Shammas v Canberra Institute of Technology
[2014] ACAT 5
•7 February 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHAMMAS v CANBERRA INSTITUTE OF TECHNOLOGY
(Discrimination) [2014] ACAT 5
DT 11/34
Catchwords: DISCRIMINATION – referral of complaint by the Human
Rights Commission - application to re-open a complaint in relation to vilification that was withdrawn from previous concluded discrimination proceedings before the Tribunal – whether the Tribunal was functus - claim that part of the complaint was withdrawn from earlier proceedings with a view to obtaining new evidence – claim that Applicant was under security surveillance - principles guiding Tribunal for determining grant of application to re-open a case: interests of justice – whether Applicant seeking to re-contest evidence before original Tribunal and its decision and findings - no current proceedings in the Tribunal – whether Tribunal is precluded from hearing application on the grounds of estoppel – whether application is an abuse of process – Anshun estoppel: prevention of claim that should have been raised in earlier proceedings – right to apply to strike out an application
Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 9, 11, 22,
24, 27, 32, 45, 57, 88 and 89Human Rights CommissionAct2005, s 53A
Regulations: ACT Civil and Administrative Tribunal Procedural
Directions 2010 (No.1), Direction 45Cases:Bakarich v Commonwealth Bank of Australia
[2010] NSWCA 314Bienstein and Commonwealth Ombudsman
[2003] AATA 1197
Blair v Curran (1939) 62 CLR 464
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45
Multiplex Constructions Pty Limited v Irving (No 2)
[2005] NSWCA 1
Port of Melbourne Authority v Anshun Pty Ltd
(1981)147 CLR 589Shammas v Canberra Institute of Technology
[2012] ACTSC 197
Shammas v Canberra Institute of Technology
[2014] ACAT 2Urban Transport Authority of NSW v Nweiser
(1992) 28 NSWLR 471Walton v Gardiner (1993) 177 CLR 378
Tribunal: Ms E. Symons - Presidential Member
Date of Orders: 7 February 2014
Date of Reasons for Decision: 7 February 2014
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL
DT 11/34
BETWEEN:
BAN MANSOOR MIKHAEL SHAMMAS
Applicant
AND:
CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
TRIBUNAL: Ms E. Symons - Presidential Member
DATE:7 February 2014
ORDER
1. The Applicant’s application to re-open matter DT 11/34 referred to in the Note to the Orders made on 10 February 2012 is dismissed.
2. The order made in paragraph 4 of the Orders dated 27 June 2013 is vacated.
………………………………..
Ms. E. Symons
Presidential Member
REASONS FOR DECISION
The following reasons for decision explain why the Tribunal has concluded that the Applicant’s application filed on 29 May 2013 to re-open matter DT 11/34 is dismissed.
Essentially, the Tribunal has concluded that it is functus in respect of the complaint referred to it by the Human Rights Commission (HRC), pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). This means that once the Tribunal has decided a subject matter on the basis of certain facts before it, the Tribunal’s jurisdiction is exhausted in relation to any issues or claims that were, or that could have been, raised in the previous proceedings.
The Tribunal also concluded, had it not determined the application as set out in the previous paragraph, that there are no proceedings in the Tribunal in which an ‘application for interim or other orders’ can be brought, that issue estoppel applies and that the application to re-open proceedings was an abuse of process and should not be granted as doing so would be contrary to the Anshun[1] principle.
Preliminary
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981)147 CLR 589
The Applicant made a number of complaints of discrimination against the respondent to the ACT Human Rights and Discrimination Commissioner. She requested that these complaints be referred to the ACT Civil and Administrative Tribunal (the Tribunal) pursuant to section 53A of the HRC Act. Her complaint[2] which was lodged on 5 January 2011, became DT 11/18 in the Tribunal. Two other complaints, upon referral to the Tribunal, became DT 11/30[3] and DT 11/34. DT 11/34 was a victimization and vilification complaint in the area of education on the ground of race.
[2] Discrimination complaint against CIT, namely, Ms Esser and Mr Heugh
[3] Discrimination complaint against the CIT, namely, Mr Fowler
On 13 January 2012 the Applicant made an official request to the Tribunal to withdraw that part of DT 11/34 that related to “discrimination by way of vilification”. She filed, on 24 January, 2012, an application for interim or other orders to discontinue DT 11/30 and that part of DT 11/34 that relied on the ground of vilification. The Respondent’s representatives filed a letter dated 1 February 2012 with the Tribunal agreeing to the discontinuance of that part of the applicant’s complaint which had been referred to the Tribunal and the discontinuance of DT 11/30.
On 10 February 2012, the General President made the following orders by consent:
1. Upon the applicant giving notice that she discontinues application DT 11/30, the application is dismissed.
2. The address of potential witnesses provided by the respondent to the Tribunal not be disclosed or made available for viewing by the applicant.
The tribunal notes that:
1. The applicant has given notice that she withdraws that part of the complaint in application DT 11/34 that alleges that the respondent has engaged in unlawful vilification in relation to her.
