Shammas v Canberra Institute of Technology
[2013] ACTCA 50
•2 December 2013
BAN SHAMMAS v CANBERRA INSTITUTE OF TECHNOLOGY
[2013] ACTCA 50 (2 December 2013)
APPEAL – Interlocutory Appeal – application for leave to appeal from refusal of application for leave to appeal from ACAT – whether decision interlocutory or final
APPEAL – Interlocutory Appeal – application for leave to appeal from refusal of application for leave to appeal from ACAT – whether decision attended with sufficient doubt and substantial injustice would be done by leaving decision unreversed – where self-represented non-native English-speaking appellant – whether appellant received a fair hearing – whether judge biased or acted in bad faith
ACT Civil and Administrative Tribunal Act 2008 (ACT), s 83(2)
Human Rights Commission Act 2005 (ACT), s 53A
Supreme Court Act 1933 (ACT), s 37E(4)
Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37
Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Hall v The Nominal Defendant (1966) 117 CLR 423
Heller Financial Services Ltd v Solczaniuk (1989) 99 FLR 304
Licul v Corney (1976) 180 CLR 213
Niemann v Electronic Industries Ltd (1978) VR 431
Perry v Smith (1901) 27 VLR 66
Preston v Dukes [2012] ACTCA 29
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591
SBAP v Refugee Review Tribunal [2002] FCA 590
SCAS vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397
Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1 of 2013
No. SCA 76 of 2012
Judge: Nield AJ
Supreme Court of the ACT
Date: 2 December 2013
IN THE SUPREME COURT OF THE )
) No. ACTCA 1 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 76 of 2012
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BAN SHAMMAS
Appellant
AND: CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
ORDER
Judge: Nield AJ
Date: 2 December 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave is granted to the appellant to prosecute her out of time application for leave to appeal to the Court of Appeal from the decision of Penfold J.
Leave is refused to the appellant to appeal to the Court of Appeal from the decision of Penfold J.
The appellant’s application for leave to appeal to the Court of Appeal from the decision of Penfold J is dismissed.
The appellant is to pay the respondent’s costs of the application for leave to appeal.
IN THE SUPREME COURT OF THE )
) No. ACTCA 1 of 2013
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 76 of 2012
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BAN SHAMMAS
Appellant
AND: CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
Judge: Nield AJ
Date: 2 December 2013
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The circumstances which brought the appellant, Ms Ban Shammas, to seek leave to appeal to the Court of Appeal need to be outlined for an understanding of the result.
A COMPLAINT TO THE CANBERRA INSTITUTE OF TECHNOLOGY
At some time during 2010 the appellant commenced study in the Business Administration course at the Canberra Institute of Technology (the Institute). Unfortunately, some things happened during her time as a student at the Institute which concerned her and about which she complained to the Institute. On 9 November 2010, she was told that, although the Institute had investigated and considered her complaints, there was nothing that the Institute could do about them because the basis of her complaints was unrelated to her as a person or as a student. It was the investigation of her complaints by staff of the Institute which the appellant complained amounted to discrimination against her by the Institute on the grounds of her age and race.
SOME COMPLAINTS TO THE HUMAN RIGHTS COMMISSION
By letter dated 5 January 2011 the appellant complained to the Human Rights Commission that she had been discriminated against by staff of the Institute on the grounds of her age and race. After considering her complaints, the commission decided that the appellant had not been discriminated against by staff of the Institute on the grounds of either age or race. At the request of the appellant, the appellant’s complaints were referred to the ACT Civil and Administrative Tribunal (the Tribunal) pursuant to s 53A of the Human Rights Commission Act 2005 (ACT).
A HEARING BEFORE ACAT
On 15, 16 and 17 February 2012, Ms J Lennard, a senior member of the Tribunal, heard evidence in relation to the appellant’s complaints about the conduct of the staff of the Institute.
