Shammas v Canberra Institute of Technology
[2012] ACTSC 197
•20 December 2012
BAN SHAMMAS v CANBERRA INSTITUTE OF TECHNOLOGY
[2012] ACTSC 197 (20 December 2012)
Background
Complaints to CIT
Complaints to Human Rights Commission
Complaints to ACAT
Appeal to ACAT appeal division
The ACAT hearing
The ACAT appeal division hearing
Appeal to the Supreme Court
Hearing of application for leave to appeal
Consideration of application for leave to appeal
Were complaints to CIT informal or formal?
Did President Stefaniak misunderstand the evidence?
Was there procedural unfairness?
Conclusions
Order
EX TEMPORE JUDGMENT
ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
No. SCA 76 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 20 December 2012
IN THE SUPREME COURT OF THE )
) No. SCA 76 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
BETWEEN:
BAN SHAMMAS Applicant
AND:
CANBERRA INSTITUTE OF TECHNOLOGY Respondent
ORDER
Judge: Penfold J
Date: 20 December 2012
Place: Canberra
THE COURT ORDERS THAT:
(a)Leave to appeal to the Supreme Court is refused.
Background
The appellant, Ban Shammas, was born in Iraq and came to Australia as a refugee. In 2010 she began studying for a Certificate IV in Business Administration at the Canberra Institute of Technology (CIT). She is in her mid-40s.
Complaints to CIT
Ms Shammas quite quickly became uncomfortable about her experiences at CIT. She made oral complaints about what she said was inappropriate behaviour by other students in her class. It is unnecessary to go into the details about that behaviour at this stage, but it is relevant that one aspect of her concerns with the behaviour of those students was that some of their conversations with her, including some about Middle Eastern issues then being canvassed in the media, raised issues similar to those she had discussed with her husband at home. This caused her to suspect that ASIO was bugging her home, and passing on information regarding her conversations with her husband to her fellow students.
Complaints to Human Rights Commission
Ms Shammas was not satisfied by CIT’s response to her complaints. She made three complaints to the Human Rights Commission, presumably under s 42 of the Human Rights Commission Act 2005 (ACT), alleging discrimination on the grounds of race or age. Under the Discrimination Act 1991 (ACT), discrimination by educational authorities against students is unlawful (s 18(2)). Discrimination is constituted by treating a person unfavourably because the person has a particular attribute, including a particular race or age (ss 7 and 8). However, under s 128(a) of the Discrimination Act, CIT is not liable for the actions of its students.
In due course, the Human Rights Commission closed each complaint under s 78 of the Human Rights Commission Act and the complaints were referred to the ACT Civil and Administrative Tribunal (ACAT) under s 53(a) of that Act.
Complaints to ACAT
At some point after this, two of the complaints were discontinued in whole or in part. The remaining claims, being of discrimination (including victimisation) on the grounds of race and age, were heard over three days in February 2012. Among other witnesses, three students from Ms Shammas’s classes at CIT gave evidence. Their names appear in the hearing transcript but have been disguised in the published ACAT decision, so I refer to them as CIT students A, B and C.
Senior Member Lennard delivered her decision on 8 March 2012. She dismissed Ms Shammas’s applications, finding that there had been no unfavourable treatment in the CIT response to the complaints and no victimisation, and that, if contrary to her findings, there had been any unfavourable treatment, there was no evidence that any such treatment had been motivated by Ms Shammas’s race or age.
Appeal to ACAT appeal division
Ms Shammas then appealed to the appeal division of ACAT, and President Stefaniak heard her appeal. Ms Shammas applied for the appeal to be transferred to the Supreme Court under s 83 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). That application was opposed by CIT, and it was refused.
President Stefaniak dismissed Ms Shammas’s appeal. She now wishes to appeal that decision to the Supreme Court. Before considering that application, I refer in a bit more detail to the content of those proceedings.
