FEDERAL COURT OF AUSTRALIA

Stanislawa Bahonko v Royal Melbourne Institute of Technology & Ors

[2006] FCA 1492

 PRACTICE AND PROCEDURE – appeals – leave to appeal from interlocutory judgment – discretion to grant leave – principles to be applied in exercising discretion – whether there is sufficient doubt in the learned judge’s decision to warrant exercise of discretion – whether a substantive injustice would result if leave refused

DISCRIMINATION LAW – application pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – allegation of unlawful discrimination – racial discrimination – disability discrimination – complaint made to Human Rights and Equal Opportunity Commission – complaint terminated as trivial, vexatious, misconceived or lacking in substance – whether allegations of religious or political discrimination also before court

 Administrative Decisions (Judicial Review) Act 1977 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Victorian Institute of Teaching Act 2001 (Vic)

 Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 cited

Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 referred to

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Vranic v Commissioner of Taxation (2002) 67 ALD 798 followed

STANISLAWA BAHONKO v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY, MINISTER FOR EDUCATION AND TRAINING AND VICTORIAN INSTITUTE OF TEACHING

VID 1204 OF 2006

TRACEY J

24 NOVEMBER 2006

MELBOURNE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from a judgment of Weinberg J, given on 11 October 2006:  see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325.  Leave is necessary because the judgment was interlocutory in nature: see Vranic v Commissioner of Taxation (2002) 67 ALD 798, [2].  The application was brought out of time but no objection was raised to me considering the merits of the application as argued by Ms Bahonko.  His Honour had refused an application, by Ms Bahonko, for an enlargement of time within which to file an application and claim pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the Act’).  The decision which provided the catalyst for Ms Bahonko’s application had been made under s 46PH(1)(c) of the act.  The President of the Commission had terminated a complaint made by her against the respondents because he considered that the complaints were ‘trivial, vexatious, misconceived or lacking in substance’.  By s 46PO(1) of the Act, a complainant, whose complaint is terminated by the President, may make an application to this Court alleging unlawful discrimination by one or more of the respondents to the complaint.  Section 46PO(2) requires that any such application must be made within 28 days after the date of issue of the notice that the complaint has been terminated.

2                     The relevant notices of termination were issued on 9 June 2006.  Ms Bahonko filed her application in this Court on 18 July 2006.  Since the application was made more than 28 days after the issuing of the notices, it was necessary for her to make the application which was considered by Weinberg J.

3                     His Honour accepted that the claim was filed only a short time after the prescribed period had expired, that Ms Bahonko had an acceptable explanation (illness) for the late filing and that none of the respondents was prejudiced by the late filing.  He nonetheless rejected the application on the ground that it would be futile to allow the application to proceed because, for jurisdictional and evidentiary reasons, it was bound to fail against each of the respondents.

4                     Having reviewed the relevant statutory provisions His Honour concluded that the Court lacked jurisdiction, under the Act, to hear complaints regarding religious and political discrimination.  The right to apply to the Court for relief under s 46PO of the Act is, as His Honour held, limited to applications in respect of complaints of ‘unlawful discrimination’ which are made to the Commission under Part IIB of the Act: see Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at 580-582.  Part IIB deals with complaints relating to age, disability, racial and sex discrimination.  It does not apply to religious or political discrimination.  I do not understand Ms Bahonko to have argued to the contrary before Weinberg J.  Rather, she submitted to His Honour that the Court should not be bound by technicalities or legal forms and should avoid, if possible, fragmentation of hearings.  On this application she did not argue that His Honour had erred in his ruling on the jurisdictional issues.

5                     Each of the specific claims made against the various respondents which were based on allegations of race and disability discrimination were rejected because the applicant had failed to advance any evidence which directly, or by necessary inference, supported her claims.

6                     Ms Bahonko’s claims against the Royal Melbourne Institute of Technology (‘RMIT’) arose out of its refusal to pass her doctoral thesis.  His Honour said (at [85]) that:

‘There is not a scintilla of evidence in anything that she has, at anytime, said to warrant the conclusion that the decision of the examiners not to pass her thesis was actuated or influenced by her race.  Nor is there any evidence to support her contention that the examiners were motivated by any disability on her part, actual or imputed.’

7                     Ms Bahonko’s claim against the Victorian Institute of Teaching arose from some administrative confusion relating to her annual registration as a teacher.  Ms Bahonko had applied for a waiver of the annual registration fee.  It was granted on condition that she did not work and then refused when she made it plain that she wished to work.  Later she arranged for the relevant payment to be made and she was registered.  At no time did she lose her registration as a teacher.  His Honour held that there was ‘not a skerrick of evidence’ to support Ms Bahonko’s assertion that these administrative decisions reflected any discrimination on the part of the Institute.

8                     Ms Bahonko’s complaint against the Minister for Education was, first, that the Minister was responsible for the Institute’s discrimination against her.  Given his finding in relation to the Institute, His Honour rejected this part of Ms Bahonko’s claim against the Minister.  The alternative basis of the applicant’s claim against the Minister relied on alleged vicarious liability.  Having examined the relevant legislative provisions His Honour concluded that the conduct of the RMIT could not be attributed to the Minister.  He concluded that it would, therefore, be futile to extend time ‘to enable her to pursue a hopeless case.’

9                     The principles to be applied on an application for leave to appeal from an interlocutory decision are well established.  They are stated and explained in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.  The principles were drawn to Ms Bahonko’s attention before she commenced her submissions.