On 5 March 2012, Ms Lennard heard an application by the appellant to re-open the hearing to hear the appellant’s complaints that ASIO was interested in her and that it was “bugging” her telephone. This application did not lead anywhere or to anything. Ms Lennard refused to re-open the hearing. It is obvious that, even accepting that the appellant honestly believed that ASIO was interested in her and was bugging her telephone , it did not mean that the Institue was responsible for ASIO’s interest in her or that in some way the Institute had discriminated against her because of her age or race.
On 8 March 2012, Ms Lennard announced her decision. She outlined the 12 complaints made to the Institute; she identified the 8 witnesses who gave evidence during the hearing; she noted that the appellant did not give evidence as a witness during the hearing; she referred to the 25 exhibits; she mentioned the relevant legislation; she referred to relevant authorities; and she concluded that none of the appellant’s complaints had been proved and that none of the staff of the Institute had discriminated against her on the grounds of her age or race.
AN APPEAL TO THE APPEAL DIVISION OF ACAT
On 19 April 2012, following the decision of Ms Lennard, the appellant, being dissatisfied by Ms Lennard’s decision, appealed to the Tribunal’s Appeal Division from Ms Lennard’s decision.
On 23 July 2012, the appellant filed a document, containing 57 numbered paragraphs over 9 pages, headed “Appellant [sic] Contentions” in the Tribunal, in which she set out her points of argument in relation to her appeal from the decision of Ms Lennard and by which she sought an order, inter alia, that her appeal be removed from the Tribunal’s Appeal Division to the Supreme Court (see s 83(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act)). In her document, the appellant stated her complaints about the hearing before Ms Lennard and restated her complaints about the alleged discrimination of her when she was a student at the Institute.
On 27 July 2012, Mr W.G. Stefaniak, the President of the Tribunal, decided, as the respondent did not consent to the appellant’s appeal being removed from the Tribunal’s Appeal Division to the Supreme Court, that the appeal would remain in the Tribunal’s Appeal Division. This decision was made pursuant to s 83(2) of the ACAT Act.
Accordingly, on 2 and 6 August 2012, Mr Stefaniak heard submissions, based on the evidence before Ms Lennard, from the appellant and the respondent’s legal representative, after which he gave his decision, by which he dismissed the appeal, finding that none of the appellant’s complaints, even accepting that there was a factual basis for her complaints, amounted to discrimination against her by the staff of the respondent on the grounds of her age or race, and that, even accepting that ASIO was interested in her and was “bugging” her telephone, it did not amount to discrimination against her by the staff of the respondent.
On 24 August 2012, Mr Stefaniak, at the request of the appellant, published this note:
I note that the appellant’s request for a statement of reasons for my decision AA 10 of 2012 is out of time and I also note that the detailed reasons are contained in a copy of the transcript attached to this document which forms the basis for my decision. However, for the further assistance of all parties I will briefly summarise those reasons as follows:
a)I could find no evidence whatsoever which indicated to me that the Canberra Institute of Technology (the CIT) and its staff, agents, employees and servants had in any way discriminated against the appellant. As indicated in greater detail in the transcript attached, I formed the view that the staff of the CIT were trying their best to help her.
b)In considering the detailed of the proceedings before Senior Member Lennard, I came to the conclusion that Ms Lennard gave Ms Shammas every possible latitude and assistance and her consideration of the evidence was thorough and sound. I found that she came to the only available [sic] conclusion available to her on all the evidence before her. I endorse her judgment and her reasons for decision.
c)The additional limited material put before me by the appellant on appeal did not advance her case at all.
d)Accordingly I confirmed the decision of Senior Member Lennard and dismissed the appeal. Please see the transcript attached for further detail.
AN APPEAL TO THE SUPREME COURT
On 5 November 2012, the appellant lodged/filed an application in the Registry of the Supreme Court seeking leave to appeal to the Supreme Court from the decision of Mr Stefaniak. In support of her application, the appellant filed an affidavit containing 156 numbered paragraphs over 32 pages.
