Lina Obieta v New South Wales Department of Education and Training and Ors

Lina Obieta v New South Wales Department of Education and Training and Ors - [2007] FCA 86 - FCA 2007 case summary — Zoe

INDEX page number INTRODUCTION I SUMMARY OF FACTS II SPECIFIC ISSUES COMPLAINTS AGAINST MR NORMAN 1. 'Blue eyed - Brown eyed' incident 2. Award of low marks 3. Reference to hostile people 4. Refugee allegation 5. Afghani Detainee 6. Reference to shoes of Imelda Marcos 7. Centrelink allegation 8. Roll call allegation 9. Failure to mark fairly 10. Fast dictation 11. Gay incident 12. Allegations of sexual discrimination Victimisation 13. Writing on the board 14. Costs agreement 15. Date of course ending 16. More favourable treatment for Ms Ramos 17. Approach of Mr Norman to Ms Obieta 18. Credit/distinction 19. Throwing of examination papers 20. Cheezels Incident COMPLAINTS AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 20. The Cheezels incident 21. Mimic of a duck or chicken 22. Verbal behaviour of Ms Davis 23. Allegations of tutoring 24. Apprehension of bullying 25. Claim in relation to unnamed Asian student COMPLAINTS AGAINST MS FOGARTY AND MRS ELFERT 26. Interference with right to ask questions COMPLAINTS AGAINST 'AUSTRALIAN STUDENTS' 27. Victimisation by students COMPLAINTS AGAINST MRS ELFERT 28. Misleading information provided by Mrs Elfert COMPLAINT AGAINST MS ILLINGWORTH 29. Failure to comply with agreement to have test independently reviewed and re-marked COMPLAINT AGAINST MR STEWART 30. Discrimination in provision of services COMPLAINTS AGAINST MS ILLINGWORTH 31. Grades of other students 32. Mr Stewart was not an assessor 33. Denial of access to interview records and grades 34. Request for the removal of the word 'Deferred' on test results COMPLAINT AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply Transcript of Record COMPLAINT AGAINST MR HASSETT 36. Less favourable treatment COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman COMPLAINTS AGAINST VETAB 38. Failure to undertake audit of Students' records 39. Vicarious liability of VETAB 40. VETAB not providing remedy to complaints COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide information relating to the examination COMPLAINT AGAINST TAFE 42. Failure to obtain diploma COMPLAINT AGAINST DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action COMPLAINTS AGAINST TAFE 44. Failing to take appropriate action 45. victimisation in relation to exclusion from supplementary exams 46. No offer to sit supplementary exams 47. TAFE did not award Diploma 48. TAFE did not award Diploma and hindered career opportunities III RELEVANT LEGAL PRINCIPLES Racial Discrimination Sexual Discrimination, sexual harassment and victimisation IV CREDIT V FINDINGS COMPLAINTS AGAINST MR NORMAN 1. 'Blue eyed - Brown eyed' incident 2. Award of low marks 3. Reference to hostile people 4. Refugee allegation 5. Afghani Detainee 6. Reference to shoes of Imelda Marcos 7. Centrelink allegation 8. Roll call allegation 9. Failure to mark fairly 10. Fast dictation 11. Gay incident 12. Allegations of sexual discrimination Victimisation 13. Writing on blackboard/white board 14. Costs agreement 15. Date of course ending 16. More favourable treatment for Ms Ramos 17. Approach of Mr Norman to Ms Obieta 18. Credit/distinction 19. Throwing of examination papers 20. Cheezels Incident COMPLAINTS AGAINST MS ALEXIE DAVIS 16. Wrong name called in class 20. The Cheezels incident 21. Mimic of a duck or chicken 22. Verbal behaviour of Ms Davis 23. Allegations of tutoring 24. Apprehension of bullying COMPLAINTS AGAINST MS RYISSA FOGARTY 26. Interference with the right to ask questions COMPLAINTS AGAINST AUSTRALIAN STUDENTS 27. Allegations of victimisation by students COMPLAINT AGAINST MRS SUSAN ELFERT 28. Misleading information provided by Mrs Elfert COMPLAINTS AGAINST MS NEREDA ILLINGWORTH 29. Failure to comply with agreement to have test independently reviewed and re-marked COMPLAINT AGAINST MR STEWART 30. Discrimination in provision of services COMPLAINT AGAINST MS ILLINGWORTH 31. Grades of other students 32. Mr Stewart was not an assessor 33. Denial of access to interview records and grades 34. Request for the removal of the word 'Deferred' on test results COMPLAINTS AGAINST MS CONNELLAN 35. Refusal by Ms Connellan to supply transcript of record COMPLAINT AGAINST MR HASSETT 36. Less favourable treatment COMPLAINT AGAINST TAFE 37. Failure to act on complaints against Mr Norman COMPLAINT AGAINST VETAB 38. Failure to undertake audit of students' records 39. Vicarious liability of VETAB 40. VETAB not providing remedy to complaints COMPLAINT AGAINST MRS ELFERT 41. Complaint to Ms Illingworth concerning Mrs Elfert's failure to provide infromation relating to the examination COMPLAINT AGAINST TAFE 42. Failure to obtain diploma COMPLAINT AGAINST THE DEPARTMENT OF EDUCATION AND TRAINING AND VETAB 43. Failure to take appropriate action COMPLAINTS AGAINST TAFE 44. Failure to take appropriate action 45. Victimisation in relation to exclusion from supplementary exams 46. No offer to sit supplementary exams 47. TAFE did not award diploma 48. TAFE did not award diploma and hindered career opportunities VICARIOUS LIABILITY CLOSING SUBMISSIONS CONCLUSION