The Applicant’s complaints, DT 11/18 and the remainder of DT 11/34, were heard on 15, 16 and 17 February 2012.
On 24 February 2012, the Applicant sought leave to re-open that hearing. On 5 March 2012, the Tribunal heard the application to re-open the hearing. The Application was denied.
On 8 March 2012, the Tribunal handed down its decision and dismissed DT 11/18 and DT 11/34. The transcript of the decision was provided to the parties on 5 April 2012 and on 7 May 2012, the Reasons for Decision in relation to DT 11/18 and DT 11/34 were provided to the parties.
On 4 April 2012, the Applicant appealed against the order of the Tribunal to the appeal division of the Tribunal. President Stefaniak heard her appeal and dismissed it. On 5 November 2012, the Applicant appealed that decision to the ACT Supreme Court. Under section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), an appeal to the Court is only available on a question of fact or law and is only available by leave. On 20 December 2012, Penfold J refused to grant leave to appeal.[4]
[4] Shammas v Canberra Institute of Technology [2012] ACTSC 197
On 2 January 2013, the Applicant lodged a Notice of Appeal from the decision of Penfold J in the Registry of the Court of Appeal. On 15 March 2013, the Applicant lodged an amended Notice of Appeal and an application in the Court of Appeal’s Registry seeking leave of the Court of Appeal to appeal to it from the decision of Penfold J. At the same time she lodged a further application in the Court of Appeal’s Registry seeking leave to appeal out of time. On 2 December 2013, Nield AJ made 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 appellants 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.
The present application
On 29 May 2013, Ms Shammas lodged an Application for Interim or Other Orders with the Tribunal and sought:
An order to re-open application No. DT 11/34 to reinstate the withdrawn part related to vilification;
Any other orders the Tribunal considers appropriate.
On 26 June 2013, the Applicant lodged “submissions and evidence”. This included an eight page document entitled “The ground why asking for this application to reinstate”, three letters to her from Inspector-General of Intelligence and Security (IGIS), two witness statements of Christine Esser (nee Mico), Head of Counselling and Equity CIT,[5] dated 10 November 2010 and 2 March 2011, witness statement Scott O’Connell dated 16 November 2011, unsigned Affidavit of Ban Shammas dated 25 June 2012 and the In Chambers Order in DT 11/34 dated 10 February 2012.
[5] Canberra Institute of Technology
On 27 June 2013, the Tribunal made orders in relation to the parties filing material in relation to the Applicant’s application to re-open DT 11/34 and to reinstate her complaint of vilification.
The parties agreed, on 27 June 2013, that the application to re-open DT 11/34 be determined on the papers after the parties had filed their material in accordance with the orders made that day.
On 11 July 2013 the Applicant filed her Statement of Facts and Contentions (SOFC) and the following list of annexures as described by the Applicant:
AFile Note of Ms Esser “documented formal complaint”
BEvidence of ASIO[6], including letter from Hon Chris Bowen – Letter form (sic) the Immigration Office (DIAC) – letters from IGIS – registered mail confirmation of delivery to ASIO office – affidavit signed by the applicant - letter from the Attorney General Office.
COral evidence of Sandiya King
D.Evidence that CIT representatives changed the questionnaire sent to students on behalf of the applicant + evidence from transcript that phone calls received by Ms Gasser and Ms Bayer during the hearing
EWitness statement of Scott O’connel (sic)
FWitness statement of Ms Ranjini
GPart of transcript of hearing the appeal of the original application on
2 August 2012.[6] Australian Security Intelligence Organisation
On 15 July 2013 the Applicant filed a further document entitled “Decisions Sought” in which she stated that she sought the following decisions:
1.The CIT acted inconsistently with the applicant’s rights under the Human Rights Act and caused a breach of the applicant’s privacy and attacked her reputation.
2.The CIT has acted inconsistently with the applicant’s rights under the Discrimination Act section 66 vilification, and caused injury and loss to the applicant.
3.As a result of the actions of the CIT staff; the CIT is to re-open the investigation into the breaches of the applicant’s privacy and other breaches committed against her under the DA to take such appropriate steps to make some changes in CIT policy or to enroll its staff in some courses to increase their awareness to comply with the law as public authority.
4.As a result of the actions of the CIT the applicant has suffered the following damages & losses that the CIT is ordered to pay to the applicant.
The Applicant then set out the “Damages and Remedies” she sought; namely
a.damages for injury to reputation and breach of privacy,
b.aggravated damages,
c.exemplary damages,
d.compensatory damages,
e.general damages for pain and suffering and for psychological shock and health damages,
f.economic loss “Special damages”, and
g.gratuitous care.
On 1 August 2013, the Respondent filed its submissions on its position in relation to the “Reopening” of DT 11/34. The Respondent stated the following in the summary of its position:
1.The Respondent submits, with respect, that the Tribunal does not have the jurisdiction to hear the current application made by the Applicant to‘re-open’ that part of DT 11/34 that she previously withdrew.