Then on 4 December 2012, the appellant lodged/filed another application in the Court’s Registry seeking leave to appeal to the Supreme Court from the decision of Mr Stefaniak. With this application was an Amended Notice of Appeal setting out twenty-seven “questions of fact”, one “question of fact and law” and ten “questions of law” over 10 pages and an affidavit containing 556 numbered paragraphs over 75 pages.
On 5 December 2012, the appellant’s application for leave to appeal to the Supreme Court from the Tribunal’s Appeal Division came on for hearing before Penfold J. The appellant appeared without legal representation. The respondent was represented by Ms S Gasser, solicitor of the office of the ACT Government Solicitor. After hearing submissions from the appellant, her Honour adjourned the hearing to 11 December 2012, after telling the appellant that she may, if she wished, file five pages of written submissions.
Accordingly, on 11 December 2012, Penfold J resumed the hearing and, after hearing further submissions, she reserved her decision. Her Honour had the appellant’s written submissions, of 155 numbered paragraphs over 16 pages, which the appellant had filed in the Court’s Registry on 10 December 2012.
On 20 December 2012, Penfold J announced her decision ([2012] ACTSC 197). She refused to grant leave to the appellant to appeal to the Supreme Court from the decision of the Tribunal’s Appeal Division.
AN APPEAL TO THE COURT OF APPEAL
On 2 January 2013, the appellant lodged a Notice of Appeal in the Registry of the Court of Appeal appealing from the decision of Penfold J. This Notice of Appeal was stamped as “filed” on 2 January 2013. This Notice of Appeal, if appropriate, was filed within time.
AN APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL
Then, as she was uncertain as to whether she needed the leave of the Court of Appeal to appeal to it from the decision of Penfold J, on 15 March 2013, the appellant lodged an application in the Court’s Registry seeking leave of the Court of Appeal to appeal to it from the decision of Penfold J if the decision of Penfold J is considered to be an interlocutory decision. This application was stamped as “filed” on 26 March 2013. This application, if needed, was not filed within time. Paragraph 2 of the application sought leave to make the application even though it was filed more than seven days after judgment was handed down.
However, on 15 March 2013, the appellant lodged a further application in the Court’s Registry seeking leave of the Court of Appeal to appeal to it out of time from the decision of Penfold J if the decision of Penfold J is considered to be an interlocutory decision. In the “grounds of application” for this application the appellant explained the reasons for making the application, being confusion about whether the decision of Penfold J was a final or interlocutory decision. I will deal with this confusion below. This application was stamped as “filed” on 26 March 2013.
Also on 15 March 2013, the appellant lodged her affidavit in support of her application for leave to appeal out of time. The affidavit contains 220 numbered paragraphs over 32 pages. This affidavit was stamped as “filed” on 26 March 2013.
Further, on 15 March 2013, the appellant lodged an amended Notice of Appeal in the Court’s Registry. This amended notice of appeal, titled “notice of appeal Amended”, bears the seal of the Court of Appeal but does not bear the “lodged” stamp or the “filed” stamp.
On 27 March 2013, the appellant’s applications for leave to appeal to the Court of Appeal out of time and for leave to appeal to the Court of Appeal from the decision of Penfold J were fixed for hearing on 1 May 2013.
THE HEARING OF THE APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL
Accordingly, on 1 May 2013, the appellant’s applications for leave to appeal to the Court of Appeal out of time and for leave to appeal to the Court of Appeal came on for hearing before me. The appellant appeared without legal representation (as she had done before Ms Lennard, Mr Stefaniak and Penfold J). The respondent was represented by Ms Gasser.
The appellant, without really addressing the issue of the application for leave to appeal being out of time, told me that the application for leave to appeal was based upon grounds that Penfold J had:
(a)acted with bias;
(b)acted in bad faith;
(c)failed to provide a fair hearing;
(d)failed to consider all of the issues that she raised;
(e)rejected evidence which favoured her
and she provided to me a document of three pages containing 22 numbered paragraphs, to which was attached four court decisions:
(i)Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337;
(ii)SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 591;
(iii)SBAP v Refugee Review Tribunal [2002] FCA 590; and
(iv)SCAS vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397
upon which she relied, as summarised on a separate page.