The ACAT hearing
Senior Member Lennard found that Ms Shammas had made no formal complaint to CIT in writing. Ms Shammas did, however, speak to the head of Education, Business Services and Technology, who referred her to a counsellor. In a meeting on 26 October 2010 that lasted for more than two and a half hours, Ms Shammas detailed her complaints. Senior Member Lennard at [4] to [15] in her judgment identified and described 12 complaints that had been recorded by the CIT counsellor relating to the behaviour of other students in Ms Shammas’s classes, as follows:
The first was that following a conversation with a fellow student, CIT Student A, where the conversation was about the Applicant’s arrival in Australia, her refugee status and her persecution in Iraq, the Applicant noted that a number of people with brown skin and Islamic features were looking at her in what she described as a weird way. The Applicant believed that CIT Student A had discussed the conversation that she had had with the Applicant, with other students and with the CIT staff.
The second complaint was that on 5 August 2010, CIT Student A had spoken to the Applicant about a news report in which an Iraqi woman had committed adultery and had been lashed. The Applicant felt that this conversation was related to her, and upon investigation ascertained that the woman in the news report was Iranian, not Iraqi. The Applicant believed, again, that the conversation had been directed at her.
The third complaint was that also on 5 August 2010, CIT Student A had suggested to the Applicant that the Applicant should undertake an assignment about refugees. The Applicant felt that CIT Student A making this suggestion was a breach of privacy of their private conversation.
The fourth complaint was that CIT Student A had discussed all of the above conversations and information with fellow students. The Applicant was “very offended by the jokes and the students’ gestures”.
The fifth complaint was that on 19 August 2010 two male CIT students had looked the Applicant up and down, assessing her body. The Applicant considered this very offensive and humiliating.
The sixth complaint was that on or about 10 September, a fellow student, CIT Student B, had had a conversation with the Applicant. This conversation concerned the Applicant’s further study and career prospects.
The Applicant alleges that CIT Student B made claims that if the Applicant continued to study she may get a job in the public service or she may become, “a minister in her own country.” The Applicant believes that during this conversation CIT Student B was mocking her. and that, further, after this conversation, he made a joke of this conversation with his fellow students. This caused fellow students to mock and ridicule her.
The seventh complaint was that students laughed when the Applicant entered the class room.
The eighth complaint concerned students discussing the Applicant’s weight, and regarding her as overweight, and suggested that the Applicant should attend a gym.
The ninth complaint was that some students had expressed opinions about refugees, religion and the Middle East, and that the students expressing these opinions and engaging in these discussions made the Applicant feel isolated and bullied.
The tenth complaint concerns the student presentations as part of their assessment process on hidden cameras and refugees. The Applicant felt that these two particular presentations were aimed at her, or related to her in some way.
The eleventh complaint was that some students had laughed in class when the Applicant began to read as part of a class activity. The final complaint concerned a student who was selling second hand books cutting some pages from the text book.
On 9 November 2010, CIT staff had a meeting with Ms Shammas at which they told her they had investigated the complaints and felt there was little more they could do.
For the purposes of her decision, Senior Member Lennard proceeded as if the actions of the students had been established, but she did not make any relevant findings, because the Human Rights Commission complaints related not directly to those actions but to CIT’s response to Ms Shammas’s complaints about them.
Senior Member Lennard identified that the action complained of was a failure by the CIT to investigate Ms Shammas’s complaints properly, which was said to be unfavourable treatment of Ms Shammas. Ms Shammas had pointed out, among other things, that the CIT staff concerned had not interviewed any of the three students who gave evidence at the hearing and that some claims, such as the students laughing in class and the “weird looks by brown-skinned men with Islamic features” (whatever that means) were not investigated at all. As well, the student behaviour complained of did not change after the investigation. Ms Shammas submitted that these matters, and others, showed that there had been a failure to properly investigate.
On behalf of CIT it was put that Ms Shammas had made no formal written complaint and that the staff had followed the procedures for investigating informal complaints. A CIT witness gave evidence of how he had investigated. I note that some of the investigations that Ms Shammas might have expected were, according to CIT witnesses, not undertaken because of a view that steps could not be taken without breaching Ms Shammas’s privacy by revealing her as the source of the complaints.
Senior Member Lennard’s finding was, at [53]:
The Tribunal finds, taking into account that evidence of the Applicant and the respondent, that the Applicant has not established any failure to investigate her informal complaint. On the facts, it was investigated. On the facts, it was investigated as thoroughly as it could be given the nature of the complaints and the informal nature of the process. Further, the Tribunal finds that the method and extent of the investigation was appropriate and proper to the circumstances.