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I SUMMARY OF FACTS 3 In 2003-2004 Ms Obieta was enrolled at the TAFE Sydney Institute, Ultimo undertaking a two year part time course known as the Diploma of Business-Legal Services. Although no cause for complaint arose in 2003, during May of 2004 Ms Obieta made allegations with respect to the conduct of her course, and against Mr David Norman, her teacher. Such complaints were made only after Ms Obieta received a grading of credit in her examination. She claimed that she was entitled to a mark entitling her to the grade of distinction. Her allegations against other teachers arose in consequence of their refusal to accede to her demands for higher marks to qualify her for a distinction. Her complaints against TAFE, VETAB and the Department were made following her dissatisfaction with the rejection by them of the complaints against her teachers and the administration. 4 On 24 May 2004 Ms Obieta had raised matters of complaint concerning the alleged conduct of Mr Norman with the Head Teacher, Business Administration and Technology, Ms Nereda Catherine Illingworth. Those issues concerned not only the alleged conduct of Mr Norman in the classroom but also raised a complaint alleging discrimination based upon Ms Obieta's assertion that she was deliberately awarded poor results for her examination work. 5 On 7 June 2004 Ms Illingworth interviewed Ms Obieta in the presence of Ms Ellen Margaret Lawson, Head Teacher of Business Administration, and Mr Norman. Ms Obieta claims that at this meeting Ms Lawson prevented her from speaking. Ms Obieta complained that she had not been awarded correct marks for her examination. She also claimed that Mr Norman discriminated against her in class as detailed in the issues discussed hereunder. 6 Ms Illingworth requested that Mr Norman provide an apology in respect of statements made in a class discussion which Ms Obieta claims were discriminatory. During this meeting, and in an attempt to resolve their differences, Mr Norman agreed to provide an apology for any misunderstanding arising out of the class discussion. However whether the apology was to be given to the class, or to Ms Obieta, is a matter in issue. An apology was provided, as detailed in the issues, which Ms Obieta claims did not accord with the agreement. 7 Ms Illingworth also arranged for Ms Obieta's examination paper to be reassessed by Mr William Stewart, a teacher in the Business Administration and Technology teaching section of TAFE. On 29 July 2004 another meeting was held convened by Ms Illingworth. Present at that meeting was Ms Obieta, Ms Illingworth, Ms Lawson and Mr Stewart. Ms Clifton, another Head Teacher, arrived later. By the date of this meeting, Mr Stewart had re-marked Ms Obieta's examination paper, as well as the examination papers of all other students in Ms Obieta's class, except one. Mr Stewart increased the marks of Ms Obieta by 2%, which made no difference to her grade of 'credit'. Ms Obieta demanded a distinction, but Mr Stewart explained that he was unable to justify the award of the additional marks necessary for Ms Obieta to achieve such grade. 8 During that meeting Ms Obieta complained that Ms Illingworth, Ms Lawson and Mr Stewart had racially and sexually discriminated against her. Ms Obieta also claimed that Mr Stewart was not a qualified assessor to re-mark her paper. 9 Ms Obieta then complained to Ms Terri Connellan, Assistant Director, Educational Programs of TAFE concerning the conduct of Mr Norman, Ms Illingworth, Ms Lawson and Mr Stewart. As Ms Conellan was absent on leave at that time, Mr Peter Hassett, Chief Education Officer of TAFE reviewed Ms Obieta's complaints. 10 In relation to the reassessment of Ms Obieta's assignment, Mr Hassett satisfied himself that TAFE's Review of Results Policy had been followed. On 11 August 2004 he informed Ms Obieta that following his investigation he believed that the review process was carried out in an equitable manner and that the amendments suggested by Mr Stewart to the original marks granted should be accepted. On 26 August 2004 Ms Obieta responded complaining that Mr Norman continued to be unpleasant and intimidating towards her. 11 Ms Connellan had tried unsuccessfully to contact Ms Obieta on 2 and 3 September 2004 requesting Ms Obieta to contact her. In the absence of any reply Ms Connellan wrote to Ms Obieta on 8 September 2004. Such letter requested that Ms Obieta telephone Ms Connellan's assistant to arrange a suitable time to meet with a view to resolving her issues. No response was received. On 20 September 2004 Ms Connellan contacted VETAB to advise that she could take no further action because of the absence of communication from Ms Obieta. 12 Thereafter Ms Obieta wrote to Margaret Anne Willis, Director of Quality Assurance Services of the NSW Department of Education and Training, complaining of her treatment by Ms Connellan and reiterating the complaints against her teachers. Having reviewed the complaints of Ms Obieta and the conduct by the Officers of TAFE in the review of the complaint, Ms Willis wrote to Ms Obieta on 4 February 2005 stating that VETAB had conducted an investigation of her complaint and was satisfied with the way in which TAFE had managed it. 13 Ms Obieta thereafter referred the conduct of Mr Norman, TAFE and VETAB to the Human Rights and Equal Opportunity Commission ('the Commission'). 14 Ms Obieta instituted these proceedings nominating the Commission as the first respondent. However, Ms Obieta later instituted separate proceedings against the Commission (see Lina Obieta v Human Rights and Equal Opportunity Commission [2006] FCA 1684) and the Court ordered that the Commission be removed as first respondent to these proceedings. 15 The fifth and sixth respondents were fellow students of Ms Obieta. Ms Obieta has alleged that they engaged in conduct which was unlawful pursuant to the SDA, RDA and the HREOC Act. 16 A section entitled 'Specific Issues' considered hereunder contains details of the 48 issues raised by Ms Obieta of alleged discrimination, harassment and victimisation under the RDA and SDA. It follows the same order as contained in the Statement of the Precise Matters raised against each respondent contained in Ms Obieta's submissions filed on 16 June 2006. Such document was prepared in response to the Court's direction that Ms Obieta provide a list of precise matters upon which she relied and the sections of the relevant legislation which she claimed were breached. 17 Some of the alleged breaches refer to definition or explanatory sections, which cannot give rise to a cause of action. Accordingly the Court will make no reference to the alleged breaches of such sections. Further, no cause of action can arise from an alleged breach of an International Convention as claimed by Ms Obieta (see Tasmanian Wilderness Society Inc and Others v Fraser and Others (1982) 153 CLR 270 at 274 per Mason J). Accordingly the Court will similarly not refer to articles of International Conventions which Ms Obieta claims have been breached.