Ms Glasser told me that the respondent objected to the appellant being granted leave to appeal out of time and being granted leave to appeal from an interlocutory decision because there is nothing to show that the appellant has any prospect of success on her appeal.
On 3 May 2013, the appellant “lodged” a letter of three pages, with two annexures, dated 3 May 2013 addressed to me, in the Court’s Registry, in which she wished to explain some of the comments that she made during the hearing on 1 May 2013 and to draw my attention to various paragraphs of her affidavit. On 6 May 2013, my Associate sent a copy of the appellant’s letter to Ms Gasser.
THE REASON FOR THE APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL
Section 37E(4) of the Supreme Court Act 1933 (ACT) requires that leave be given before an appeal from an interlocutory decision of a judge of the Supreme Court may be appealed to the Court of Appeal. Thus, the question “Is the decision of Penfold J a final decision or an interlocutory decision?” must be answered, because, if the decision is a final one, leave is not required, but, if it is an interlocutory one, then leave is required.
As was said by Refshauge J in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37 at [9]:
The question of whether an order is final or interlocutory is a notoriously difficult one and, while some general principles have been enunciated by the courts, they do not admit of easy application.
As to whether a decision is a final one or an interlocutory one, in Preston v Dukes [2012] ACTCA 29, the Court of Appeal said at [11]–[12]:
The usual test for determining whether an order is final or interlocutory is whether the order as made finally determines the rights of the parties in a principal cause pending between them: Re Luck (2003) 203 ALR 1 at 2 [4] per McHugh ACJ, Gummow and Heydon JJ. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order, otherwise it is an interlocutory order (see also the discussion by Rares J in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited (2008) 167 FCR 372 at 388-392 [46]-[63]; Donnelly v Maxwell-Smith [2010] FCAFC 154 at [12] per Bennett, Rares and McKerracher JJ).
A refusal of leave to appeal is refusal of permission by the Court for a party to institute proceedings by way of appeal in the Court: Collins v The Queen (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ; Coulter v The Queen (1988) 164 CLR 350 at 356 per Mason CJ, Wilson and Brennan JJ, 359 per Deane and Gaudron JJ; Smith Kline & French Laboratories (Australia) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. An application for leave to appeal from an order refusing leave to bring proceedings under s 86(3) of the Tribunal Act is necessarily an application for leave to appeal from an order that is interlocutory. That is because the order refusing leave decides no rights on a final basis.
I do not have any doubt that the decision of Penfold J given on 20 December 2012 was an interlocutory decision (see Hall v The Nominal Defendant ([1966] 117 CLR 423) and Licul v Corney (1976) 180 CLR 213) and that, therefore, the appellant required the leave of the Court of Appeal to appeal to that Court from the decision of Penfold J. Notwithstanding that I consider Ms Shammas to be required to be successful in an application for leave to appeal before she can in fact appeal the decision of Penfold J, she will continue to be referred to in this judgment as “the appellant”.
In order to obtain leave to appeal from an interlocutory decision of a judge of the Supreme Court to the Court of Appeal, the applicant for leave is required to show “that the decision of the primary judge was wrong and ... that substantial injustice will be done by leaving that erroneous decision unreversed” (Perry v Smith [1901] 27 VLR 66, per Williams J at 68; cited with approval in Niemann v Electronic Industries Ltd [1978] VR 431, or that “... in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court” (Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184, at 4186; applied in Heller Financial Services Ltd v Solczaniuk (1989) 99 FLR 304, at 317).
A helpful analysis of the relevant authorities is the judgment of Refshauge J in Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning and Land Authority [2008] ACTCA 9.
LEAVE TO APPEAL OUT OF TIME
As to her explanation for the late lodging/filing of her application for leave to appeal to the Court of Appeal from the decision of Penfold J, I accept that the appellant, before lodging/filing her Notice of Appeal on 2 January 2013, enquired of the Registry staff as to whether leave to appeal was required and that she was told that filing the Notice of Appeal was the appropriate step to be taken (see file note of 20 February 2013).