Senior Member Lennard then noted that if, contrary to her finding, CIT’s investigation was inadequate so as to constitute unfavourable treatment, Ms Shammas needed to establish that the reason for the unfavourable treatment was her race or age, saying at [54]:
If the Tribunal is not correct in this finding, and if it should be that the investigation was not adequate, then the next step for the Applicant would be to establish that the conduct of the CIT, in failing to properly investigate the complaint, was because of her race or because of her age. No evidence was produced, nor was any submission made beyond the assertion that since the student conduct complained of by the applicant was motivated by race, the failure to investigate it must also be so motivated.
Senior Member Lennard found that there was no evidence before her to show that CIT’s conduct in respect of the investigation of Ms Shammas’s complaints was motivated or caused or actuated by Ms Shammas’s race or age. She said at [59] that “the applicant has not established the necessary causal connection”.
As noted, there was also a claim before ACAT that as a result of her original complaints, Ms Shammas was treated unfavourably and suffered victimisation. The victimisation was said to have been constituted by:
(a)first, a conversation with a CIT staff member, initiated by Ms Shammas, about her study and her career prospects, during which it was suggested to her that her competency in English might not be sufficient to enable her to get a high level job in accountancy; and
(b)secondly, a failure by CIT to record her results in two subjects accurately, a failure that was corrected promptly when Ms Shammas drew attention to it.
CIT admitted both the conversation and the failure to record the results accurately. However, Senior Member Lennard noted that there was no evidence, only Ms Shammas’s assertion, that either the conversation or the failure in relation to her results was motivated by the fact that Ms Shammas had made the earlier complaints. Senior Member Lennard pointed out that some kind of objective evidence was necessary to establish Ms Shammas’s claims, not just subjective beliefs.
Indeed, one of her comments bears repeating. Senior Member Lennard said at [66]:
It is not sufficient to say that, “I am an older student and I am of a particular race, and therefore any unfavourable treatment must be on those grounds.” A lot more than that has to be established. It has to be established as more likely than not at the very least, and there is nothing here, no evidence put forward by the Applicant for the Tribunal to look at.
Senior Member Lennard also noted at [81] that:
... Ms Shammas has persisted in her views and beliefs in relation to strongly contested factual allegations, such as whether the conversation with CIT Student B took place and what the content of it was. The Applicant has consistently repeated her assertions without any amendment, without any apparent reaction to the evidence. and without any real consideration of the witnesses’ contrary oral evidence.
Of course, a claimant is not obliged to change her beliefs or her views of the facts as a result of hearing inconsistent evidence. The inconsistent evidence may be quite untrue. However, especially where the real issue hangs on different interpretations of dealings between people, one party’s unwillingness even to consider interpretations of those dealings offered by other parties might reasonably cause a fact-finder to wonder about the reliability of that party’s evidence in general, and her assertions about the intentions of other parties in particular.
The ACAT appeal division hearing
I turn now to the appeal within ACAT.
The hearing before the Appeal President ran over two full mornings, being 2 August 2012 and 6 August 2012. The hearing was not particularly structured, but various issues were raised during it.
Ms Shammas complained of Senior Member Lennard’s refusal to admit certain documents tendered by her. One document had been found to be irrelevant to the actions of CIT that Ms Shammas complained about, because it related to events that had occurred after Ms Shammas’s complaints were referred to ACAT. The other document was an affidavit about ASIO’s interest in Ms Shammas.
President Stefaniak did, however, receive some further evidence from Ms Shammas, much of it being her medical records.
Ms Shammas challenged Senior Member Lennard’s finding that her original complaint to CIT staff was an informal rather than a formal complaint under the CIT complaints procedures.
In discussions about the need for Ms Shammas to establish that her race or age was the reason for the conduct of CIT that she complained about, Ms Shammas conceded that the only reason she had mentioned age was because it was mentioned on the form she used to make her complaints to the Human Rights Commission, and she thought it might be relevant.
President Stefaniak pointed out that costs orders were likely to be made in the Supreme Court.
