submissions of the parties
34 I then invited each of the respondents to address me as to why Ms Bahonko should not be granted an extension of time.
35 Mr Jorgensen, who appeared on behalf of RMIT, submitted that the Commission's notice of termination related solely to Ms Bahonko's complaints regarding discrimination on the basis of race and disability, and not her complaints regarding religious or political discrimination. He submitted that there was therefore no application before the Court relating to discrimination on the basis of religion or political opinion.
36 Mr Jorgensen next submitted that insofar as Ms Bahonko's complaints related to race and disability, the Commission had concluded that she had not provided any evidence whatsoever to support those claims. He referred to Ms Bahonko's affidavit of 18 July 2006, which set out the additional evidence upon which she relied in support of her application to this Court, and noted that there was nothing in that affidavit which cured that fundamental difficulty.
37 Ms Alison O'Brien, who appeared for the Victorian Minister for Education, joined with Mr Jorgensen in submitting that there was no evidence whatsoever that her client had discriminated against Ms Bahonko on the grounds of either race or disability. Indeed, the Minister had been brought into this proceeding under a misconception, namely that the Minister was vicariously liable for any unlawful discrimination on the part of RMIT, as well as VIT. Ms Bahonko's claim that she had been denied work as a teacher, refused interviews, and treated with contempt, even if true, could not be sheeted home to the Minister on the basis of any unlawful discrimination on her part, or on the part of anyone else for whom she was vicariously responsible.
38 Ms Frances O'Brien SC, who appeared for VIT, relied essentially upon the affidavit of Ms Haslam. In that affidavit, Ms Haslam deposed to the fact that on 7 February 2006 Ms Bahonko paid the 2006 "annual registration fee" of $62 required by s 21 of the Victorian Institute of Teaching Act 2001 (Vic) ("the VIT Act"), and was thereby lawfully entitled to teach in any primary, secondary or special school in Victoria.
39 Ms Haslam's affidavit went on to note that s 81 of the VIT Act provided for the power to waive the "annual registration fee". VIT had a policy regarding waiver, enabling that course to be adopted for a fixed period of between three months and two years on condition that the teacher did not undertake any duties of a teacher for the duration of that period. Only in cases of extreme financial hardship, as defined by VIT, could a teacher engage in teaching without the payment of the "annual registration fee".
40 The affidavit went on to say that on 28 December 2005, during the annual closure of VIT, Ms Bahonko applied by facsimile on the grounds of extreme financial hardship for the waiver of her 2006 annual registration fee for a 12 month period commencing 31 December 2005. On 4 January 2006, VIT considered her application for waiver on the grounds of extreme financial hardship, and rejected it. However, it appeared from the application that Ms Bahonko did not wish to work or was not able to do so due to physical injury. Accordingly, VIT approved a waiver on those grounds.
41 The affidavit stated that on 4 January 2006 VIT wrote to Ms Bahonko advising her that her registration fee would be waived for the calendar year 2006 on condition that she not work as a teacher before the waiver period expired, and that she pay the applicable registration fee if she wished to return to work during that period. On 6 January 2006, Ms Bahonko wrote explaining that she did intend to work in 2006. VIT reconsidered her application for a waiver on the ground of extreme financial hardship, but again rejected the waiver on that ground. On 10 January 2006, Ms Bahonko was advised of this, and sent an invoice requiring payment of the 2006 annual fee.
42 The affidavit conceded that the information given to Ms Bahonko had been confusing. The Summary Guidelines for the Waiver of the Annual Registration Fee were unclear, and were currently being redrafted. However, it was submitted that Ms Bahonko's claim did not raise any arguable case of unlawful discrimination by VIT as her right to work as a teacher in Victoria had never been denied. It was simply that she did not meet the test of extreme financial hardship. However, as from 7 February 2006, when she paid the registration fee, she was lawfully able to work as a teacher in Victoria.
43 Ms Frances O'Brien submitted that it was plain that VIT, a body set up to promote and regulate teaching in Victoria had done nothing more than apply its normal policy to Ms Bahonko. She noted that there had only been one case of waiver on the basis of extreme financial hardship in the last four years. She submitted that the condition imposed by VIT upon the grant of the waiver, namely that Ms Bahonko not work, clearly had nothing to do with either her race or any disability from which she might suffer.
