 8 in the regulation 22 of the academic board regulations that are currently in place and which have been inserted after the applicant’s complaint lodged on 10.09.2017 and decided on 5.10.2017. 
These additions do not exist in older versions of the board regulations and are therefore prospective. The exact date of when they were inserted is unclear and several enquiries were made through FOI requests and emails to Ms Fiona Hunt who refused to answer any of them. The additions are as follows:
(7)	A student will not be permitted to complete a further deferred final examination or assessment task in a unit of study:
(a)	on a date that is more than 12 months after the end of the examination period when the unit was originally undertaken by the student; or
(b)	if the senior officer of the university designated as responsible by the Academic Board finds that a replacement examiner cannot be found for the unit in accordance with sub – regulation (9).
(8)	The senior officer of the university designated as responsible by the Academic Board, following a referral from the dean, may determine that a replacement examiner cannot be found for a unit of study where satisfied that the chief examiner for the unit is not available and no other member of academic staff has sufficient:
(a)	expertise in the subject matter taught in that unit; and
(b)	familiarity with the manner in which the unit of study was taught during the teaching period when the student was enrolled in the unit.
3.	If one were to interpret the application of s 7 (a), this means that a student is not permitted to (sic) an assessment task in circumstances where 12 months have passed from the exams of the unit and if there is no replacement examiner found.
Applicant’s recollection of events during months of September 2017 – July 2018 suggests that the chief examiner Mr Nicholas Parkin, who is also a respondent in H97-2018 of the tribunal, was supposedly on a sabbatical and this leave was not coincidental. 
It is safe to infer that Mr Parkin was asked to go on that sabbatical after the amendments were made in order to legally prevent the applicant from completing that further deferred final examination or assessment task, since the board regulations fall under the Monash University Statute. 
Furthermore, a replacement examiner for a unit can never be found who meets conditions (a) and (b) unless there were two examiners allocated for the exact same unit during the same semester. APG5135 had only one individual appointed as the unit coordinator and chief examiner at the time it was taught, and it was after the completion of this unit that an administrative grievance about the unit was raised by the applicant. This grievance dealt with the application of the specific regulation and how it was made unavailable to the applicant through a statement from a staff member from arts faculty.
It is therefore safe to infer that conditions 7 and 8(a) and (b) which act as prohibitions on a student wanting to avail the further deferred assessment task were inserted after the knowledge of my complaint with an intention to terminate the applicant’s right to avail this benefit anytime in future. The implementation of these prohibitions were presumably carried out by asking the chief examiner of the unit, Mr Nick Parkin to take a leave for unspecified/personal reasons and making the applicant ineligible to complete this task upon his return which was in June 2018, precisely after the period for which this deferred final assessment task could have been made available.
4.	Ms Helen Edwards in her letter sent to the applicant on 13.09.2017 had specifically stated that students who make grievances will not be subject to reprisal and victimisation and that grievances were discussed with persons able to provide relevant information or advice for their investigation and resolution. However, she and her colleague Ms Michelle Brockbank acted in bad faith and to the contrary where they took a significant amount of time in the grievance investigation and delivered an outcome with a clear conflict of interest and bias towards the concerned faculty members. They also managed to raise the applicant’s concerns with the higher level of Monash management i.e. the academic board and through their deliberations, came out with the amendments that prohibited the applicant from completing the task that could have been deferred further but was submitted as a result of an error of communication (stating no further extension will be possible on this assessment task) causing discrimination from a faculty member.
Applicant firmly asserts that the additions to sections 7 and 8 in the recent version of academic board have occurred in the months of September-October 2017, as amendments were made on 4th of October 2017, precisely one day before an outcome on his grievance about one of the regulations was dismissed.
All the documents (different versions of academic board regulations) between year 2016 – 2018 remain absent/inaccessible from the website, despite there being an obligation before Monash University to keep them public as a tertiary education provider.
Applicant’s requests to access critical information about the existence of these documents, their certification, and their digital copies, have been dealt with absolute denial and concealment confirming his assertion that the amendments (prohibiting an individual student’s access to a specific part of assessment by making the chief examiner unavailable for a certain period of time) were made after his complaint of discrimination.