2.The Respondent submits that there is no ‘proceeding’ in which the Applicant’s purported ‘application for interim or other orders’ can be brought.
3.The Respondent makes this submission after reflection on the nature of the Applicant’s current application and the process by which DT 11/34 was brought before the Tribunal for determination.
4.If the Tribunal determines that it does have jurisdiction to hear the application, the Respondent submits that the Applicant’s application to re-open those parts of DT 11/34 that she previously withdrew should be refused on the following grounds:
a. the Tribunal is precluded on the grounds of issue estoppel;
b. that doing so would be an abuse of process; and
c. that doing so would be contrary to the Anshun principle.
5.If the Tribunal determines it is not precluded by those grounds outlined at paragraph 4 (a) - (c) above, the Respondent seeks to reserve the right to file a strike out application on the basis that the application is frivolous and vexatious.
The Respondent seeks orders that the Applicant’s application be dismissed.
The Applicant filed her response to the Respondent’s submissions, on 15 August 2013. The Tribunal summarises her submissions as follows:
(a)In relation to the submission that there is no proceeding in which her purported application for ‘interim or other orders’ can be brought, she stated that section 88 of the ACAT Act established the Tribunal; sections 9 and 11 of the ACAT Act permit a person to apply to the Tribunal if an authorising law so provides subject to any condition stated in the authorising law; pursuant to section 22 of the ACAT Act, the Tribunal has the same jurisdiction and powers as the Magistrates Court Act 1930, part 4.2; section 24 of the ACAT Act provides that the Tribunal may make rules in relation to practice and procedure; section 27 of the ACAT Act provides that an authorising law may set out procedures for dealing with an application; section 57 of the ACAT Act provides that an authorising law may set out the powers of the tribunal and the decisions it may make on an application made under the authorising law; and subsection 89(6)(b) of the ACAT Act enables her to bring an application for interim or other orders in which she is seeking an order of a procedural nature.
(b)The Applicant complied with the Court Procedures Rules 2006, under the authorising law, in making her application to reinstate the discontinued part of DT 11/34; that pursuant to direction 45 (Restoration of proceedings) of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1) made under Rule 6 of ACT Civil and Administrative Tribunal Procedural Rules 2009 (No 2) the Tribunal may order that a proceeding be restored if the proceeding has been discontinued.
(c)Issue estoppel does not apply because Ms Lennard’s decision of 8 March 2012 does not bind the present application; Ms Lennard’s decision is invalid and has jurisdictional errors, was biased in favour of the Respondent, made in bad faith and all the factual findings in it are invalid.
(d)Ms Lennard’s decision was not binding in relation to the application to reinstate the ‘vilification’ part of DT 11/34 because the Applicant adduced more evidence in the Tribunal’s appeal division relating to Australian Security Intelligence Organisation (ASIO) surveillance of her when she was a student at the Canberra Institute of Technology (CIT) Southside. The Applicant also adduced evidence at the first hearing which she said proved the cooperation between ASIO and the CIT.
(e)The Applicant produced evidence at the hearing of her appeal to prove bias by Ms Lennard and President Stefaniak, interference by ASIO in the hearing, and ASIO’s cooperation with the ACT Government Solicitors (sic) and judges[7] in ACAT to disadvantage her as she was unrepresented.
[7] i.e. members of the ACAT
(f)A decision involving jurisdictional error lacks legal foundation and is properly regarded in law as no decision at all.
(g)No final decision was made in relation to the ‘vilification’ complaint because that part of the complaint was discontinued by consent.
(h)There is no abuse of process because the vilification part of DT 11/34 was discontinued by consent and was not discussed in the earlier proceedings; the Applicant has evidence in relation to ASIO,[8] which was not available at the first hearing as well as evidence that the Respondent produced a misleading affidavit in the first hearing and that the Respondent’s witnesses were not saying the absolute truth under oath.
(i)In relation to the Respondent’s submission that the Tribunal should invoke the Anshun principle, the Applicant states that the Applicant had withdrawn that part of the complaint to obtain more evidence to prove vilification, not because she had accidentally omitted part of her case or was negligent or inadvertent.
(j)In relation to the Respondent’s submission that they reserve the right to file a strike out application on the basis that the application is frivolous and vexatious, the Applicant states that she now has all the evidence to prove vilification and that it is important in order to discuss the incident of vilification in the Tribunal to serve justice and to deter the Respondent from allowing the same to happen in the future.
(k)Because the vilification part of DT 11/34 was discontinued by consent, it is probable and expected by the Respondent and the Tribunal that the withdrawn part will be re-opened.
(l)In relation to the submission that the Applicant could re-make the vilification complaint to the HRC, the Applicant submits that the HRC has no power to deal with it again as the complaint became subject to the ACAT Act and the tribunal’s powers under the authorising law since the HRC referred the complaint to the tribunal.
