Shammas v Canberra Institute of Technology

Shammas (the appellant) sought leave to appeal to the Court of Appeal from a decision of Penfold J, which itself had refused the appellant leave to appeal from a decision of the ACT Civil and Administrative Tribunal (ACAT). The Canberra Institute of Technology was the respondent. The core of the dispute concerned whether the decision of Penfold J was interlocutory or final, and whether the appellant, who was self-represented and a non-native English speaker, had received a fair hearing before Penfold J, or if Penfold J had acted with bias or in bad faith.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether Penfold J's refusal of leave to appeal from the ACAT decision was an interlocutory or final order for the purposes of an appeal to the Court of Appeal. Secondly, if the decision was considered interlocutory, the Court had to assess whether leave to appeal should be granted, considering whether the decision was attended with sufficient doubt and whether substantial injustice would be done by leaving the decision unreversed, particularly in light of the appellant's circumstances and her allegations of unfairness and bias.

Nield AJ determined that the decision of Penfold J was interlocutory. In considering the application for leave to appeal, Nield AJ found that while the appellant's circumstances as a self-represented, non-native English speaker were noted, and the question of a fair hearing was a serious one, these factors did not, in this instance, meet the threshold for granting leave to appeal. The Court concluded that the decision of Penfold J was not attended with sufficient doubt, nor was there a demonstrable risk of substantial injustice that would warrant interfering with the refusal of leave to appeal.

Consequently, leave was 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. However, leave to appeal from Penfold J's decision was refused, and the appellant's application for leave to appeal was dismissed. The appellant was ordered to pay the respondent's costs of the application for leave to appeal.