Applicant therefore asserts that Ms Helen Edwards, Ms Michelle Brockbank, Mr Chris Davies as the president of academic board (without whose knowledge, no amendment can take place) are the prime individuals involved in the victimisation of the applicant by blocking his avenues in a legal way by amending a piece of legislation in the aftermath of applicant’s complaint of discrimination.
Applicant was clearly subjected to a “detriment” as defined in the EO act of being forever denied of completing his task in the stipulated time period originally scheduled for the completion of a rescheduled deferred final task (one year). This increased applicant’s course duration, his stay at Monash University and subjected him to a forceful completion of another unit with an additional monetary burden of $8100 for which his family had to make significant sacrifices.
The additions made in the s 22 of the board regulation are purely reactive and without a doubt made after a student’s complaint by the applicant and he therefore claims that Monash University has breached s103 of the EO act through the actions of its academic board and therefore should be liable for monetary and non – monetary damages in its vicarious liability.

Remedies Sought
1.	An unconditional apology for such predatory and victimising behaviour from the top – level management of Monash University.
2.	Monetary damages of $100,000 given the fact that the victimisation has happened through the knowledge of senior most management of Monash University and is therefore reprehensible for current and future students who enrol there.
3.	A written assurance that such an abuse of power and gross violation of the Equal Opportunity Act due to being an autonomous institution will not occur in the future.”
Respondent’s submissions in support of s. 75 application and affidavit of Ms Tan sworn 26 November 2019
Affidavit
28	Ms Tan deposed that she is a solicitor employed by Clayton Utz, she has carriage of this proceeding for the University under the supervision of a (named) partner, she made the affidavit from her own knowledge and belief, and when she referred to matters or information on belief she believed those matters to be true.
29	In relation to the discrimination complaint, Ms Tan stated that the University had kept a record of correspondence to it from Mr Naik and by reference to that record, the first time a discrimination complaint was made against the University or staff was on 4 December 2017 by an email of that date from Mr Naik to the University Provost (“the December 2017 email”) exhibited to her affidavit
30	For purposes of transparency she had also referred to, and exhibited to her affidavit, an email dated 18 October 2017 sent by Mr Naik to the University’s Ethical Conduct Queries branch (“the October 2017 email).
31	The subject matter of the December 2017 email was entitled “Legal notice served under disability discrimination act 1992 against Monash University staff Nick Parkin and Jared Price.” Omitting formal and irrelevant parts therefrom, the email stated:

“Kindly find attached notice attached with this email regarding discrimination that was meted at me since April 20th till June 26th by two of Monash University staff Mr. Nicholas ‘Nick’ Parkin and Mr Jared Price.
I am looking forward to hear a decision from you on this in 14 calendar days. Vice chancellor professor Margaret Gardner is CC’ed a copy of this email.”
32	The notice attached to the December 2017 email was three pages in length containing what the applicant stated were the facts of the case. It concluded with Mr Naik requiring a response within 14 days, failing which the matter would proceed to VCAT under the EO Act.
33	Omitting formal and irrelevant parts therefrom, the October 2017 email read:
“I want to know if sizable (sic) discrepancy in grading of an assignment by two different faculties with similar expertise amounts to bias towards the concerned student or act of deliberation by the faculty grading him/her less.
Also acts of exclusion/unfair treatment during question and answer sessions, neglection (sic) during in class discussion, refusal to assist towards assignments, do all of these fall in the ambit of unacceptable behaviour by a staff?
If the matter is investigated and if indeed the faculty is found to be culpable of such a bias or discrimination, what measures does the university take to ensure that fair justice is done to the aggrieved student?”
34	As to the status of the Board, Ms Tan deposed that she had been instructed and believed that the University established the Board using its power under s.20 of the Monash University Act 2009 (Vic) (“the MU Act”). For clarity, she confirmed that the Board is not a natural person or a corporation but operates via members appointed or elected to it in accordance with the Monash University (Council) Regulations from time to time.
35	Exhibited to the remainder of the affidavit were other emails between the parties and the Tribunal for the period 21 to 26 February 2019 relating to the University proposing to Mr Naik that the University should be named as respondent in order to involve, other considerations aside, the EO Act and VCAT, and Mr Naik’s opposition to such proposal.