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'Blue eyed - Brown eyed' incident 18 Mr Norman was Ms Obieta's teacher of the modules Interaction in a Legal Office, Interaction with Other Parties and Advocacy Skills, each of which were part of the TAFE course for the Diploma of Business-Legal Studies. 19 On Wednesday 5 May 2004 during a class exercise relating to discrimination, Mr Norman proposed that the class be divided into different groups and that each group would be required to report, either 'for' a particular argument or 'against' it. He made a comment to the effect 'my two blue-eyed good friends over here would report that there is discrimination and the other group would report there is no discrimination'. Ms Obieta says that Mr Norman indicated that one who would be advocating that there was no discrimination came from the Philippines, thereby indicating Ms Obieta, and the other had a history of China, thereby indicating Ms Chong, another student in the class. Ms Obieta claims that by reason of Mr Norman saying such words loudly and repeatedly on two occasions, she felt discriminated against. She alleges that such conduct breached ss 9 and 18C of the RDA. 20 Mr Norman states that as part of the Advocacy Skills module he decided that a short class debate would be appropriate to give the class confidence in public speaking. Following a discussion amongst the class members it was agreed that 'discrimination in Australia' was an appropriate topic. He requested Ms Obieta and Ms Chong to debate that there was no discrimination and addressed two other students and asked them to prepare the opposite argument. Mr Norman has deposed that the four students selected were chosen solely because they were sitting closest to him in the front row of the class. He acknowledges that Ms Obieta requested that she debate that there was discrimination but as he considered she would benefit from arguing the opposite case to improve her advocacy skills, he said to Ms Obieta words to the following effect: 'Being a good advocate often means having to work outside your comfort zone. As such I would like you to debate there is no discrimination.'

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Afghani Detainee 36 On 19 May 2004, a class discussion was held concerning a recent program televised on Australian Story relating to an Afghan detainee. Mr Norman asked the class to consider the general needs of detainees. Ms Davis answered 'entertainment'. Mr Norman allegedly said 'Are they allowed to have sex there? Can they make sex there?' to which Ms Davis replied 'yes'. Mr Norman allegedly responded 'What do they use? Do they use condoms?' 37 Ms Obieta claims that Mr Norman's remarks were irrelevant to the discussion and that he raised the subject of sex for the purpose of intimidating and humiliating the listeners. Ms Obieta claims that she felt sexually harassed and humiliated on that ground and therefore Ms Obieta claims that his conduct breached s 28F of the SDA. 38 Mr Norman denies that a conversation took place in the manner described by Ms Obieta and denies particularly that he said the words attributed to him. He says that the class discussion commenced to consider the issues an advocate would need to consider if they were representing a detainee. Amongst the issues identified were health (physical, mental and sexual), language, customs and traditions, religious beliefs and education of children. It was in the context of discussing health issues that the question of sexual relations and birth control arose. Ms Davis asked whether there was entertainment in detention. Mr Norman responded, 'What do you mean?' Ms Davis responded, 'You know, entertainment.' 39 Mr Norman understood Ms Davis reference to 'entertainment' to be a reference to sexual relationships and he accordingly said 'Do you mean sexual health issues?' He says he made such statement because he wished to maintain the class focus on issues that would need to be considered by an advocate acting for a detainee. The class discussion then moved on to consider the issues of sexual health and birth control and how an advocate for a detainee would need to give consideration to such matters if they arose. He particularly recalls the issue of birth control because the class discussion moved on to consider the possible impact of HIV and Hepatitis on a person in detention. 40 Ms Davis acknowledges that following a discussion considering the needs of a detainee she raised in a sarcastic manner the entertainment needs and acknowledged that she meant the sexual health needs of a detainee.

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Interference with right to ask questions 108 Ms Obieta claims that Ms Fogarty deprived her of the right to ask questions during class discussions during the Litigation module and that this constituted discrimination. Ms Obieta claims that Mrs Elfert, her teacher in the modules of Litigation and Routine Legal Office Functions, supported Ms Fogarty and told Ms Chong and Ms Obieta not to ask questions during class discussions but to ask the questions after the class. Ms Obieta claims that the Australian students were permitted to ask questions during class discussions. As such Ms Obieta claims that Mrs Elfert treated her unfairly and less favourably than the other students. 109 Ms Obieta claims that Ms Fogarty's behaviour had the purpose of undermining and endangering her study or work performance or academic success or progress. She claims that Ms Fogarty isolated her by denying resources required to learn and violated her fundamental right in education. Ms Obieta says that Ms Fogarty came up to her seat on 28 October 2004 and said: 'I hate this class. I don't want to attend this class any more'. 110 Ms Obieta found such comment intimidating and offensive and capable of inciting the class to feel hatred towards her. As such Ms Obieta claims that such conduct was a breach of ss 9, 17, 18C and 27 of the RDA. 111 Ms Fogarty denies that she treated Ms Obieta in the manner alleged and denies that she deprived her of any opportunity as claimed to ask questions. She says that she asked Ms Obieta to consider that the other class members were also entitled to the same rights that she asked of the other class members. She said at one stage Ms Obieta started 'screeching' and verbally abusing her when it was suggested to Ms Obieta that she should reciprocate the same rights to other students. In a letter written by Ms Fogarty to Ms Illingworth and hand delivered on 28 October 2004, Ms Fogarty stated: 'Often it would take the lecturer a minimum of five minutes to answer a single question she [Ms Obieta] poses and this takes up a lot of class time resulting in very late finishes. This is not an isolated incident - since commencing this course last year she has constantly caused large gaps in the class time whilst lecturer's [sic] have spent vast amounts of time teaching her one-on-one to the detriment of her class mates.'