Ms Shammas repeatedly tried to turn the hearing to the subject of ASIO’s alleged interest in her, and President Stefaniak repeatedly said that this question was irrelevant to whether CIT had discriminated against Ms Shammas in relation to its handling of her original complaints. Despite having noted that the allegations about ASIO were irrelevant to the claim about CIT, President Stefaniak devoted a large part of his reasons for decision (7 or 8 out of roughly 25 pages of transcript) to commenting on Ms Shammas’s claims about ASIO’s role in her dealings with CIT and her life more generally. The Appeal President was clearly hoping to reassure Ms Shammas that ASIO involvement in those matters was highly unlikely.
After two full mornings of hearing, President Stefaniak dismissed Ms Shammas’s appeal. Following her request for a statement of reasons, President Stefaniak provided the transcript of the hearing, with a summary of his 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 transcript 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 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 dismiss the appeal.
Appeal to the Supreme Court
Ms Shammas now wishes to appeal to the Supreme Court. Under s 86 of the ACAT Act, that appeal is only available on a question of fact or law and only available by leave. The Supreme Court does not hear the matter afresh, nor even examine the decisions below for any error by ACAT members, except to the extent of errors arising from incorrect answers to relevant questions of fact or law.
Hearing of application for leave to appeal
Ms Shammas’s application for leave to appeal to the Supreme Court was listed before me as duty judge. It was not able to be reached on the first day and was adjourned to 5 December 2012, but not before I had pointed out to Ms Shammas the need for her to identify the questions of fact or law that would permit me to give her leave.
On 4 December 2012, Ms Shammas provided an amended draft Notice of Appeal which purported to specify 24 questions of fact, one question of fact and law and 10 questions of law. When the hearing began the next day, she began what seemed intended to be an extended recital of her complaints about the whole process since she first took her concerns to CIT staff.
On several occasions, I invited Ms Shammas to focus on her best arguments, noting that leave could be granted if she identified one genuine question of fact or law that, if answered differently by ACAT, would have made a difference to the decision ultimately handed down by President Stefaniak. Instead, she chose to persist with individual arguments even after I had made it clear that I did not accept the particular issues being raised as sufficient to justify the giving of leave.
When I told Ms Shammas that she had limited time left to make her oral submissions, and that the application for leave to appeal was not intended to involve a complete re-hearing of her complaints against CIT, she still did not attempt to focus on her best arguments; indeed, my impression was that she intended to use as much court time as was available to her to air her claims that she was under surveillance by ASIO. Eventually, after two and a half hours, the matter was again adjourned for several days on the basis that Ms Shammas would be given one more chance to file properly focused submissions (with a limit of five pages), and one more hour to make her oral submissions.
Within the time permitted for further submissions, Ms Shammas filed a 16-page document, and in court she handed up a further two pages of material.
She had also attempted to file an application in proceedings seeking to join ASIO as a party to the application for leave to appeal, but this was (properly) rejected by the Registry.
The 16-page document set out questions, or perhaps groups of questions, as follows:
Whether the president held the hearing following to produce powerful evidence by the appellant. Whether the president didn’t allow the appellant to say her written submission, although the appeal upheld as new application.
Whether the president in cooperation with the respondent made findings of fact where there is no evidence to support to bias employees in ASIO.
Whether the president biased CIT and didn’t take into account relevant evidence that is significant to material findings of fact.
Whether the president misdirected himself to the law to bias the respondent.
Whether the president manifestly misinterpreted the facts and failed to consider relevant evidence which led to failure to correctly apply the Discrimination Act to the circumstances of the appellant’s case.
Whether the president failed to take into account relevant consideration.
I note first that, while it is clear that Ms Shammas is a highly intelligent person with a command of English that is in some respects very impressive, there are some peculiarities about her use of English which have made it difficult for me to be sure that she understands what the court requires and that I understand what she is trying to put to the court. Those questions provide one good example of the problems.
Ms Shammas in those questions repeatedly uses the verb “bias” in a way that does not on first reading make sense in the context of her broader claims.
After quite some discussion with Ms Shammas, I have discovered that she uses “bias” in this way not to mean “engender prejudice” but to mean “favour, advantage or protect”. Having had that discussion with Ms Shammas, it is easy enough to translate the word in reading and listening to her submissions – but it may be that unrecognised unorthodox uses of other words help to explain why I have found it so hard to understand her arguments.