Submissions
36	The facts relevant to the s.75 application for the victimisation complaint are that the acts of victimisation relied upon by Mr Naik are alleged to have been constituted by detrimental action by the Board in September 2017 by sending Mr Parkin on leave (Mr Parkin being the academic who graded the applicant’s assignment as a fail) and on 4 and 5 October 2017 when it amended regulation 22 of the Monash University Academic Board Regulations  (“the Board regulations”).
37	Mr Naik did not complain of discrimination until the December 2017 email which is at least two months after the detrimental action relied upon by him as a breach of s 103 of the EO Act;
38	The University regards the October 2017 email as an enquiry by Mr Naik relating to his dissatisfaction with the fail grade which fell short of a form of action within s. 104 (1) (a) to (h) of the EO Act. However, even if it has mischaracterised this action in terms of s.104 of the EO Act and it should properly be regarded as having been a complaint of discrimination, it still occurred almost two weeks after the occurrence of any alleged detrimental action relied upon as constituting victimisation.
39	The facts relevant to the s.75 application about the status of the Board as a respondent are reiterated in that the University has raised the status of the Board with Mr Naik on a number of occasions and invited him to name a different respondent but he has refused to do so.
40	The victimisation allegation is misconceived and lacking in substance as causation cannot be satisfied. Section 104 of the EO Act defines victimisation as detrimental action taken because of any of the circumstances identified in s 104 (1) (a) to (h). The word “because” imports causation. Cause and effect carries a temporal connection between two facts such that one (the effect) must follow the other (the cause). This position cannot be satisfied in Mr Naik’s case because the alleged detrimental action occurred before any allegation of discrimination occurred.
41	Further and in the alternative, the proceeding is misconceived and lacking in substance because the Board is not a person. “Person,” although referred to in ss 103, 104 and 125 of the EO Act, is not defined in those sections or otherwise in the EO Act.
42	Section 38 of the Interpretation of Legislation Act 1984 (Vic) defines “person” to include a “body politic”, “corporate” and “individual.” A “body politic” is defined in the Macquarie online dictionary to mean “a political body under an organised government.” 
43	Under s 4 (2) (b) of the MU Act, the University is established as a “body politic and corporate”. There is no equivalent provision in respect of the Board, which is an organisation established pursuant to the power conferred on the University by s.20 of the MU Act. The Board is accordingly not a “person” for the purposes of the EO Act and therefore not amenable to VCAT’s jurisdiction.
Responding submissions and affidavit of Mr Naik dated 19 January 2020.
Affidavit
44	I have referred to Mr Naik’s affidavit in terms of being a purported affidavit. I have done so because I have concerns about its validity, particularly with reference to its form and whether it was made before an authorised witness. It appears the respondent also has concerns about its validity. Despite such concerns, I have fully considered the contents of the document in determining the s. 75 application.
45	Documents, purporting to be exhibits (but not separately certified by the witness as such), are attached to the affidavit and are referred to and identified in the body of the affidavit. 
46	Most relevantly, in the affidavit itself, Mr Naik stated that he was enrolled in a video journalism unit in semester 1 of 2017 which had a final assessment task due on 4 June 2017. 
47	However, he required an extension of time due to ongoing issues with his disability and he therefore registered with the disability support services of the University on 19 June 2017. An extension of time was granted on 22 June 2017 close to midday and was approved with a special note added with emphasis stating, “No further extension will be possible on this assessment task.”
48	Having the disability which affects his functioning, he was not privy to the assessment procedures Monash had for students who were supported with the disability support services for the University.
49	He lodged a formal grievance form on 10 September 2017 together with an attached letter. These documents stated the actions that would contravene sections of the EO Act without expressly invoking the EO Act or using the word ‘discrimination’. The grievance included claims of misconduct and harassment from two faculty members. However, the complaint was predominantly aimed at Mr Naik not being given the then available benefit of a rescheduling of a deferred final assessment.
50	The outcome which he sought at that time was to be allowed a fresh assessment on the ground that he had been denied a benefit from a faculty member in the processing of his special consideration application. Since the task had already been evaluated, the only fair way of dealing with the situation was for him to have a fresh assignment opportunity.
51	The grievance was the first time an officer within the University who held an administrative position was formally notified of the discrimination (without the actual use of the word).
52	On 6 October 2017, he received an email stating that the grievance was dismissed on 5 October 2017 and that as he had completed the task, he was ineligible for a delayed deferred opportunity.