10                  At the hearing Ms Bahonko argued that:

·                    Weinberg J was confused about whether the proceeding which Ms Bahonko wished to commence was a proceeding under s 46PO of the Act or a proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

·                    Weinberg J had demonstrated hostility against her during argument.  She objected, for example, to being told by His Honour: ‘don’t tell me how to run my Court.’

·                    Weinberg J put words into the mouths of respondents’ counsel.

·                    She was tricked into going into a full hearing.

11                  These complaints lack substance.  They may, in part, be explained by Ms Bahonko’s lack of understanding of normal Court processes.

·                    As Weinberg J’s reasons make clear he was under no misunderstanding as to the statutory foundation for the application which Ms Bahonko sought to bring to the Court.  That application was brought pursuant to s 46PO of the Act.  His Honour’s references, during submissions, to the Administrative Decisions (Judicial Review) Act 1977 (Cth) led to a discussion during which it was established that reliance was not being placed on that Act.

·                    Weinberg J’s direction to Ms Bahonko that she should not tell him how to run his Court came after Ms Bahonko told him not to interrupt her submissions.  His Honour’s interventions had been designed to ensure that issues were clearly identified and to ensure that those submissions were developed in an orderly manner.

·                    The complaint that His Honour put words into the mouths of counsel misunderstands the not uncommon practice whereby Judges anticipate and formulate submissions and confirm with counsel that particular submissions are being or are to be put.  His Honour confirmed that counsel proposed to argue that it would be futile for the Court to enlarge time because Ms Bahonko’s case lacked substance.

·                    The complaint that Ms Bahonko was tricked into arguing the substance of her case misrepresents what occurred.  As is plain from the exchange which is recorded at [33] of his Honour’s reasons, all parties, including Ms Bahonko, agreed to proceed immediately with argument directed to the question of whether or not an extension of time should be granted within which Ms Bahonko could commence her proposed proceeding in this Court.  It may be that Ms Bahonko misunderstood what was involved.  However, her suggestion that she was, in some way, tricked cannot be sustained.

12                  As is clear from His Honour’s reasons, the factor which weighed most heavily in the exercise of his discretion was his view that Ms Bahonko was unable to point to any evidence which was remotely supportive of her discrimination claims against the various respondents.

13                   I invited Ms Bahonko to direct my attention to any evidence which supported her claims of racial and disability discrimination against each respondent.  She responded by referring to four matters.

14                  The first was suggested to be evidence of ministerial intervention in relation to her application for waiver of the registration fee payable to the Institute.  She said that, under s 7 of the Victorian Institute of Teaching Act 2001 (Vic), the Minister had power to direct the Institute in the performance of its functions.  She then referred to a letter, dated 4 January 2006, in which the Chief Executive Officer of the Institute advised her that her application for waiver of the registration fee had been successful.  In that letter she was advised that she should not undertake duties as a teacher during the currency of the waiver.  Reference was also made to a policy of the Institute, which had been approved by the Minister, that waiver could only be granted for a maximum of two years.  Nothing in this letter could possibly be understood as suggesting that the Minister had played any part in the processing of Ms Bahonko’s application for waiver of her registration fee.  The fee waiver which she had sought was granted.  True it is that the waiver was based on a misunderstanding, by the Institute, of Ms Bahonko’s intentions.  She quickly made it plain that she wished to teach and it was this intimation which led the Institute to revoke the waiver.

15                  The second evidentiary matter raised by Ms Bahonko related to her experiences at a school in Moorabbin in 2005.  She said that she had obtained employment at the school on a casual basis.  On her first day she was able to teach without supervision.  However, during that day she was asked to provide an identification number allocated by the Education Department.  The next day her work was supervised by other staff.  After a third day her services were terminated.  She was unable to explain how these events were supportive of any of her allegations.

16                  Ms Bahonko next referred to a letter, dated 24 May 2004, written to her by the Chief Executive Officer of the Nurses Board of Victoria.  The letter referred to a complaint which had been made about Ms Bahonko’s conduct as a registered nurse.  Following a preliminary investigation the Board had determined that Ms Bahonko’s registration should be suspended pending a full examination of the complaint.  She was advised that, whilst the suspension was in force, she could not practise as a nurse.  The relevance of this letter was said to be that it bore some similarity to the terms of the letter written to her by the Chief Executive Officer of the Institute in January 2006.  That similarity was said to be that the January 2006 letter had also warned her against teaching whilst the registration fee waiver was in force.  Like His Honour, I can discern no possible relevance of the Nurses Board letter to the complaints made against the present respondents.

17                  The final matter on which Ms Bahonko said she would wish to rely at any final hearing of her application was what she said was the perjured evidence of the Institute’s solicitor.  The evidence is contained in an affidavit which was before Weinberg J.  His Honour set out the parts of the affidavit on which he relied at [39] – [42] of his reasons.  Ms Bahonko did not allege any factual error in any of the material from the affidavit on which His Honour relied.  Rather, she complained that the affidavit only told part of the story, that the solicitor had perjured herself by not setting out all relevant facts and that this was suggestive of weaknesses in the Institute’s case which she would wish to pursue at trial.  There is, in my view, absolutely no foundation for the most serious allegation of perjury.  More significantly, for present purposes, the allegation could not be called in aid in support of a discrimination claim against the Institute.

18                  I do not consider that Weinberg J’s decision is attended by any doubt much less doubt sufficient to warrant it being reconsidered by a Full Court.

19                  Accordingly, I refuse leave to appeal from His Honour’s Orders, made on 11 October 2006 and dismiss Ms Bahonko’s application for leave to appeal, filed on 1 November 2006.  I will hear the parties on the costs of the application.

Associate:

Dated:         24 November 2006