It is also likely that her understanding of English may go some way to explaining some of Ms Shammas’s other claims which at first sight seem quite bizarre. For instance, Ms Shammas quoted Dr Jarvis, who represented CIT in the hearing before President Stefaniak, as saying:
The question posed by the tribunal, and in a sense which was part of Ms Shammas’ case, is that – well there could have – there are some conceivable steps that could have been taken; namely they could have tracked down who Amir was or Andrew or they could have tracked the brown-skinned students who looked at Ms Shammas in a weird way and confronted them with the allegation. CIT decided not to take those steps.
In argument before me, Ms Shammas asserted that the suggestion that CIT could have tracked down Amir and Andrew or “the brown-skinned students who looked at Ms Shammas in a weird way” means not that CIT might, if it chose, have put more effort into tracking down Amir and Andrew or the brown-skinned students, but that CIT did in fact track them down. Ms Shammas said that the concluding words of that extract, that “CIT decided not to take those steps” meant that, having tracked down Amir and Andrew or the brown-skinned students, CIT decided not to confront them with her allegations. I suspect that another one of Ms Shammas’s difficulties with the subtleties of the English language is that she does not understand the subjunctive mood, such that she interprets “could have” as referring not to a hypothetical but to a past event that did in fact take place – and the fact that such an event has been denied by CIT no doubt increases her belief that she has been lied to.
Consideration of application for leave to appeal
It is important to bear in mind that the central issue in this matter is Ms Shammas’s complaint that CIT, through its staff (but not, as already noted, through its students) treated Ms Shammas unfavourably, and that they did so because of her race or age.
This means that all the questions identified by Ms Shammas that rely on claims about ASIO’s involvement in monitoring Ms Shammas’s own activities and in directing the behaviour of CIT staff and students are irrelevant, as are Ms Shammas’s claims that Senior Member Lennard and President Stefaniak were either acting under direction by ASIO or were conspiring with CIT’s witnesses and legal representatives. This is so especially since, while Ms Shammas is quite certain that ASIO are monitoring her activities, she does not claim to have evidence that the reason ASIO has influenced CIT staff and students, and indeed ACAT members, against her is because of her race. As I understand it, she concedes that this is just her belief, although that belief does seem to some extent to be based on ASIO’s failure to deny that it is in fact keeping her under surveillance.
In Ms Shammas’s oral and written submissions on this application, she has mentioned two issues arising in the ACAT hearings that could have been framed as questions about matters considered in ACAT and that do not in any sense rely on Ms Shammas’s claims of ASIO surveillance. Whether either of them would have been a question of fact or of law for the purposes of the ACAT Act is a matter I do not need to decide, because I am in any case satisfied that ACAT made the correct assumptions or decisions in respect of each of them and that, accordingly, an appeal to the Supreme Court should not be allowed.
Were complaints to CIT informal or formal?
The first relates to whether Ms Shammas’s complaints to CIT were informal or formal complaints. Ms Shammas says that they were formal complaints, which should therefore have been dealt with in accordance with the procedure set out in the CIT handbook for dealing with formal complaints, and that CIT’s failure to do so amounted to unfavourable treatment of her.
An extract from a document included in the appeal papers and identified as “A-Z Information” sets out the CIT complaints procedure. It encourages the informal resolution of complaints, and notes that at any time a person may request that a complaint be dealt with as a formal complaint. The formal complaints procedure requires a complaint to be submitted to a specified officer using a standard pro-forma to be found on the CIT website. A complainant can contact counselling for assistance. Once a formal complaint is submitted, there are time frames within which the complaint will be acknowledged and within which a complainant will be notified of the outcome of the complaint.
When Ms Shammas made her complaints to a CIT staff member, Mr Ian Heugh, he took her to see the head of counselling and equity, Ms Mico. Ms Mico made file notes of her dealing with Ms Shammas.
First, over a period of more than two and a half hours on 26 October 2010, Ms Mico heard Ms Shammas’s concerns. At some stage, she appears to have produced a file note of that discussion.