(m)The application to reinstate part of DT 11/34 was initiated by the Applicant according to the ACAT Act and the tribunal’s powers under the authorising law and the Court Procedures Rules 2006, not the Court Procedures Act 2004 as the Respondent alleged.
Consideration
[8] i.e. The Applicant refers to alleged ASIO surveillance of her.
In Council of the Law Society of the Australian Capital Territory v The Legal Practitioner, [9] the Tribunal considered the principles which should guide the Tribunal in determining whether to grant an application to re-open a case. That Tribunal said that these principles were usefully stated in Urban Transport Authority of NSW v Nweiser[10] (“UBA”) by Clarke JA (with whom Mahoney and Meagher JJA agreed)[11]:
The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place …
[9] [2010] ACAT 45
[10] (1992) 28 NSWLR 471
[11] at 478
The present application to re-open was lodged after DT 11/34 was heard and decided at first instance and on appeal in the Tribunal, and subsequently heard and decided by the ACT Supreme Court and after the Court of Appeal hearing. After the Application was filed, the ACT Court of Appeal delivered its reasons for judgment on 2 December 2013. This is not an instance of the Applicant seeking to re-open her case after she has given her evidence or after both parties have given their evidence and before a decision has been made at the initial hearing, or after a matter has been heard but before final orders have been made and entered.
In Bakarich v Commonwealth Bank of Australia[12] the Court in considering the principles to be applied in an application to re-open the hearing of an appeal referred to and adopted the following discussion by Ipp JA in Multiplex Constructions Pty Limited v Irving (No 2)[13]:
[12] [2010] NSWCA 314 [7]
[13] [2005] NSWCA 1 at [15] – [24]:
…[18]......In this regard, Brennan J (at 309) in Auto Desk Inc v Dyason
(No 2) [(1993) 176 CLR 300] observed:It is one thing to reopen an appeal after judgment if the Court has reached a conclusion by adopting a proposition of fact or law which the unsuccessful party has not had an opportunity to argue. In that event, natural justice is denied and it can be said that the Court's jurisdiction to hear and determine the matter is not exhausted. But that is not the present case. Here the ground on which the appeal was determined had been argued in the courts below and had been the subject of submissions in this Court. The appeal was determined after it was fully heard. That being so, I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law. In University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 (at 483) this Court said:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The decision of this Court in the present case was not given in ignorance or forgetfulness of some statutory provision or of some critical fact. To entertain an application to reopen an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.
[19] Dawson J (at 317) expressed similar views and cited Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 (at 684). His Honour stressed that the jurisdiction to reopen a judgment that had been pronounced would be exercised cautiously, bearing in mind the public interest in the finality of litigation.
[20] In Wentworth v Woollahra Municipal Council the High Court said (at 684) that the circumstances in which the Court would reopen a judgment which it had pronounced were "extremely rare" and "[t]he public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution".[21] The English Court of Appeal in Robinson v Fernsby [2003] W.T.L.R 529 has recently considered the scope of the Court's discretion to reopen a judgment already handed down. In that case, May LJ followed the majority in Stewart v Engel (2000) 3 All ER 518 where it was held that the exercise of the jurisdiction required proof of exceptional circumstances. May LJ pointed out:
Once a judgment has been handed down or given, there are obvious reasons why the Court should hesitate long and hard before making a material alteration to it.
The "obvious reasons" to which his Lordship referred involved the strong public interest in the finality of litigation.
[22] In Robinson v Fernsby May LJ said, further:The cases also acknowledge that there may very occasionally be circumstances in which a judge not only can, but should make a material alteration in the interests of justice. There may for instance be a palpable error in the judgment and an alteration would save the parties the expense of an appeal. On the other hand, reopening contentious matters or permitting one or more of the parties to add to their case or make a new case should rarely be allowed. Any attempt to do this is likely to receive a summary rejection in most cases. It will only very rarely be appropriate for parties to attempt to do so. This necessarily means that the Court would only be persuaded to do so in exceptional circumstances, but that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case.
The Tribunal has considered the Applicant’s submissions that there were jurisdictional errors including denial of justice and deliberate bias to the Respondent in the decision by Senior Member Lennard. She had previously raised this or very similar arguments in her appeals, all of which have been unsuccessful. The Tribunal is not satisfied that the Applicant has established palpable error (as referred to in the previous paragraph) in the decision made in relation to application DT 11/34.
It appears to the Tribunal that the Applicant is now seeking to reopen contentious matters by adding to her case, or making a new case. She chose to withdraw the vilification component of DT 11/34. It had been referred to the Tribunal by the HRC together with her victimisation complaint. She maintains her belief that she has been subjected to ASIO surveillance and that ASIO has cooperated with the CIT. She submits that she has evidence that proves ASIO surveillance of her notwithstanding that at the original hearing and at each level of appeal thereafter, her case has been presented and decisively rejected. In fact, the Tribunal notes that Penfold J made the following observation in relation to this claim in her decision[14]dated 20 December 2012:
72. As noted, the bulk of Ms Shammas’s submissions in this matter have related to alleged surveillance of her by ASIO, and the alleged involvement of ASIO in directing or influencing the conduct of both students and staff at CIT, as well as the conduct of Senior Member Lennard and President Stefaniak. I have formed the impression that, however sincerely held were Ms Shammas’s initial concerns about the treatment she felt she was receiving in her CIT classes, her current aim is to air her allegations about ASIO as often as possible in whatever forum might be available.