53	He had not formally used the word ‘discrimination’ in any of his communications with the University until his letter of 4 December 2017.
54	The Grievance Lodgement Form dated 10 September 2017 and attached letter are included within the purported exhibits to the affidavit.
55	In the Grievance Lodgement Form, omitting formal and irrelevant parts therefrom, Mr Naik stated:
“Kindly find a letter attached outlining my circumstances that led to this grievance request.
I was denied a chance of asking for a rescheduling for a deferred assessment before submitting, by a note from the special consideration department stating ‘no further extensions will be possible for the task’. I was a registered member of Disability Support Services and was battling severe anxiety for the month of May and June. I had just started to recover towards the later part of June when I had applied for special consideration. The aforesaid note in bold letters prevented me from asking for a rightful rescheduling of deferement (sic). I had also declined a withdrawn incomplete grade on grounds that my circumstances were ongoing.
I kindly request you to look into this matter and assist me with this grievance……
The faculty rejected my request to redo or resubmit the assignment mentioning that since I submitted the assignment, I was not eligible for another chance. They refused to acknowledge that it was their email which compelled me into submitting a semi professional task, fearing the consequences of failing the unit.
When applied for a withdrawn incomplete grade, I was also declined the same mentioning my circumstances were ongoing.
I am seeking a rescheduling of my assignment 6 and 7 of unit APG5135 since it was a right/privilege before me on 22nd of June which the faculty denied me of while approving special consideration by adding a note mentioning ‘no further extension will be possible for the said task.”
References in the Form to faculty are to the Arts faculty.
56	The letter attached to the Form by Mr Naik was addressed to the Arts Grievance Officer, Monash University. Omitting formal and irrelevant parts therefrom, it read:
“My name is Chinmay Naik and I am a currently enrolled student at Monash University, pursuing Masters of Journalism….., in my second year,……
I am currently filing a grievance request with regard to my previously enrolled unit, APG5135 Video Journalism in semester one from March to May for which I have been awarded a Fail Grade (N) as per the results declared on 10th of July, with an overall score of 44.
My claim
Given the above set of circumstances that were unique in themselves, I wish to seek the following outcome from the grievance application:
I may be allowed to resubmit the assignment 6 and 7 of the unit APG5135 with a new deadline and my results may be amended.
Background
Please allow me to provide you with relevant background information to my grievance. I have an anxiety condition which tends to fluctuate and which has had an impact on my overall progress in academics. I am also currently registered with the Disability Support Services with regard to the same issue/condition.
For assignment 6 of this unit, I had to do a current affairs story, which required long term planning and research. My health circumstances had worsened after the ‘Withdrawn Fail’ period, after the 2nd of May 2017, and I was severely struggling to get this assignment done, in addition to a critical reflection of the unit, as per the deadline, which was the 4th of June 2017 for both the tasks.
I had also applied for in-semester special consideration on 20th of June 2017, with a medical certificate from my GP, which was approved by the faculty on 22nd of June and gave me time until 23rd of June. My grievance relates to this special consideration application.
Faculty error in due process
I believe my special consideration application should have been considered as an end – of – semester special consideration application, rather than in – semester. My arguments for this are as follows:
1.	Assignment 6: Video Current Affairs Story is worth 30% of the overall unit mark, making it a major assessment task, as defined in Monash University’s Assessment in coursework Units: Grading and Marking Procedures.
2.	The assessment due date, originally on June 4 2017, falls outside the semester teaching period (end date of 26 May 2017).
3.	University policy does not specifically define what a ‘formal end-of-semester’ assignment consists of. However, the aforementioned procedural document defines a Final Examination as á major assessment task… held after the end of the teaching period’.
For these reasons, I believe that my application should have been considered as a ‘special consideration for end-of-semester tasks’. The reason for this is that my on-going medical issues may have rendered me eligible for a further extension, allowing me to (sic) opportunity to submit work of a quality, which I have demonstrated the ability to produce.
Instead, the Faculty, while approving my special consideration application as an in-semester special consideration, added a note to the approval email, which stated that ‘no further extension will be possible for the said task’ (The same email is also attached here). This comment in itself failed to recognise my disability, for which I am duly registered.