44 Ms Bahonko was then invited to explain how she put her case in relation to racial or disability discrimination. She submitted that the respondents' objections to the extension of time that she sought were "misconceived and premature". She noted that under the HREOC Act (presumably s 46PR) the Court was "not bound by technicalities". She submitted that it would be contrary to the Act to refuse her an extension of time without carefully examining and testing all of the evidence in the case. She submitted that the respondents' objections to time being extended amounted to a "contempt of court" and "an admission of guilt". She referred to her affidavit of 18 July 2006 and submitted that her assertions could "be tested in the witness box".
45 Ms Bahonko then read aloud a detailed written submission that expanded upon the evidence contained in her affidavit. She insisted that she had been "in serious hardship" at the time she sought waiver of the annual registration fee from VIT. She claimed that even the delay of a little over two months between the time she first applied for that waiver and the time she paid the registration fee reflected "discrimination" on the part of VIT.
46 When asked what kind of discrimination she was referring to, Ms Bahonko replied "imputed disability". She said that the nature of the letter she received from VIT was very much like a letter she had previously received in 2004 from the Nurses Board of Victoria. When confronted with the fact that the Nurses Board was a different body to VIT, and its decision in 2004 had nothing whatever to do with the actions of VIT in early 2006, Ms Bahonko replied that they were both under the auspices of the same government and that information passed between one Minister and the other. She said that the Nurses Board had vilified her in the Government Gazette by claiming that she had a disability and could only work under certain conditions. She concluded that VIT had entered into a conspiracy with the Nurses Board under the auspices of the Victorian Government with the aim of preventing her from finding employment.
47 Ms Bahonko accused Ms Haslem of having sworn a false affidavit in an attempt to "corrupt the court". She also sought to agitate her claims of religious and political discrimination, arguing that Mr Jorgensen's submission that these matters were not the subject of this application was "a pure technicality". She said that RMIT had acted unlawfully in refusing to accept her thesis as satisfying the requirements of her doctoral degree. She noted that none of the examiners, even the "worst" of them, had failed her thesis outright, but merely required it to be resubmitted. She said it was "obvious" that she had been the victim of discrimination because no one who had put the amount of work into a thesis that she had could possibly have been failed.
48 Ms Bahonko submitted that although she had lodged an appeal against the decision to fail her thesis, RMIT had informed her that she could not proceed with that appeal. She submitted that this was another example of discriminatory conduct. She claimed that had anyone other than a person in her position been failed, RMIT would have followed the proper procedures, and heard the appeal.
49 When asked what evidence there was to suggest that either the examiners or RMIT had discriminated against her on the basis of race, Ms Bahonko replied that it was "obvious" that this was so. She did not enlarge upon that assertion. In relation to disability, Ms Bahonko said there was a connection between her place of employment, where she had been assaulted, and RMIT. She said:
"MS BAHONKO: … I have a RMIT lecturer coming to my place when I work in 2004 - no, 2003 actually, and giving a lecture actually brainwashing me and talking about ideology and beliefs and so on ‑ ‑ ‑
HIS HONOUR: What disability are you speaking of? What is your disability?
MS BAHONKO: I am getting to it. So when I - when things went badly in my work place and the people, the criminal employer, imputed number of disabilities on me including some - that I have social disability. That I am socially inadequate. That I am not adequate as a person. That I don't fit into this society and so on, including some other terms like, that I have some cognitive handicaps or ‑ ‑ ‑
HIS HONOUR: So it is various personality disorders that are the basis of the ‑ ‑ ‑
MS BAHONKO: No, no. They just said kind of - I am not sure if it - there is a mixture because, you know, all they imputed - it doesn't have to be sensible because I am reasonable. I told it many times. I just repeating what they imputed.
HIS HONOUR: Yes.