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Misleading information provided by Mrs Elfert 116 Ms Obieta claims that Mrs Elfert did not provide her with vital information and supplied her with wrong or incorrect information relating to assessment guidelines, notes, lessons and requirements pertaining to the exams in the modules of Litigation and Routine Legal Office Functions. Mrs Elfert allegedly did not provide to Ms Obieta and Ms Chong the assessment guidelines for those modules, which Ms Obieta claims are mandatory. Ms Obieta claims that she and Ms Chong asked Mrs Elfert the requirements for the exam in the litigation module and Mrs Elfert provided the wrong information by informing her that the examination was one in which books were not allowed. Ms Obieta claims that Ms Elfert breached ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 117 Mrs Elfert recalls Ms Obieta asking her what materials can be taken into the examination. She responded 'Just check the Study Guide.' Mrs Elfert denies that she failed to provide the assessment guidelines as alleged. She states that she always handed out the guidelines at the commencement of the module which would have been in July 2004 in this instance. She states that she also showed the assessment requirements on an overhead displayed for the first three or four classes. She told the students it was a matter for them whether they wished to purchase the recommended texts and that they were in any event available in the library. She says it was the responsibility of each student to determine whether they would buy text books or borrow them. 118 Mrs Elfert denies the assertion of Ms Obieta that she informed the class that the exam would be 'closed'. She told the class that in the past the examination had been 'closed' but they needed to check the study guide as to whether or not books and notes could be brought into this exam. She states that in fact the only relevant extract of any text book was printed out in full in the examination paper with the result that examinees had no need to refer to the text book. She denies that she failed to provide Ms Obieta with vital information and that she supplied Ms Obieta with incorrect information. Mrs Elfert also says that the exam was internally set and that the material that she taught to the students in her classes corresponded with the module assessment guidelines. She also states that the examinations for those modules were publicly marked by a panel. Ms Obieta did not pass the exam but she was not the only student who failed. She said that Ms Chong re-sat the examination and passed. 119 Ms Davis testified that Mrs Elfert, at the commencement of a module would put the assessment guidelines on an overhead projector and would explain the assessment guidelines to the class. Ms Davis says that this occurred on several occasions. 120 Ms Fogarty confirmed the evidence of Mrs Elfert and Ms Davis, and said that Mrs Elfert encouraged students to take notes on the assessment guidelines. Ms Fogarty also confirmed Mrs Elfert's evidence that she told the students that it was their decision to purchase text books. She remembers Mrs Elfert telling the class that the necessary books were available in the library and that she encouraged the students to use the library rather than incurring expenditure in purchasing the books.

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Failure to comply with agreement to have test independently reviewed and re-marked 121 Ms Obieta claims that at the meeting held on 7 June 2004 she asked Ms Illingworth, Head Teacher, for an independent assessment of her class test and report/assignment in the modules taught by Mr Norman and that Ms Illingworth agreed that an independent assessor would undertake such task. Ms Obieta says it was also agreed that Mr Norman would apologise to her in front of the class but that Mr Norman only apologised to the class and not to her. Accordingly, Ms Obieta claims that Ms Illingworth failed to comply with the agreement to have her test reviewed independently and to have her papers marked by an independent assessor. 122 Ms Obieta claims that she was therefore discriminated against by Ms Illingworth in breach of ss 9 and 13 of the RDA and s 21 of the SDA. 123 Ms Illingworth states that on 24 May 2004 Ms Obieta informed her that she wished to make a complaint concerning Mr Norman and said that Ms Obieta was not happy with the grade she had received for the Interaction in a Legal Office module. Ms Illingworth told Ms Obieta that she could ask Mr Norman for a review. Ms Obieta responded that she had requested a review but that Mr Norman had not done so. 124 Ms Illingworth says that Ms Obieta then began to speak to her in an agitated manner and made allegations against Mr Norman. Ms Illingworth informed her that the allegations she was making were serious and that she should put them down in writing and that she would ask Mr Norman to review the marks. Ms Illingworth denies that she told Ms Obieta to come back on the following day, as Ms Obieta alleges. 125 Ms Illingworth agrees that Ms Obieta asked her on 25 May 2004 if she had talked to Mr Norman concerning her grades. Ms Illingworth responded that she had not done so because Mr Norman, a part-time teacher, had not been at TAFE since she last spoke with Ms Obieta. On the afternoon of 26 May 2004 Ms Illingworth and Mr Norman had a conversation in which Mr Norman was asked to re-mark the exam. 126 On Monday 31 May 2004 Ms Illingworth received a letter of complaint from Ms Obieta concerning Mr Norman. Ms Illingworth informed Ms Obieta that no examination papers would be returned until Mr Norman was instructed to do so. The only complaint made by Ms Obieta in the letter was in relation to her marks. Upon receiving such letter Ms Illingworth telephoned Ms Obieta to tell her that such letter did not make any complaints of the kind she had referred to during her brief conversation with Ms Illingworth. 127 A meeting was then arranged for Ms Obieta, Ms Illingworth and Mr Norman on 7 June 2004. The meeting was attended also by Ms Ellen Lawson, another Head Teacher from the section, as an observer. Prior to the meeting commencing, Ms Obieta was allowed time to read a letter written by Mr Norman in response to her complaint. Having read the letter, Ms Obieta alleged that Mr Norman had 'twisted what had happened'. 128 An agenda for the meeting was then given to Ms Obieta prepared by Ms Illingworth. Ms Illingworth says that she agreed to arrange for an independent assessor who was one of the day teachers, to review the assignment. Because Ms Obieta then alleged bias, Ms Illingworth informed her that the class tests of all the students would be re-marked and compared to each other. 129 With regard to the 'hostile people' remark which was discussed, Mr Norman responded that he made reference to that issue in a light-hearted fashion to bring the class to order. 130 Ms Illingworth said that Ms Obieta became very aggressive and was yelling much of the time. Ms Illingworth did not prevent her talking. 131 Ms Obieta had made allegations that Ms Illingworth had referred to Ms Davis as a 'bully' and that some of the students had been offended by the 'sex and condom' issue. Ms Illingworth denies that she made any such remarks. Ms Norman explained that he had raised the issue of 'sex and condom' relevantly in class discussions on health issues. 132 With regard to the 'Centrelink' issues, Ms Illingworth noted that there was no way of resolving the disagreement between Mr Norman and Ms Obieta and accordingly said that she would interview the class members concerning the issues raised by Ms Obieta. 133 Ms Illingworth denies that it was agreed that Mr Norman would apologise personally to Ms Obieta. She states that it was agreed that Mr Norman would apologise to the class for any offence or misunderstanding caused by the class discussion and Mr Norman indicated that he was prepared to do so. 134 Pursuant to the arrangement for a review, Ms Illingworth instructed Mr William Stewart, a teacher, to undertake the review and the review was undertaken. 135 Miss Illingworth then interviewed 21 students. She maintained confidentiality by not revealing who had made the complaint against Mr Norman, and requested each student to keep the interview confidential. 136 Ms Illingworth received Mr Stewart's results of the review and re-mark, which made minor adjustments to 7 of 25 student's results. In Ms Obieta's case, the marks were marginally increased for the class examination from 67.5 to 69.5. Such adjustment did not alter the grade awarded to Ms Obieta. 137 Ms Illingworth then requested Mr Stewart to mark the assignment of Ms Obieta, and of two other students. Mr Stewart undertook such task, and provided marks for the assignments of the three students. 138 Ms Illingworth arranged a meeting with Ms Obieta which took place on 29 July 2004. Present were Ms Obieta, Ms Illingworth, Mr Stewart and later, Ms Clifton. Ms Obieta was informed of the results of the review and re-mark and that investigations were concluded. 139 Ms Clifton explained the results to Ms Obieta, and showed Ms Obieta where the additional marks had been awarded. However, Ms Obieta said that she wanted a grade of distinction. Mr Stewart said that there were not sufficient marks to reach that level and Ms Obieta requested another review and re-mark. Ms Clifton refused such request and informed her that her record would show 'deferred results' until the matter was resolved. 140 Ms Illingworth denies that Ms Obieta requested a copy of her class test under the Freedom of Information Act. Subsequently her results were changed from 'deferred result' to her reviewed result as determined by Mr Stewart.