Section 47 of the Assessment in Coursework Units: Adjustments to Assessment Procedures states that “Once special consideration has been granted for a given set of circumstances, further special consideration will not normally be granted for the same in-semester assessment task”. However, given that my circumstances were not normal at the point of time, I had started seeing my personal counsellor, Jodie Cicaji, who has also given me with a certificate explicitly mentioning that my anxiety tends to fluctuate, leading to impaired concentration and difficulty in speaking up for myself (the same is attached with my mail here). Under the given set of special circumstances, the faculty’s note in bold prevented me from exercising my rights in asking for a rescheduling of the aforementioned assessment.
No such provision exists for end-of-semester assessment tasks, as seen in section 48 of the above-mentioned procedure. In addition, given the fact that I had fulfilled both criteria in Section 58 of the above said document, which states that, “Where a student has been granted a deferred final assessment but has failed to undertake or complete it due to:
•	An ongoing disability, where the student is registered with Disability Support Services; or
•	the circumstances for which the deferred final assessment task was granted are unresolved the student may apply for re-scheduling of the deferred examination or an extension of time for submission of the assessment task, as the case requires, on the further occasion. This rescheduled assessment must occur within 12 months of the end of the examination period when the unit was originally undertaken by the student’.
Misleading conduct
Although I had submitted the assignment on the given deferred deadline date of 23rd June 2017, it was the faculty’s email which misled me into thinking that it was my last chance to pass the unit, and because of that I ended up submitting my work which did not fulfil the minimum expectations of my unit coordinator and hence, failed the unit. 
Although I requested a three-day extension initially on the 20th June 2017 for Assignments 6 and 7 of the same unit, I was under enormous pressure given the email correspondences (the same is attached here) between myself and my unit coordinator, which placed me under the duress of thinking that I was close to failing the unit. Moreover, since the examinations for semester one were ending on the 23rd of June 2017, I was under the impressions that my assignments would not be graded until after the said date of 23rd June 2017.
The document Assessment in Coursework Units: Adjustments to Assessment Procedures was not readily available to students at the beginning of the semester. This was because it was part of a new policy and procedure regime. I was informed about the provisions of Section 58 by MPA advocates once I had already submitted my work. Moodle only includes the unit guide, which outlines briefly the process of special consideration, which also does not have these intricate provisions in the assessment procedures. I believe the lack of transparency on the part of my faculty at this time, was extremely prejudicial to me.
Given the fact that my circumstances were adverse and unresolved, I was in no position to seek advocacy in those three days, when I was given special consideration by the faculty and where I could have had the possibility of being informed about the rescheduling of my deferred assessment. In any event this information ought to be clear and readily available to students at all time regardless of whether or not students seek support from elsewhere. I prioritised submitting my work, and hence submitted a video, whereby I was unsure if it would meet the minimum standard requirements of the assessment………………………………
Misinformation
Had the misinformation mentioning, ‘no further extensions will be possible for the said task’ not been delivered to me along with the approval of my special consideration application, or had my application been considered as an end-of-semester task, I would have asked for more time since my physical and mental circumstances were quite adverse given the nature of the assignment. Three days were simply not enough to complete the said task, which would have fulfilled the faculty’s expectations.
As per the advice of one of the staff from the special consideration department, I chose to apply for a Withdrawn Incomplete grade on the 16th of August 2017, so that my WAM and GPA would not be affected. However, this too was declined by the faculty, which left me no option but to file this grievance letter before you.
In summation, I believe that the Faculty did not present me with all the information relevant to my particular circumstances, and that due consideration was not given to the exceptional nature of my circumstances, which were by no stretch of the imagination ‘normal’. As a result, I have been prejudiced in the following ways:
1.	Monetary losses which, as a full fee-paying postgraduate student, represent a significant burden that may prevent me from completing my studies; and 
2.	Increased duration of my degree, which may requirement (sic) me to extend my visa and OSHC, further increasing the financial burden imposed upon me; and
3.	Increased severity of my anxiety due to the above concerns. 
Thank you for taking the time to consider my grievance. I look forward to your reply.”