On 9 November 2010, she made a file note of a meeting she and Mr Heugh had that day with Ms Shammas. At that meeting, Ms Shammas’s concerns were summarised and Ms Mico and Mr Heugh explained the problem that CIT saw in dealing with her concerns, being in general terms that there was a lack of evidence for most of the complaints, that the complaints relating to Ms Shammas being subject to surveillance through bugs or hidden cameras were a police matter, and that CIT was not able to investigate looks and feelings. The meeting finished with a suggested “Way forward”, being that CIT would investigate issues and concerns “as they happen on CIT grounds”, that Ms Shammas’s class teachers had been briefed to look out for any problems in the class room, and that CIT fully supported Ms Shammas in her goal of completing her course.
Ms Shammas does not seem to claim that she explicitly sought to engage the formal complaints procedure, only that once the complaints had been recorded in writing by the counsellor (the person who is identified in the complaints procedure as the person who can give help with formal complaints), it must have become a formal complaint, and as such it was not handled in accordance with the applicable procedures.
As far as I can understand, there is no claim that Ms Shammas’s complaint, having been discussed with the counsellor, was submitted by Ms Shammas or by the counsellor on her behalf in accordance with the procedure for formal complaints. The document was a file note, written by Ms Mico in the first person, consisting of 23 numbered paragraphs, some of which document Ms Shammas’s concerns, while four of them describe the arrangement and participants in the meeting and the desired outcomes. The document has not apparently been adopted by Ms Shammas in any way.
Nor to my knowledge is there any claim that at or after the second meeting Ms Shammas asked that her complaint be dealt with as a formal complaint.
It seems clear that Ms Shammas’s complaint was dealt with as an informal complaint. In order to make out a claim that this constituted unfavourable treatment, Ms Shammas needed to establish, among other things, that her complaint was a formal complaint which should have been dealt with differently.
As noted, there is before me no document appearing to be a formal complaint made by or on behalf of Ms Shammas. There appear to have been no documents submitted in the way required for a formal complaint. I cannot see that Ms Shammas’s initial discussion with Ms Mico, or the subsequent meeting with Ms Mico and Mr Heugh, invoked the formal complaints procedure.
Thus the ACAT treatment of Ms Shammas’s complaints as informal does not as such seem to raise any questions or doubts about the ACAT decisions.
Did President Stefaniak misunderstand the evidence?
The second claim is that in the ACAT appeal division, Dr Jarvis on behalf of CIT said, and President Stefaniak accepted, that evidence had been given before Senior Member Lennard by two students who had not in fact given evidence.
As noted, three students from CIT did give evidence before Senior Member Lennard. Two other students, identified only as Amir and Andrew, were not called by either party, apparently because no one had been able to identify them except as Amir and Andrew.
In the Appeal Division, President Stefaniak had an exchange with counsel for CIT in which, Ms Shammas says, counsel was asserting that Amir and Andrew had given evidence. In a passage coming after President Stefaniak had made some comments about how a matter might have been raised with Amir and Andrew, there is the following exchange:
DR JARVIS: We are focusing on the Amir incident.
PRESIDENT STEFANIAK: I assumed that.
DR JARVIS: And they were - - -
PRESIDENT STEFANIAK: Were they called or ‑ ‑ ‑?
DR JARVIS: Their surnames were never identified.
PRESIDENT STEFANIAK: No, they weren’t; no, that’s right. I knew that.
Then, after a couple more pages of transcript:
DR JARVIS: I’m sorry Mr President, but there is one further point; that these students were called to the Tribunal and gave actual evidence.
PRESIDENT STEFANIAK: I know that, yes.
DR JARVIS: So Ms Lennard was able to form a view about the truthfulness - - -
PRESIDENT STEFANIAK: And Andrew and Amir weren’t because they didn’t have surnames - - -
DR JARVIS: Indeed.
PRESIDENT STEFANIAK: Okay.
DR JARVIS: The truthfulness of the allegations made against them - - -
It is apparent on reading that transcript that Dr Jarvis was intending to make the following statement, except that he was interrupted by the President with his reference to the fact that Amir and Andrew had not been called; Dr Jarvis’s statement appears to have been intended to run:
I’m sorry Mr President but there is one further point, that these students were called to the Tribunal and gave actual evidence so Ms Lennard was able to form a view about the truthfulness of the allegations made against them.