[14] Shammas v Canberra Institute of Technology [2012] ACTSC 197 at [72]
The Applicant’s original complaint[15] was of both vilification and victimisation and relied on the same details for both. In the document entitled “The ground why asking for this application to re instate” lodged with the Tribunal on 26 June 2013, the Applicant stated [16] that the cause of action of vilification “was the applicant’s condition under surveillance because of her race and its attributes being from the Middle East and Iraqi and the discrimination, the reckless breach of her privacy and defamation she suffered consequently. She further stated[17] that the evidence of vilification she will rely on is “Evidence of ASIO’s interest in the Applicant” and then set out, as follows, very similar submissions to those she made in relation to her victimisation complaint[18]:
The applicant obtained evidence proves beyond reasonable doubt that she has been subjected to ASIO again following to her arrival in Australia because of her race being from Iraq and the Middle East; the Applicant passed ASIO’s normal check before she came to Australia and granted the permanent residency.
The evidence ‘being under ASIO’ supports the applicant’s version of the story where she advised in her formal complaint to CIT authority, that her privacy has been breached by this agency and CIT staff cooperated with ASIO by interrogating students she was in touch with to report her activities, conversations and movements to ASIO’s employees as part of their investigation about her.
It also proves that CIT staff utilized the applicant’s condition under ASIO and the reckless invasion of her privacy by employees in that agency and they breached her privacy to other students to achieve CIT aims to single her out and ostracized her, to make her leave the full time classes for that current course and delete the idea to do the Diploma and to leave the whole campus, following to her dispute with the education manager Mr Heugh because of the double discrimination she suffered by him because of her condition under ASIO also to bias other students who cooperated with CIT staff to harass the applicant because of her condition under that agency.
The incident of vilification was to retaliate from and victimized the applicant because she accused CIT camera and security staff of running everything in-cooperating with others ‘ASIO’ by breaching her privacy and instruct students to harass and bully her on CIT ground, also because CIT staff were aware that the applicant would affect complaint of discrimination and privacy against them.” [Tribunal’s underlining]
[15] Lodged with the HRC on 9 September 2011
[16] at page 8
[17] at page 3
[18] at page 4
The Applicant attached the evidence about ASIO she would like the Tribunal to consider. This comprised letters to her from IGIS dated 9 January 2012, 7 February 2012 and 26 April 2013, a letter to her from the Attorney General’s Department dated 8 January 2013 and a letter to her from the Minister for Immigration and Citizenship dated 14 February 2012, which responded to the Applicant’s letter that alleged “breaches of privacy by staff of my Department and …a release of [the Applicant’s] file.” The Applicant also attached a letter to her from the Department of Immigration and Citizenship dated 30 April 2012 in relation to her Freedom of Information (FOI) request. She also enclosed a Registered Post Lodgment Receipt dated 8 March 2011 for an article addressed to ASIO and a letter to her from Australia Post, dated 10 December 2011, advising her that the registered article posted on 8 March 2011 was delivered on 9 March 2011.
The IGIS letters were in response to her letter and phone calls in which she made a number of complaints and allegations including that ASIO hid surveillance cameras in her house without a warrant and breached her privacy. The first letter stated that “ASIO does not undertake its work in the way you have described” and “..[t]he Inspector General’s policy is neither to confirm nor deny whether a person is, or has been, the subject of investigation by ASIO. However, if you are not engaged in any risks to the security listed [above in the letter], you can be confident that ASIO would have no interest in you.”
The second letter from IGIS reiterated that the Applicant can be confident that ASIO would not have ongoing interest in a person unless they were engaged in acts that pose a risk to the security of Australia. The third letter from IGIS returned the Applicant’s USB thumb drive and advised her that having considered her written material and in light of previous contact, it had been assessed that no action is necessary.
It is clear to the Tribunal that the Applicant misunderstands the content of the ASIO letters and the Registered Post documentation when she alleges that these documents are evidence which prove that she has been subjected to ASIO surveillance since her arrival in Australia. The letters do no more than state that ASIO’s policy is neither to confirm nor deny whether a person is or has been under investigation. They are not evidence that prove beyond reasonable doubt, or even on the balance of probabilities, that the Applicant has been subjected to ASIO surveillance since she arrived in Australia. She relied on the first two of these letters in her victimization complaint in DT 11/34. They add nothing new. They have already been considered.