Submissions
57	As to the ground supporting the s. 75 application of naming the Board as respondent, Mr Naik submits that he has overcome that issue by stating that he intends to add ‘member/s’ to the title of the respondent. In this regard  he refers to s. 104 (3) (b) of the EO Act which allows room for more than one person to be sued for victimisation and he contends that where it is ambiguous as to which member/s of the Board were involved in amending the regulation stated in the particulars of claim it is appropriate to proceed with his proposed amended respondent.
58	In relation to the alternative ground in the s.75 application that the detrimental action occurred before any allegation of discrimination was raised, Mr Naik reiterates his reliance on s. 104 (1) (g) and s 104 (2). 
59	He submits that to the extent these two subsections simply require an allegation of the act that would constitute the contravention, without stating that the EO Act or a provision of it has been contravened, the wording of his grievance of 10 September 2017 meets that requirement in stating the act constituting discrimination by deterring him from making a further application for a delayed deferred assessment. 
Submissions in reply of the respondent and further affidavit of Ms Tan dated 3 February 2020.
Further affidavit
60	Ms Tan also made her further affidavit as a solicitor employed by Clayton Utz with the carriage of the proceeding under the supervision of the (named) partner. Additionally, she made it from her own knowledge and belief and confirmed that where she referred to matters or information on belief, she believed those matters to be true.
61	In responding in this further affidavit to Mr Naik’s supporting material, Ms Tan, at the outset, expressed her belief  that he relies on regulation 22 of the Board regulations as the basis for his victimisation complaint because he alleges it was amended in October 2017 in response to his conduct. Ms Tan has therefore traced through the history of regulation 22 of the Board regulations for the period 2015 to 2017.
62	Ms Tan was instructed and believed that Mr Naik’s grievance was filed pursuant to the Monash Student Complaints and Grievances Policy (“the Policy”) and the Monash University Complaints and Grievances Procedure (“the Procedure”). The Policy was effective from 23 April 2015 with a review date of 22 April 2018. The Procedure was effective from 20 September 2016 with a review date of 20 September 2019. Both documents were exhibits to the further affidavit.
63	Throughout the period of 2015 to 2017 traced by Ms Tan, she noted that deferred final examinations and assessment tasks were dealt with in regulation 21 of the Board regulations. This regulation essentially provided that a deferred final examination and assessment task has been available to a student who failed to undertake their final examination or assessment task. Ms Tan’s instructions and Mr Naik’s material, however, indicated to her that Mr Naik completed his assessment task, but he sought an extension of time for filing his assessment task in order to avoid marking penalties for late submission.
64	Regulation 21 (2) provides:
“A student who, due to exceptional circumstances, failed to undertake or complete a final examination or assessment task in a unit of study may apply to the dean of the faculty for a deferred examination or an extension of time for submission as the case requires.”
65	Exhibits to the further affidavit also included the 2015, 2016 and 2017 Board regulations and 2015, 2016 and 2017 Amending regulations which took effect on and from 31 August 2015, 16 May 2016, and 4 October 2017 respectively. 
66	The 2015 and 2016 Amending regulations amended regulation 22. The 2017 Amending regulations did not amend regulation 22.
67	I have reviewed the exhibits. From my review, as a result of the 2015 and 2016 amending regulations, regulation 22 (7) and (8) of the Board regulations on and from 16 May 2016 are the same as the Board regulations referred to and relied upon by Mr Naik in his particulars of claim. As Ms Tan notes, this is earlier than Mr Naik’s fail grade.
Submissions in reply
68	The University maintains, according to the temporal issue, that this proceeding is hopeless and doomed to fail because Mr Naik did not engage in any conduct protected by s. 104 of the EO Act until the December 2017 email which is after the alleged acts of victimisation relied upon by him.
69	The grievance was lodged in accordance with the Policy as referred to in Ms Tan’s further affidavit. The Policy is an internal process for dealing with grievances a student may have during their study course. It defines a “complaint” as an “expression of dissatisfaction from a student with a decision of the University or the manner of delivery of a service offered or provided by the University” and a “grievance” as a “formal written notice given by a student after an unresolved complaint which initiates action under this policy.”  The scope of the Policy is limited and, as specifically stated in the Policy, it may not be used “to initiate an action about discrimination or harassment”.
70	In accordance with Ms Tan’s reference in her further affidavit to regulation 21 of the Board regulations, students continue to have the same entitlement to seek a further deferred examination or assessment.