Given that Dr Jarvis referred, apparently out of the blue, to the fact that the students had given evidence, and that this prompted a reference to Amir and Andrew from President Stefaniak, it is easy to see why Ms Shammas might have thought briefly that Dr Jarvis was saying, and President Stefaniak was accepting, that Amir and Andrew had given evidence before Senior Member Lennard.
However, I am satisfied, having reviewed those transcripts carefully, that this is a misunderstanding of the exchange between Dr Jarvis and President Stefaniak and that when President Stefaniak came to give his decision he was under no misapprehension that either Amir or Andrew had given evidence before Senior Member Lennard.
It cannot be said that either Dr Jarvis’s reference to “these students” or President Stefaniak’s interpolation left President Stefaniak under any misapprehension about who had given evidence before Senior Member Lennard. Nor, given my interpretation of the exchange between Dr Jarvis and President Stefaniak, can it be said that Dr Jarvis’s comment represented any kind of attempt to mislead President Stefaniak, let alone that this alleged attempt should be seen to have tainted all evidence given on behalf of CIT.
Was there procedural unfairness?
Ms Shammas also complains of procedural unfairness in ACAT.
It seems that at some point before the hearing of Ms Shammas’s appeal before President Stefaniak, it was agreed that the appeal would be conducted as what Ms Shammas called a new application, presumably under s 82(a) of the ACAT Act, but which seems to have had the characteristics of a re-hearing, in the sense that it was apparently agreed that the hearing would rely on the transcript from the original ACAT hearing and possibly new evidence, but that, for instance, the original witnesses would not be required to give evidence again. Ms Shammas said that she began to make submissions but that, in effect, the proceedings were sidetracked by other discussions and she did not ever complete her submissions. She suggested that President Stefaniak had taken up too much of the time with irrelevant material.
It is unfortunate that Ms Shammas feels, not without some justification, that the appeal proceedings were not well-structured. On the other hand, Ms Shammas herself must take some responsibility for allowing discussions to focus on her claims about ASIO surveillance. In any case, I am not convinced that even in a hearing described as a new application, a party has a right to insist on simply reading her submissions in full, especially when those submissions tend to be both unstructured and repetitive.
I have previously commented on the peculiarity of providing for an appeal that is specified to be available on a question of fact or law to be able to be conducted as a new application (Garry O’Donnell v Environment Protection Authority [2012] ACTSC 140 at [47]), and this case is a good example of the confusion that can be caused by that peculiarity. This is especially so if ACAT members do not have a clear idea themselves, which they then convey to all parties, of exactly how the matter is to be run, or if they do not then run the matter accordingly.
Conclusions
There is, however, no substance in Ms Shammas’s claims either:
(a)that the status of her complaint to CIT was misunderstood by Senior Member Lennard or by President Stefaniak; or
(b)that CIT’s representative sought to mislead President Stefaniak, or that President Stefaniak was misled, about which students had given evidence before Senior Member Lennard.
In any case, neither of these issues, nor the claim that Ms Shammas was denied procedural fairness because she was not allowed to read out all of her submissions, enables the identification of any question of fact or law that would provide a basis for an appeal by Ms Shammas from President Stefaniak’s decision to this court.
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 both 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 forums might be available.
At the end of my hearing of this application, Ms Shammas made it clear that what she really wanted, again, was to read out her extensive submissions in this court. This was not apparently because she wanted to make sure I was aware of them – I had already explained that I could read them to myself far more quickly than she could read them aloud. It was certainly not because she wanted me to engage with her about her submissions – rather, she complained that the time I had allowed her to make submissions had been partly occupied by me asking her questions, which I had done in case any appropriate question of fact or law could, by careful questioning, be discovered in her submissions. I do not know exactly how Ms Shammas thought that reading her claims about ASIO onto yet another record would help.
An unrepresented litigant may have a claim to some leeway in how her documents and her submissions are framed (although it might be thought that any such claim must get progressively weaker at each higher level of review). Such a litigant, however, has no claim to have a different legal process applied to provide her with a review, or indeed a platform, of a kind that is not available to other litigants pursuing similar claims.
Order
Leave to appeal to the Supreme Court is refused.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Acting Associate:
Date:
Counsel for the applicant: The applicant appeared in person
Solicitor for the respondent: Ms S Gasser
Date of hearing: 5, 11 December 2012
Date of judgment: 20 December 2012
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