The letter from the Department of Immigration and Citizenship (DIAC ) attached a Schedule of Documents listing the documents on the Departmental files which DIAC had agreed to release concerning the Applicant and members of her family which fell within the scope of her FOI request. The Applicant’s FOI request sought access to the following documents:
I request for access to any and all the files hold about me by the Department of Immigration including written reports, records, archived documents and any personal information for the period I stayed in Jordan first refugee country and since my arrival to Australia on 15 November 2009.
Of the 188 folios in the Applicant’s file DIAC determined not to release folio 136, a Medical Referral Transmission list[19], folios 157-159 being documents containing information from an intelligence agency document (exempt in full - section 7(2A) of the Freedom of Information Act 1982 (Cth) (the Cth FOI Act) and folio 174 being Immigration Records Information System (IRIS) case notes, including information from an intelligence agency document (exempt in part – section 7(2A) of the Cth FOI Act.). The DIAC letter enclosed an extract from DIAC’s LEGEND data base so the Applicant could understand the types of information that DIAC receives from intelligence agencies and stated “In short, the extract is from the Public Interest Criteria (PIC) 4002, the security requirement, which requires DIAC ensure that visa applicants are not a risk to security.”
[19] Determined to be partially out of scope pursuant to section 22(1)(a)(ii) of the Freedom of Information Act 1982 as it related to other members of the Applicant’s family
It appears to the Tribunal from the above information that the four exempted pages of the documents obtained by the Applicant under FOI probably contained information which had been obtained when the Applicant was applying for a visa. There is nothing in the DIAC documentation which the Applicant provided to the Tribunal that supports her contention that this is evidence that she has been subjected to ASIO surveillance after she was granted a visa and while she was studying at the CIT.
The Applicant also attached a file note of “formal complaint” and a witness statement of Ms Esser (formerly Ms Mico), both of which were in evidence in the original hearing. The Applicant stated that she wanted to subpoena, “as new evidence” the “audio and/or audio-visual recordings for her meeting with the Counsellor Ms Esser in the counselling room on 26 October 2010 and
9 November 2010 and the audio-visual recording in classroom B 102 on 9 and
11 November 2010”. The issue of whether or not the CIT recorded classes and/or particular rooms, including the counselling room, was canvassed at the original hearing. That Tribunal accepted the CIT evidence that no such recordings were made. That issue has been decided. Those recordings do not exist and, according to the evidence, never existed. They cannot be relied upon “as new evidence”. The Applicant also stated she wanted Mr O’Connell’s witness statement in the previous proceeding reconsidered and for the Tribunal to reconsider the oral evidence of Ms Sandiya King.Essentially, it appears that the Applicant wants to recontest all of the evidence before the original Tribunal and the Tribunal’s findings and decision under the guise of re-opening her vilification claim. It is clear that the Applicant did not accept the original decision as she has appealed that decision three times. While the decision of the Court of Appeal had not been handed down at the time the submissions were filed, that decision was handed down on 2 December 2013. The position now therefore, is that all of the Applicant’s appeals have been unsuccessful.
The Tribunal is not satisfied that the Applicant will ever accept the decisions of the Tribunal and the ACT Courts. The Tribunal adopts Penfold J’s observations above.
There is nothing in the material filed by the Applicant on 26 June 2013 or subsequently, that would persuade the Tribunal that the evidence she proposes to rely on in a vilification claim is so different from the material already considered by the Tribunal in the victimisation claim, that her application to re-open should be granted. That claim was dismissed. Apart from the third IGIS letter and the DIAC letter (which the Tribunal has considered above), there is no new evidence. The Applicant herself, refers to both vilification and victimisation (see underlining in paragraph 25 above) in the material she has provided in support of her application to re-open DT 11/34. It appears to the Tribunal, having considered all of the available material, that the result in DT 11/34 would have been the same even if the Applicant had not withdrawn the vilification claim.
The Anshun principle, which the Tribunal will return to below, requires a party to litigation to bring all claims that relate to the same set of facts at the same time. Apart from the assertion that the Applicant wanted to get more evidence for her vilification claim, which the Tribunal has considered above, there is nothing on the Applicant’s file that indicates why she withdrew the vilification claim.
The Tribunal now turns to the Respondent’s submissions.
The Respondent’s submissions
The Tribunal has considered each of the Respondent’s submissions and the Applicant’s reply, below.
Does the Tribunal have jurisdiction to re-open a part of a proceeding she withdrew?
As the Tribunal is established by legislation, its power to decide matters must be found expressly or by implication in the legislation.[20] While merits review exists for persons whose interests are affected by a decision, an applicant may challenge, and the Tribunal may review, only those decisions that are identified as reviewable decisions in an authorising law[21].To determine whether the Tribunal has jurisdiction, the Respondent submits[22] involves a two step inquiry, firstly, identifying precisely the action said to constitute the decision and secondly, identifying precisely whether that action falls within the set of reviewable decisions in the empowering statute.[23]
[20] Respondent’s Submissions, at [7]
[21] Respondent’s Submissions of 1 August 2013, at [8]
[22] Respondent’s Submissions of 1 August 2013, at [9]
[23] Bienstein and Commonwealth Ombudsman [2003] AATA 1197
Section 9 of the ACAT Act provides:
9Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
NoteA registrar may help a person make an application to the tribunal as the registrar considers appropriate—see s 112 (1) (b).