MS BAHONKO: I don't agree with them or - but this affected my life because RMIT actually follow my employment path, when I work and so on, and was connection with RMIT and when I work and even when I submitted - the second time I submitted my thesis, while one of the RMIT officer make remarks that if someone changes work and jobs very often, doesn't hold for the job for so long, receives sort of cold, short and nasty letters.
In my presence - he came to the office when I was there. That is not fit to receive Doctor of Education degree on this basis that - on this basis so obviously there was a connection between my imputed disability by - at my work place and by my employer in the way I am treated by RMIT who believes that - obviously takes the supposed - supposed employer and believes that I am person, like I am, may not - they don't want simply to award the ‑ ‑ ‑
HIS HONOUR: Well, I understand what you say about that.
50 Ms Bahonko challenged Ms Alison O'Brien's submission that the Minister for Education was not vicariously liable for any unlawful discrimination on the part of either RMIT or VIT. She noted that when RMIT had financial difficulties, the Minister for Education had become involved in its affairs. This proved that the Minister interfered in tertiary education. Plainly the Minister was also liable for VIT's conduct in first granting and then refusing her a waiver.
51 Mr Jorgensen, in reply, noted that Ms Bahonko had lodged an appeal to the relevant university body that dealt with complaints arising out of theses that had been failed. He said his instructions were that her appeal was still pending and that it had been deferred until the Court dealt with this application.
52 Mr Jorgensen went on to explain the difference between a decision by the Commission under s 32(3)(c)(ii) and a decision under s 46PH. He submitted that, in accordance with s 46PO(3), a complaint terminated under s 46PH could be reviewed under s 46PO, but a complaint terminated under s 32(3)(c)(ii) could not be brought pursuant to Pt IIB, Div 2 of the HREOC Act. He submitted that it followed that Ms Bahonko's complaints regarding religious or political discrimination could not be dealt with in this proceeding, and her only recourse in relation to those matters was to bring proceedings under the Administrative Decisions (Judicial Review) Act. That she had not done.
53 Mr Jorgensen submitted that it was clear from Ms Bahonko's affidavit, and her detailed written submissions, which she had read to the Court, that she had not identified how either her race, or her disability, had played any role in the decision of the examiners requiring her to resubmit. It was plain that she had failed to satisfy the examiners that she met the requirements of a doctoral degree.
54 Ms Alison O'Brien submitted that Ms Bahonko had been unable to point to any evidence that suggested that the Minister had treated her less favourably on the basis of race or disability. She submitted that Ms Bahonko's affidavit, at its highest, referred to her having been treated with contempt and in a highly offensive and discriminatory manner. Sweeping assertions of that kind ought not be accepted as meeting the threshold for the exercise of the Court's discretion in favour of an extension of time.
55 Ms Frances O'Brien then sought to agitate VIT's Notice of Motion. She submitted that Ms Haslam's affidavit made it plain that the sole reason for withdrawing the fee waiver, which had been based upon a condition that Ms Bahonko not engage in paid employment, was the policy that applied to all teachers in this State. She relied upon s 31A of the Federal Court of Australia Act 1976 (Cth), submitting that it would be futile to grant an extension of time because Ms Bahonko's claim against VIT had no reasonable prospect of success. Indeed, she went further and submitted that it had no prospect of success.
56 Ms Bahonko was then given a final right of reply. She submitted that RMIT had put on no evidence to show that it had not discriminated against her, and that it ought therefore be concluded that it had. Indeed, she submitted that the evidence of discrimination on the part of RMIT was "overwhelming".
57 Ms Bahonko challenged Mr Jorgensen's submission as to the structure and operation of the HREOC Act, submitting that she was entitled to argue a case of religious and political discrimination. She sought, and was granted, time to file further submissions regarding that issue.
58 Ms Bahonko's further submissions did not comply with my direction that they be limited to responding to Mr Jorgensen's submission that she could not pursue her claims for religious and political discrimination in this proceeding. Instead, she set out in some detail a series of complaints against, inter alia, the Commission, the Federal Government, the Federal Court and the justice system as a whole. I will not labour the point, but the document in question is of little assistance to Ms Bahonko in meeting Mr Jorgensen's submission, essentially making only one point of substance regarding the need to avoid fragmentation.