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Refusal by Ms Connellan to supply Transcript of Record 157 Ms Obieta wrote to Ms Terri Connellan, Assistant Director of Education Programs, in relation to the complaint concerning the alleged discriminatory behaviour of Mr Norman and Ms Illingworth and also asked for an appeal for the review/reassessment of her class test and report/case study by an independent assessor. She also asked for a copy of the mark of the class test pursuant to 'Freedom of Information', and that the 'Deferred' results be removed from her Transcript of Record. She also requested that she be supplied with the amended Transcript of Record with the re-marks by an independent assessor and the written result of the investigation in relation to her complaint against Mr Norman's alleged discriminatory conduct. Ms Connellan declined to accede to such requests. Ms Obieta claims that in consequence she was discriminated against in breach of ss 9, 13 and 27 of the RDA and ss 21 of the SDA. Further she claims that the Department of Education and TAFE respondents failed to prevent discrimination and failed to implement its 'Staff and Student's Policies'. 158 Ms Connellan says that as she was on leave she did not see or respond to a letter which Ms Obieta wrote dated 3 August 2004 which itemised her requests. Mr Hassett, acting in Ms Connellan's role responded by a letter dated 11 August 2004. 159 Ms Connellan says that when she returned from leave on 30 August 2004 she had a discussion with Mr Hassett concerning the complaint and saw both Ms Obieta's letter and the response. 160 On 1 September 2004 Ms Connellan became aware that Ms Obieta had made a complaint to VETAB and following a discussion with an officer in VETAB it was agreed that her complaint would be managed by TAFE in accordance with TAFE's complaints policy namely 'Responding to Suggestions, Complaints and Allegations Policy'. A further letter was sent by Ms Obieta to Mr Hassett dated 26 August 2004 alleging discrimination. Ms Connellan attempted to contact Ms Obieta and left several messages requesting that she communicate with her. Such messages were left on Ms Obieta's mobile telephone but no response was received. 161 Ms Connellan met with Ms Illingworth on 2 September 2004 and 6 September 2004 to discuss the management of Ms Obieta's complaint. Ms Connellan also spoke to Mr Hassett concerning Ms Obieta's letter of 26 August 2004. 162 On 8 September 2004, having received no response to her messages requesting that Ms Obieta contact her, Ms Connellan wrote to Ms Obieta informing her that attempts had been made to contact her in relation to the issues raised and that messages had been left on her home number on two days of the previous week. Ms Connellan requested that Ms Obieta contact her. The letter was addressed to Ms Obieta's postal address. No response was received from Ms Obieta. 163 On 20 September 2004, in the absence of any communication from Ms Obieta, Ms Connellan contacted VETAB to advise that no further action on her part was possible because Ms Obieta had failed to respond to requests for communication. On 14 December 2004 Ms Connellan received a facsimile from Ms Margaret Willis, the general manager of VETAB advising her that Ms Obieta had made complaints. By letter dated 20 December 2004 Ms Connellan responded to Ms Willis informing her of the attempts to communicate with Ms Obieta and that so far as possible the complaint had been resolved to the best of her ability.

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Less favourable treatment 164 Ms Obieta states that she received a letter from Mr Peter Hassett, Chief Education Officer at Ultimo TAFE, advising her that the investigation process had been carried out in an equitable manner. He also advised that the mark should stand and that she would receive a new Transcript of Record shortly and that the internal action had been appropriate. 165 Ms Obieta claims that Mr Hassett's conduct was discriminatory because he denied her access to benefits provided by an education institution and that she received less favourable treatment. Further she claims that the Department of Education, VETAB and TAFE failed to take all reasonable steps to prevent the discrimination. Ms Obieta claims that such conduct breached ss 9, 13 and 27 of the RDA and ss 21 and 94 of the SDA. 166 Mr Hassett says that he became aware that on 3 August 2004 Ms Obieta had written to Ms Connellan during her absence. Upon receipt of the letter he proceeded to investigate the complaints and in doing so spoke to Ms Illingworth. He ascertained the procedures that had been used in accordance with the Review Policy. Ms Illingworth had informed him that Ms Obieta's class papers had been sent to Mr Stewart for reassessment. Mr Hassett says he did not know Mr Stewart but understood him to be a teacher in the Legal Studies section of TAFE NSW Sydney Institute. He also inspected Mr Stewart's reassessment. 167 Mr Hassett spoke to Ms Lawson, another Head Teacher in the Business Administration and Technology teaching section. He satisfied himself that the correct procedures had been adopted. 168 Mr Hassett says that he noted Ms Obieta's request under the Freedom of Information Act 1982 (Cth) but states that at that time it was his understanding that requests had to be made in a more formal manner. He believed that a formal request would need to have been sent by an applicant for information to the Freedom of Information Unit of the Department of Education and Training for response. Mr Hassett acknowledges that his assumptions may have been incorrect but his action in declining to make the invitation available was not because of Ms Obieta's background, race or sex. He states he knew nothing of her background. 169 With regard to Ms Obieta's allegation that she requested her Transcript of Record with re-graded marks, Mr Hassett states that the records of TAFE NSW Sydney Institute database shows that Ms Obieta's re-graded results were sent to her on 6 August 2004. 170 Mr Hassett acknowledges that Ms Obieta again wrote on 26 August 2004 to him complaining of Mr Norman's conduct and that such letter had been received on 2 September 2004. He did not respond since Ms Connellan had taken over the conduct of Ms Obieta's complaint.