The authorising law in this matter was section 53A of the HRC Act which states:
53AReferral of discrimination complaints
(1)This section applies if—
(a)either—
(i)a complainant is given a discrimination referral statement under section 45 (2) (d); or
(ii)a statement under section 82 (1) is included in a final report in relation to a complaint; and
(b)within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.
(2)The commission must—
(a)refer the complaint to the ACAT; and
(b)tell the complainant and the person complained about in writing about the referral.
NoteThe commissioner must also close the complaint (see s 78 (2) (d)).
The Respondent submits that it is clear that the authorising law permits a referral to the Tribunal by the HRC. It does not permit an application to the Tribunal by a complainant. The Applicant’s vilification and victimization complaint was referred to the Tribunal by the HRC; the vilification ground of the complaint was part and parcel of that complaint, not a separate complaint. The Applicant unilaterally chose to withdraw that part of the complaint. That was her choice. The complaint referred by the HRC was finalized. There is no work left for the Tribunal to do. The Applicant is bound by that decision. The Tribunal is functus in respect of the matter referred to it by the HRC.
The Applicant takes issue with all of the submissions in the preceding paragraph. The Tribunal has summarised her submissions in paragraph 19 (a) and (b) above.
The Tribunal is satisfied that section 53A of the HRC only permits the Tribunal to determine matters which have been referred by the HRC. As the result of its decision in DT 11/34, the Tribunal is now functus in relation to the Applicant’s complaint which the HRC referred to the Tribunal. The Tribunal concurs with the Respondent’s submissions.
The Tribunal does not have jurisdiction to hear the Applicant’s application to re- open the vilification part of her complaint. The Applicant’s application will not be granted.
Given the Tribunal’s finding in relation to jurisdiction it is not strictly necessary for the Tribunal to consider the Respondent’s other submissions. However, given that both parties have provided the Tribunal with their submissions, the Tribunal will consider the remaining submissions.
The Respondent’s submission that there are no proceeding in the Tribunal in which an ‘application for interim or other orders’ can be brought.
The Applicant relies on subsection 89(6)(b) of the ACAT Act alleging that she is seeking an order of a procedural nature.
It is not in dispute that the Applicant is seeking an order of a procedural nature, however, the Tribunal is satisfied that there is no primary application or any other proceedings before the Tribunal in which the Tribunal could consider an application for interim or other orders that seeks an order of a procedural nature. The Applicant’s application fails on this ground.
Is the Tribunal precluded from hearing the application for interim or other orders on the grounds of issue estoppel?
The Respondent referred the Tribunal to the High Court decision in Blair v Curran[24] in which Dixon J said-
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared…..
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. …..
In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter [119 E.R. 288, at p. 293] the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
[24] (1939) 62 CLR 464, pages 531-532
The Tribunal refers to the Applicant’s submissions in paragraph 19(c) - (f) above. Suffice it to say that the Applicant has appealed Senior Member Lennard’s decision and each appeal has been dismissed. It appears to the Tribunal that the Applicant is yet again alleging that Senior Member Lennard’s decision was erroneous. It is immediately apparent that the matters raised by the Applicant were the ingredients in the complaint alleging both vilification and victimisation; they were considered and actually decided as the groundwork of the decision by the Original Tribunal in determining the victimisation complaint. They cannot be raised again by the Applicant in proceedings against the Respondent. Issue estoppel applies.
The Tribunal is satisfied that it is precluded from hearing the application for interim or other orders on the grounds of issue estoppel. The Applicant’s application fails on this ground.
Is the Application to re-open DT 11/34 an abuse of process?
The Respondent submits[25] that the application to re-open should be stayed if its continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The Respondent relied upon the statement of Mason CJ, Deane and Dawson JJ in the High Court decision of Walton v Gardiner[26].
[25] Respondent’s submissions at page 2, footnote 2.
[26] (1993) 177 CLR 378 - proceedings before a court should be stayed as an abuse of process if, ... their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings
The Applicant submits[27] that there is no abuse of process as the withdrawn part of DT 11/34 (vilification) has been officially discontinued by the consent of the parties and order of the Tribunal. It has not been discussed in earlier proceedings. She alleged that the ASIO evidence was not available at the first hearing and that the CIT evidence included a misleading affidavit and the evidence given was not absolutely truthful.
[27] Applicant’s Submissions in Reply at [23]
An application to dismiss proceedings on the grounds of abuse of process is an interlocutory proceeding, and, in determining it, there is no opportunity for the full ventilation of relevant issues at the hearing. Such an application requires a high standard to be met. The power to dismiss a complaint summarily should only be exercised with ‘exceptional caution and only if the circumstances clearly warrant it’. The Tribunal must observe natural justice and procedural fairness.