71	Mr Naik has never had any entitlement to seek a deferment of a final assessment task because he did not fail to complete his assessment. He submitted his task for assessment within an extended time frame. He requested an extension of time.
72	Regulation 22 of the Board regulations was not amended in October 2017.
Mr Naik’s summons to produce
73	In annexure A to the summons, Mr Naik sought for Mr Rhall, in- house University counsel, to produce two specified sets of documents. The first set was all versions of the Board regulations from January 2015 in original and unaltered MS Word format created on or about 1 July and 31 August 2015, 16 May and 14 October 2016, and 10 January and 4 October 2017. The second set was digital copies in original (MS Word) format of the 2015, 2016 and 2017 Amending regulations exhibited to Ms Tan’s further affidavit.
74	Annexure B to the summons sets out Mr Naik’s reasons for it. He stated that the majority of the Board regulations referred to in Annexure A are not publicly available and he requires their production in original (MS Word ) format to verify the further affidavit of Ms Tan as the exhibits appear to be scanned copies of printed documents without certification or authentication by the University.
Mr Naik’s response to further submissions and affidavit on behalf of respondent
75	Ms Tan does not hold any executive position at the University and, as such, statements she made in her affidavit about matters within the University structure can only exist in the form of written submissions and not as evidence. Accordingly, and given that the Board regulations and Amending regulations exhibited to Ms Tan’s further affidavit are scanned copies of printed documents, and not in their original form, a final hearing is required during which the Tribunal can examine the exhibits in their original form in order to properly verify them.
Hearing of the s. 75 application
76	In addition to this proceeding against the Board, Mr Naik has two other current and ongoing VCAT proceedings. 
77	The first proceeding was commenced by application dated 27 March 2018. It is a claim against four individual staff members of the University and the fifth respondent is the University itself. Mr Naik claims under the EO Act, alleging discrimination, including failing to make reasonable adjustments for a student with a disability and the authorising of, or assisting, discrimination.
78	The second proceeding is an application under the Health Records Act 2001 against the University. It was referred to the Tribunal by the Health Complaints Commissioner on 19 August 2019 and arose from a complaint initially received from Mr Naik on 22 February 2019.
79	Early in her oral submissions, Ms Latif noted that, despite the other proceedings, this proceeding involves the discrete issue of victimisation and the Tribunal can order summary dismissal.
80	Ms Latif focussed on the temporal issue. While denying any conduct by the University that constituted victimisation, she stressed that even if Mr Naik’s allegations were found to be correct and there had been amendments in October 2017 to Board regulation 22 and the University had forced Mr Parkin to take extended leave, all of this occurred prior to any complaint of Mr Naik which is protected.
81	In this regard, Mr Naik’s claim is based on alleged victimisation occurring, at the latest, on 4 October 2017. This requires that his grievance is found to be within the parameters of ss.104 (1) (g) and 104 (2) of the EO Act. Ms Latif observed that the objective of the victimisation provisions is to allow ‘vulnerable’ people to be able to speak up about alleged matters of discrimination and to be protected in so doing. However, she had no doubt that the grievance was not a discrimination complaint of the type protected.
82	While not specifically abandoning the issue pertaining to the identity of the respondent, Ms Latif acknowledged that it was not an insurmountable problem to overcome and clarify. However, she maintained that the applicant cannot continue in the “holding position” in which he has remained for a long time on the issue. She argued that the University was entitled to have the issue clarified with parties being named on a proper basis.
83	Finally, Ms Latif submitted that there is simply no material available which supports Mr Naik’s allegations about the University providing erroneous documentation and information about the amending of Board regulation 22. Rather, she effectively regarded his position as being based on groundless suspicion and to be purely speculative in nature. Additionally, she was very concerned about the consequences which she perceived as arising from Mr Naik’s submissions on this issue. From the narrowest perspective she regarded them as being unhelpful and irrelevant and from the broadest view she regarded them as improper given their seriousness and the inference of impropriety by Ms Tan in deposing to her further affidavit. Ms Latif was also concerned about the unnecessary long and costly hearing time that would result from the forensic inquiry about the exhibits that Mr Naik submitted as being required.