It is clear beyond doubt that the appellant wished to “appeal” from the decision of Penfold J to the Court of Appeal and I accept that, had she been given the correct advice, she would have lodged/filed an application seeking leave of the Court of Appeal to appeal to it from the decision of Penfold J within time.
Accordingly, I grant leave to the appellant to prosecute her application for leave to appeal although that application was lodged/filed out of time.
LEAVE TO APPEAL
I have great difficulty in discerning the ground or grounds upon which the appellant bases her application for leave to appeal to the Court of Appeal from the decision of Penfold J. It is one thing to recite, as the appellant did in her affidavit dated 15 March 2013, her written submissions handed to me on 1 May 2013 and her letter dated 3 May 2013, every complaint that she has about everything said or done by the students at the Institute, the investigation of her complaints by the staff of the Institute, and the results of the hearings before Ms Lennard, Mr Stefaniak and Penfold J, it is quite another thing to state a ground or grounds to show that “the decision of (Penfold J) was wrong” or that “the decision (of Penfold J) is attended with sufficient doubt to warrant it being reconsidered by (the Court of Appeal)”.
The appellant’s application for leave to appeal to the Supreme Court from the decision of Mr Stefaniak was heard by Penfold J over two days, 5 December 2012 and 11 December 2012. For the hearing, her Honour had, in addition to the transcription of the hearing before Mr Stefaniak:
(a)the appellant’s Amended Notice of Appeal dated 4 December 2012 setting out twenty-seven “questions of fact”, one “question of fact and law” and ten “questions of law”;
(b)the appellant’s affidavit sworn on 5 November 2012 containing 156 numbered paragraphs over 32 pages, to which 16 exhibits were annexed;
(c)the appellant’s further affidavit sworn on 4 December 2012 containing 556 numbered paragraphs over 75 pages, to which 18 exhibits were annexed;
(d)the appellant’s written submissions containing 155 numbered paragraphs over 16 pages lodged on 10 December 2012.
As the transcript (of 73 pages for 5 December 2012 and 41 pages for 11 December 2012) of the hearing reveals, much of the hearing was taken up by the appellant repeating at length to Penfold J what she had written in the various documents which were before her Honour, rather than by her putting submissions to her Honour.
Having read the transcript of the hearing before her Honour, I am convinced that Penfold J did everything that she could to give the appellant a fair hearing. The fact that the appellant, who is not a lawyer, does not understand the conduct of a hearing on an application for leave to appeal does not mean that the hearing was unfair.
The fact that the appellant believed that a particular circumstance existed and that Penfold J found that the particular circumstance did not exist or that another circumstance existed does not mean that her Honour acted with bias against the appellant or in favour of the respondent, or in bad faith, or without considering all of the evidence. A fair reading of her Honour’s decision reveals that her Honour, in a fair and balanced way, considered each of the issues of substance raised by the appellant.
I am convinced that there is nothing in the appellant’s complaints which shows that the decision of Penfold J is “wrong” or “attended with sufficient doubt to warrant it being reconsidered”. Indeed, I am convinced that the decision is correct and that an appeal from the decision does not have any prospect of success.
ORDERS
Accordingly, I make the following orders:
(a)I grant leave to the appellant to prosecute her application for leave to appeal to the Court of Appeal from the decision of Penfold J although that application was lodged/filed out of time;
(b)I refuse leave to the appellant to appeal to the Court of Appeal from the decision of Penfold J;
(c)I dismiss the appellant’s application for leave to appeal to the Court of Appeal from the decision of Penfold J; and
(d)I order that the appellant pay the respondent’s costs of the application for leave to appeal.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 2 December 2013
Counsel for the Appellant: The appellant appeared in person
Counsel for the Respondent: Ms S Gasser
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 1 May 2013
Date of judgment: 2 December 2013
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