All of the matters raised by the Applicant in response to the Respondent’s submission that the Application should be dismissed as an abuse of process have been pursued through the various appeals. The Tribunal has already determined that the evidence identified by the Applicant is either not new evidence or evidence that, notwithstanding the Applicant’s strongly held beliefs to the contrary, is not capable of supporting the Applicant’s allegations.
It appears that the Applicant will not accept that the various decision makers have not found in her favour. It also appears to the Tribunal that the Applicant continues, unreasonably in light of the evidence, to maintain her beliefs that the Respondent has recorded classes and counselling sessions and that the Respondent’s witnesses misled the Tribunal and did not tell the absolute truth. The Respondent is so fixed in her beliefs, that she has closed her mind to the possibility that she could be mistaken. This is regrettable.
Had the Tribunal not found issue estoppel applies in this matter, the Tribunal would have been satisfied, having considered all of the matters before it, that the Application to re-open should be stayed as its continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The Applicant’s application would also fail on this ground.
Should the Applicant’s application be refused on the ground that doing so would be contrary to the Anshun[28] principle?
[28] Port of Melbourne Authority v Anshun Pty Ltd (1981)147 CLR 589
The High Court, in Port of Melbourne Authority v Anshun Pty Ltd, laid down the principles which came to be known as ‘Anshun estoppel’. Essentially, a party can be prevented from making claims which should have been pursued in earlier proceedings.
The test laid down is one of reasonableness. The cause of action must be one that could have been raised in the previous proceeding and it must appear that the same or substantially the same facts will arise for consideration in the second proceeding as arose in the first proceeding and it was unreasonable for the party not to raise that cause of action in the first proceedings.
Expressed another way, the idea is not whether the claim could have been brought up in the earlier proceeding, but whether it was so relevant that not to include it was unreasonable.[29] If it is unreasonable, that party may be estopped, or prevented from doing so, effectively losing the right to make that claim at all.
[29] Champerslife v Manojlovski [2010] NSWCA 33
The Applicant submitted that the Anshun principle did not apply to her application for the reasons set out in paragraphs 19(i) above. She maintained that the ‘vilification’ incident had no relevance to the grounds and incidents discussed in the Tribunal hearing in February 2012.
What the Applicant has overlooked is the test of whether it was unreasonable for her not to proceed with the vilification claim which was part and parcel of the complaint referred by the HRC.
The Applicant submitted that she had withdrawn the vilification claim to obtain more evidence of the vilification. Nevertheless, the Applicant included the vilification and victimisation complaints in the same complaint to the HRC. She was then content for those complaints to be considered together by the HRC. The Tribunal has already found that the evidence the Applicant identified in her submissions as supporting her vilification complaint is either not new evidence or, notwithstanding her strongly held belief, is not evidence of what she claims (that ASIO has her under surveillance) nor is it capable of supporting the Applicant’s vilification claim.
The Applicant was required to bring forward her whole case when the complaint was referred to the Tribunal, as indeed are all litigants. Apart from telling the Tribunal that she had withdrawn the vilification complaint in order to get evidence, which the Tribunal has dealt with above, the Applicant has not provided any evidence that would persuade the Tribunal that there are special circumstances which would justify the same parties opening the same subject of litigation which could have and should have been brought forward as part of the original litigation.
The Tribunal is satisfied that the vilification claim was so relevant to the victimization complaint, that not including it in the earlier proceedings was unreasonable. The Applicant’s application would also fail on this ground.
Whether the Respondent should be granted the right to file a Strike-Out Application on the basis that the Application is frivolous and vexatious pursuant to section 32 of the ACAT Act.
Section 32 of the ACAT Act states:
32Frivolous and vexatious applications
(1)This section applies if—
(a)the tribunal considers an application is frivolous or vexatious; or
(b)a person who has made an application to the tribunal has been dealt with as frivolous or vexatious by a court or tribunal in Australia.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application;
(b)dismiss the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
The Tribunal notes that section 32 provides that the Tribunal may, on its own initiative or on the application of a party refuse to hear the application, dismiss the application or make directions in relation to subsequent applications. The Tribunal has considered such an application in a decision between the same parties in Ban Shammas v Canberra Institute of Technology.[30]
[30] [2014] ACAT 2
Suffice it to say that if the Respondent had not been successful on any of the above grounds,, given the matters set out above the Tribunal would have considered an application from the Respondent to file a strike-out application.
CONCLUSION
The Tribunal is satisfied, having considered all of the maters before it, and for the reasons set out above, that the Application for Interim or Other Orders should be dismissed.
………………………………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
FILE NUMBER: | DT 11/34 |
APPLICANT: | Ban Mansoor Mikhael Shammas |
RESPONDENT: | Canberra Institute of Technology |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | Hearing on the papers |
PLACE OF HEARING: | Canberra |
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