84	Mr Naik, however, maintained that the s.75 application should be dismissed as to do otherwise would deny him the rightful opportunity to be heard on all issues including the conduct of the University about which he has expressed his concerns.  He reiterated that the grievance was a discrimination complaint requiring protection and he did not resile from his position that the originals of the Board and Amending regulations needed to be produced and examined as, from his observations, there were differences in the form and appearance of these exhibits to the further affidavit when compared with the copies provided to him.
Whether the proceeding should be dismissed.
85	Mr Naik is self – represented. Accordingly, in deciding the s.75 application, I will only consider the two alternate grounds relied upon by the respondent.
86	However, it has been appropriate and necessary to set out and consider all the material filed and served to date by the parties.
87	I do not regard the issue of the correct identity of the respondent as a ground for the striking out or dismissal of the proceeding. If the respondent had relied on this ground solely, it would not have been appropriate to shut out Mr Naik from the opportunity to further investigate and agitate it.
88	However, I accept the respondent’s submissions on the temporal issue. As such, I regard the case as misconceived or lacking in substance. Even viewing it from its highest from the applicant’s perspective, it is manifestly hopeless, undoubtedly untenable or groundless and is bound to fail.
89	I am granting the s.75 application and summarily dismissing the proceeding.
90	Despite the issues raised by Mr Naik about the admissibility of Ms Tan’s further affidavit and the authenticity of the exhibits thereto about regulation 22 and the assertions made about Mr Parkin’s leave being extended at the direction of the University for a period from September 2017 to the end of July 2018, the case turns on whether the complaint and grievance of Mr Naik of 10 September 2017 was a discrimination complaint within the terms of ss 104 (1) and (2) and as such a protected complaint.
91	Whatever be the other disputes between the parties and related individuals, I accept Ms Latif’s submission that this proceeding involves the discrete issue of victimisation in the terms of the EO Act and it can be “carved out” from the other disputes.
92	I do not find the complaint and grievance dated 10 September 2017 to be a discrimination complaint falling within the parameters of ss 104 (1) and (2) of the EO Act and it is therefore not protected as contended by Mr Naik. It was a step in an administrative process pursuant to the Policy and the Procedure.
93	The causation argument by the respondent is accepted. While maintaining a denial of committing or undertaking any alleged acts of victimisation, the University correctly asserts that even if such acts did occur, they did so after the complaint and grievance of Mr Naik of 10 September 2017 which is not protected.
94	I find that neither any part of the complaint and grievance including the Form and letter contained any allegation that the respondent, the University or any staff member has contravened a provision of Part 4, 6 or 7 of the EO Act nor do they contain any allegation which states an act or omission that would constitute a contravention.
95	In the complaint and grievance Mr Naik sought permission to resubmit the assignment 6 and 7 of the unit APG5135 with a new deadline and that his results be amended. He supported this request by three broad allegations against the Arts faculty which are set out under the headings of “Faculty error in due process”, “Misleading conduct”, and “Misinformation.”
96	While the headings of the latter two of the three categories may on their face imply conduct of a more aggravated nature, Mr Naik’s submissions relate to alleged administrative errors, and not to discrimination. 
97	He asserted that his special consideration application should have been considered as being one of ‘end – of – semester” rather than being considered, as he believed it to have been, as one of ‘in- semester.’
98	Mr Naik then refers to relevance, interpretation, and application to the administrative decision of the Assessment in Coursework Units: Adjustments to Assessment Procedures, including with reference to specific sections thereof. 
99	Throughout the complaint and grievance, he included his dissatisfaction with the inclusion of the wording ‘no further extension will be possible for the said task.’ He also noted that he applied for a Withdrawn incomplete grade on 16 August 2017. This was also declined by the faculty which he recorded as then leaving him with no option but “to file this grievance letter before you.” 
100	He finalised the complaint and grievance letter by expressing his belief that the Faculty did not present him with all relevant information and did not give due consideration to his particular circumstances.
101	I find that the 4 December 2017 email was the first notification of alleged discrimination in terms of s 104 of the EO Act. It may be arguable that the 18 October 2017 email was the first notification. However, while I also regard it as more of an enquiry, and therefore not a notification in terms of s.104 of the EO Act, it is essentially immaterial to the s.75 application as both emails are after the latest date of the acts of victimisation alleged by Mr Naik.
102	I have made orders accordingly granting the s. 75 application and summarily dismissing the proceeding. 

B. Josephs
Member