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Racial Discrimination 206 Section 9(1) of the RDA makes it unlawful for a person to do any act that constitutes racial discrimination. 207 For Ms Obieta to establish that any of the conduct of which she complains amounts to racial discrimination under s 9(1) of the RDA she must establish the occurrence of an act involving 'a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin' which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of Ms Obieta's human rights or fundamental freedoms: see s 9(1) of the RDA. 208 The elements that Ms Obieta must establish to prove race discrimination within the meaning of s 9(1) of the RDA are as follows: a person must do an 'act'; the act must involve either a 'distinction', 'exclusion', 'restriction' or 'preference' in the areas of 'social' or 'cultural' life or any 'field of public life'; the act must be based on race; the act must have either the purpose or the effect of impairing a human right; and the relevant 'human right' is identified. 209 The expression 'act' is not defined in the RDA. The determination of whether there has been a 'distinction', 'exclusion', 'restriction' or 'preference' must be determined objectively based on an assessment of the evidence. 210 The requirement to identify that the particular 'distinction', 'exclusion', 'restriction' or 'preference' was 'based on' Ms Obieta's race has been the subject of judicial determination in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 91 FCR 8. At [33] the Court considered that the words 'based on' required a test of 'sufficient connection' with race rather than a 'causal nexus'. Weinberg J distinguished the expression 'based on' from other constructions used elsewhere in Federal anti-discrimination legislation (such as 'by reason of' or 'on the ground of'). The words 'based on' encompass a broader meaning of 'by reference to' and are not limited to 'by reason of' (at [30]). What is required is a close relationship, between the designated characteristic and the impugned conduct, which is not necessarily causal (at [33]): see also Baird and Others v Queensland (No 1) (2005) 224 ALR 541 and Commonwealth v McEvoy and Another (1999) 94 FCR 341 for an analysis of the meaning of 'based on'. 211 The effect of s 18 of the RDA is that Ms Obieta does not have to establish that race was the only reason for the act. It is sufficient if it were one of the reasons. 212 The standard of proof that is required to establish unlawful conduct under s 9 of the RDA was considered in Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91. The Full Court at [40] said: 'It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen No 2 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.' 213 Under s 9 it is also necessary to establish the relevant human right which has been impaired because of race. The expression 'human right' for the purpose of the RDA incorporates the rights set out in the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) scheduled to the RDA. The preamble to the RDA recites the entry into force of the CERD and the desirability of parliament making provision for giving effect to the CERD. Von Doussa J in Commonwealth v McEvoy and Another 94 FCR noted at [31] that: 'It is apparent that in adopting the phrase "race, colour, descent or national or ethnic origin" in s 9…Parliament has transported into the domestic law of Australia, through the RDA, text from Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination'

[70]

214 In addition it was noted in Gerhardy v Brown (1985) 159 CLR 70 that for the purposes of s 9 of the RDA 'human rights' may include those included in other international instruments to which Australia is a party. One such other instrument is the International Covenant on Civil and Political Rights (ICCPR) (as provided in Schedule 2 to the HREOC Act) which is relied upon by Ms Obieta. 215 To succeed in establishing a claim under s 9(1A) of the RDA that there was an act involving a distinction based on, or done by reason of, her race, colour, decent or national or ethnic origin, Ms Obieta must establish that a term, condition or requirement that was not reasonable in the circumstances was imposed upon her (see s 9(1A)(a)). As was held by McHugh J in Waters and Others v Public Transport Corporation (1991) 173 CLR 349 at 406 in reference to a similar provision in Victorian anti-discrimination legislation (see s 17(5)(a) Equal Opportunity Act 1984 (Vic)), such term, condition or requirement would need to be identified with precision. 216 Further, under s 9(1A)(b) Ms Obieta must established that she does not or cannot comply with the term, condition or requirement and under s 9(1A)(c), that the requirement has the purpose or effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as Ms Obieta, of any relevant human right or fundamental freedom. 217 Section 10 of the RDA relevantly provides for a right of equality before the law and that the laws of the Commonwealth, States and Territories are to apply generally to all people regardless of their race, colour, national or ethnic origin. Ms Obieta must show that under a particular law, she does not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or that she enjoys that right to a more limited extent. Once this has been established then notwithstanding the particular law in question, by force of this section, she is entitled to enjoy the right to the same extent as persons of another race, colour or national or ethnic origin. 218 Section 13 of the RDA specifically deals with the provision of goods and services to the public and makes it unlawful for a person to refuse or fail to supply goods or services to another person or to do so on less favourable terms because of the race, colour or national or ethnic origins of that other person. To establish a claim under this section, Ms Obieta must establish that by reason of her race, colour or national or ethnic origin or that of any of her relatives or associates, the supply of goods or services was refused to her or that there was a failure on her demand to supply such goods or services (s 13(a)). Such claim could be established if such goods or services were supplied to Ms Obieta on terms or conditions less favourable than such goods and services would otherwise be supplied by reason of Ms Obieta's race, colour or national or ethnic origin or that of her relatives or associates (s 13(b)). 219 Section 18 of the RDA is a deeming provision which provides that if an act is done for two or more reasons and one of the reasons is because of the race, colour, descent or national or ethnic origin of a person, then for the purposes of Part II of the RDA, the act is taken to have been done for that reason. Under s 18(b) there is no requirement that the reason for the act being the race, colour, descent or national or ethnic origin of the person be the dominant reason or a substantial reason for doing the act. 220 Section 18A of the RDA provides that employers or principals are vicariously liable for the acts of their employees or agents in circumstances that if the act was done by the employer or principal it would be unlawful under Part II of the RDA. Section 18A(2) provides that vicarious liability does not apply to an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. For Ms Obieta to establish a claim under this section she must establish that there was an act; that the act was done by an employee or agent of a person; that the act was done in connection with his or her duties as an employee or agent (s 18A(1)(a)); and that the act would be unlawful under Part II of the RDA if it were done by that person (s 18A(1)(b)). 221 Section 18C of the RDA makes it unlawful for a person to do any act (otherwise than in private) if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people (see s 18C(1)(a)). Pursuant to s 18C(1)(b), the act must have been done because of the race, colour or national or ethnic origin of the other person or all of the people in the group. Thus the first inquiry of s 18C is whether the act in question, can in the circumstances be regarded as reasonably likely to offend or humiliate a person in Ms Obieta's position. 222 In Bropho v Human Rights and Equal Opportunity Commission and Another (2004) 135 FCR 105, French J observed at, [69] that the words 'offend, insult, humiliate or intimidate' are to be considered according to 'their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation…' . These objectives, it was noted, are to be gleaned not only from the words of the legislation but also from extraneous material such as, inter alia, the Second Reading Speech of the Racial Hatred Bill 1994 (Cth) ('Second Reading Speech'). The Second Reading Speech provides that the Act was intended to 'close a gap in the legal protection available to the victims of extreme racist behaviour': see Bropho 135FCR at [70]. In Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 356-357 Kiefel J said that the conduct which is encompassed by s 18C of the RDA is that which has, 'profound and serious effects not to be likened to mere slights'. 223 Section 18C of the RDA requires the satisfaction of an objective test of the likelihood that the act complained of will have the prohibited effect: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]. The objective nature of the test was also considered in Bropho 135 FCR where French J at [66] citing the Second Reading Speech said: 'Community standards of behaviour rather than the subjective views of the complainant are taken into account' (Australia, House of Representatives Debates (1994), p334).

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228 Section 18E of the RDA is essentially similar to the vicarious liability provision in s 18A of the RDA except insofar as s 18E provides for the vicarious liability of employers or principals for acts of their employees or agents rendered unlawful pursuant to the provisions of Part IIA of the RDA. For Ms Obieta to establish claims under this provision she would have to satisfy the same elements as for s 18A of the RDA. 229 Section 27(2) of the RDA provides for offences relating to the administration of the RDA. To establish her claims pursuant to this section Ms Obieta must demonstrate that the particular respondent acted in a way to intimidate or coerce, or impose any pecuniary or other penalty on Ms Obieta 'by reason that' Ms Obieta had made or proposed to make a complaint of unlawful discrimination, or had furnished or proposed to furnish information to the Commission, or proposed to attend a conference held under the RDA or the HREOC Act. In Microsoft Corporation and Another v Marks (No 1) 1996 69 FCR 117 Beaumont J noted at 137 that a proceeding should be classified as civil or criminal when it is commenced, and where the substance and object of the proceedings are remedial the proceeding should be classified as civil. 230 Despite the fact that one of the options of the Court in s 27(2) of the RDA is the imposition of a penal sentence, it has been held that the civil standard should nevertheless apply where the substance of the proceedings are civil (see In Marriage of Lindsey (1995) 128 FLR 46). The majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449 has emphasised the fact that the ordinary standard of proof in civil litigation is proof on the balance of probabilities even when the matter to be proved involves criminal conduct or fraud (see Rejfek and Another v McElroy and Another (1965) 112 CLR 517 at 519-21). It was also held in that case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. 231 Under s 17(a) of the RDA it is unlawful for a person to incite the doing of acts made unlawful by a provision of Part II of the RDA. Further s 17(b) makes it unlawful for a person to assist or promote the doing of such an act (whether by financial assistance or otherwise). In Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998), in referring to s 17 of the RDA, Commissioner Innes AM stated at 8: 'In order to make out a case under this section the complainant has to show incitement, assistance or promotion of someone carrying out unlawful acts. Incitement denotes encouragement in an active way.'

[75]

Sexual Discrimination, sexual harassment and victimisation 233 Section 5 of the SDA provides a definition of sex discrimination under the SDA and does not of itself give rise to a cause of action. It essentially provides the conditions that are required before a person called the 'discriminator' (s 5(1)) can be found to have discriminated against another person called the 'aggrieved person' (s 5(1)) on the grounds of the sex of the aggrieved person. Under s 5(1) if by reason of the sex of the aggrieved person, or a characteristic that generally pertains to or is generally imputed to a person of that sex, the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of the opposite sex, then the discriminator has discriminated against the aggrieved person. Ms Obieta must establish that the respondent in question treated her less favourably than the respondent would treat a person of the opposite sex in circumstances that are the same or not materially different. 234 Section 21(2) of the SDA renders it unlawful for an education authority to discriminate against a student on the grounds, inter alia, of the student's sex relevantly by denying or limiting the student's access to any benefit provided by the educational authority (s 21(2)(a)); or by subjecting the student to any other detriment ( s 21(2)(c)). 235 For Ms Obieta to establish a claim under s 21(2)(a) of the SDA she must prove that the respondents discriminated against her on the ground of her sex pursuant to the definition in s 5 of the SDA, either by denying or limiting her access to any benefits provided by the educational authority (s 21(2)(a)) or by subjecting her to any other detriment (s 21(2)(c)). 236 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, a case which considered, inter alia, the meaning of 'detriment' in comparable state legislation, the Administrative Decisions Tribunal ('ADT') found that the word 'detriment' should be given its common meaning of 'loss, damage or injury' (at [40]). It was also said in that case that '[t]he detriment suffered… must be real and not trivial' and 'whether something constitutes a detriment must be determined objectively and not subjectively' (at [41]). In Damiano and Another v Wilkinson and Another [2004] FMCA 891 at [23] Baumann FM considered the meaning of detriment gleaned from three authorities as follows: '… [T]he definition of detriment [is] placing a complainant "under a disadvantage of a matter of substance" (Bogie v University of Western Sydney (1990) EOC 92-313) or "suffers a material difference in treatment" (Bailey v Australian National University (1995) EOC 92- 744) which is "real and not trivial" (Sivanathan [sic] v Commissioner of Police (NSW) (2001) NSWADT 44)'

[77]

238 Section 28A(2) defines 'conduct of a sexual nature' as including 'making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing'. Where it is alleged that conduct is unlawful under the SDA, the context of the conduct must be considered. In Cooke v Plauen Holdings [2001] FMCA 91, Driver FM observed that whether an act or statement can constitute sexual harassment will depend upon the nature or the quality of the act or statement. 239 For Ms Obieta to establish her claims under section 28F of the SDA she is required to establish that the relevant staff member (s 28F(1)) or adult student (s 28F(2)) of TAFE sexually harassed her. That is, pursuant to s 28A of the SDA, Ms Obieta would have to establish that the relevant respondent made an unwelcome sexual advance, or an unwelcome request for sexual favours (s 28A(1)(a)) or engaged in other unwelcome conduct of a sexual nature (s 28A(1)(b)) in circumstances in which a reasonable person having regard to all the circumstances, would have anticipated that Ms Obieta would be offended, humiliated or intimidated. 240 Pursuant to s 94(1) of the SDA it is an offence for a person to commit an act of victimisation against another person. Pursuant to s 94(2) Ms Obieta is required to establish that the relevant respondent subjected, or threatened to subject her to any detriment on the grounds that Ms Obieta had or was believed to have made or proposed to make a complaint under the SDA or under the HREOC Act (s 94(2)(a)); or that Ms Obieta had brought or proposed to bring proceedings under the SDA or the HREOC Act against any person (s 94(2)(b)); or that Ms Obieta had furnished or produced or proposed to furnish or produce any information or documents to anybody exercising functions under the SDA or the HREOC Act (s 94(2)(c)); or that Ms Obieta had attended or proposed to attend a conference held under the SDA or the HREOC Act (s 94(2)(d)); or that Ms Obieta appeared or proposed to appear as a witness in proceedings under the SDA or the HREOC Act (s 94(2)(e)); or that Ms Obeita has reasonably asserted or proposed to assert any rights under the SDA or the HREOC Act (s 94(2)(f)); or that Ms Obieta had made an allegation that a person had done an act that is unlawful under Part II of the SDA (s 94(2)(g)). In Damiano [2004] FMCA 891 Baumann FM at [22] said, referring to Bailey v ANU (1995) EOC 92-744, that for victimisation to be established under comparable legislation one of the grounds under a section comparable to s 94(2) of the SDA must be a 'substantial and operative' factor for the alleged action. 241 Under s 105 of the SDA a person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of the SDA, be taken also to have done the act. The meaning of the word 'permit' was discussed in Cooper v Human Rights and Equal Opportunity Commission and Another (1999) 93 FCR 481 at 494-495, [41]-[45]. Moore J in Elliott v Nanda and Another (2001) 111 FCR 240 at 293, [163]explained the operation of s 105 as pertaining to the situation where a person who is in a position to prevent allegedly unlawful conduct fails to do so. His Honour said: 'Section 105 provides a means of bringing about lawful conduct by rendering liable a person who could prevent unlawful conduct from occurring or continuing or who assists, directly or indirectly, in its performance. A person can prevent unlawful conduct by not creating a situation where it will or may take place or altering a situation so it will not continue.'

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IV CREDIT 243 Ms Kim Hua Chong provided two affidavits in support of Ms Obieta's allegations dated 16 June 2006 and 16 September 2006 respectively. Ms Chong told the Court that the affidavits were prepared by herself with the assistance of her cousin who is a solicitor. Many passages were identical, both in the words used and in the punctuation, to the passages relating to the same incidents and recitation contained in Ms Obieta's affidavits. This was apparent in numerous instances in both her affidavits. 244 On 18 October 2006 Ms Chong swore that she did not consult with Ms Obieta, and did not see Ms Obieta's affidavits before she prepared her own affidavits. She swore that the content of her affidavit was from her own memory, and that her cousin assisted her. She denied that her cousin had a copy of Ms Obieta's affidavit. 245 Ms Chong also swore that despite the fact that she was only asked to provide her affidavits close to the time they were sworn, that she nevertheless was able to recollect in detail events and conversations which occurred almost 18 months previously. Ms Chong reiterated that she had not collaborated with Ms Obieta and that the content of the affidavits was from her own recollection. 246 At the request of counsel for the first to fourth respondents, the Court provided a warning relating to perjury and the Court adjourned. 247 The next day on 19 October 2006 Ms Chong indicated that she wished to withdraw from the hearing, and to withdraw her evidence. She read the following statement: 'Your Honour, firstly it is like this. I would like to apologise and extremely sorry for not telling the Court the truth yesterday, because I was stressed being a witness in Court, and workload and work, and my English. Please disregard what I said yesterday. And, secondly, my cousin who is a lawyer did not help me to prepare the affidavit. Thirdly, Ms Obieta help me to draft the affidavit and I sign, because of my English and my grammar is no good. And in the beginning I didn't know that I can withdraw the affidavit because I kept on thinking that I already sign the affidavit. What should I do? Now that I can withdraw the affidavit I decided to withdraw as witness.'

[137]

CLosing submissions 332 At the conclusion of all of the oral evidence on 26 October 2006, Ms Obieta was asked whether there was anything further in her case which she wished to raise. Ms Obieta told the Court that she did not wish to raise any further matters. 333 The hearing was then adjourned to allow the parties to provide written submissions and the hearing resumed on 11 December 2006 for the purpose of hearing submissions. 334 In her written submissions Ms Obieta claimed that she was humiliated, insulted, intimidated and offended with the treatment she had received during the hearing of the matter in Court; that documents were 'struck off' by the Court during the hearing; and that she received unequal treatment. Since the Court was still possessed of jurisdiction, it was concerned to know of the specific matters of which Ms Obieta claimed in order to remedy any alleged unfairness or irregularities. Accordingly the Court asked Ms Obieta to identify the matters she claimed in support of her submissions. 335 Ms Obieta said two medical reports were 'struck off'. In fact they were rejected because the reports were not verified and the makers were not available for cross examination. 336 Ms Obieta also claimed that her class exercise described as her 'portfolio' had been rejected from tender. The Court transcript records that she never sought to tender it on a prior occasion. In response Ms Obieta claims that the transcript had been edited. The Court granted leave to Ms Obieta to re-open the hearing to tender her portfolio. 337 Ms Obieta also claimed that attendance records had been rejected by the Court. In fact they had already been marked as an exhibit. She then complained that she was not allowed to photocopy documents that had been produced on subpoena. It was explained again to her that such order had been made during the hearing to preserve the confidentiality of other persons. Ms Obieta nevertheless had the opportunity to inspect all of the records produced on subpoena during the hearing. 338 Ms Obieta then claimed that she had been 'blocked to ask questions' and that she was forced to ask questions. The transcript does not record that she was ever forced to ask questions. She could not identify any questions which she was prevented from asking and the transcript does not support her submission.

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