Shammas v Canberra Institute of Technology

REASONS FOR JUDGMENT 1 In the period from February 2010 to 31 March 2011, the applicant was a student at the respondent Institute's Southside campus in Canberra. She studied Certificate IV in Business Administration in the full-time class and two subjects of MYOB in the learning centre. 2 By formal complaint dated 6 February 2013 lodged with the Australian Human Rights Commission (AHRC) (the original complaint), the applicant claimed: (a) To have been sexually harassed; (b) To have been discriminated against because of her sex, because of her race, because of a disability which she claims to have and because of her age; (c) To have had her human rights (said to be her right to privacy) breached by Australian Security Intelligence Organisation (ASIO) and staff of the Institute at its Southside campus; and (d) To have been racially vilified. 3 The original complaint was lodged against ASIO, against unidentified employees of ASIO, against the Institute and against six (6) named persons who were either staff employed by the Institute or students at the Institute's Southside campus at the time when the applicant was a student there in 2010-2011. 4 The original complaint comprised nineteen (19) pages of typescript and 138 pages of attachments. 5 By email sent at 4.53 pm on 15 March 2013, the applicant informed the AHRC that she wanted to proceed with only one complaint, namely, her complaint against the Institute itself for encouraging or causing two of its students to sexually harass her. She said that her complaint of sexual harassment related to one incident only. In effect, by that email, she withdrew entirely her complaint against ASIO and its officers. She also withdrew her complaints against the Institute and others of unlawful discrimination against her on the grounds of sex, race, disability and age as well as her claim that her right to privacy had been breached and her claim that she had been racially vilified. She also withdrew her complaint insofar as it related to individual staff and students of the Institute. 6 By a further email sent at 12.38 am on 26 April 2013, the applicant formally confirmed that, by her email of 15 March 2013, she had intended to confine her complaint to her allegation that she had been sexually harassed by the Institute in the sense that it had caused, encouraged or motivated two of its students to do an unlawful act, namely, to sexually harass her. In her email, she said that the two students who she claimed had sexually harassed her had done so as a consequence of the "direct encouragement and motivation" on the part of staff of the Institute. 7 I shall refer to the applicant's complaint as modified by her emails of 15 March 2013 and 26 April 2013 as "the applicant's amended complaint". 8 By Notice of Termination dated 10 May 2013, a delegate of the President of the AHRC terminated the applicant's amended complaint pursuant to s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that the complaint was lodged more than twelve (12) months after the alleged unlawful discrimination took place. In her Statement of Reasons which accompanied the Notice of Termination, the delegate said (amongst other things): In relation to the apparent merit of your complaint [of sexual harassment], I am of the view that there is insufficient information before the Commission at this time to support your claim that CIT instructed [the two students in question] to sexually harass you in the manner you alleged. 9 The applicant commenced this proceeding on 5 July 2013 when she filed an Originating Application under s 46PO of the AHRC Act. In her Originating Application, the applicant claims to be a victim of unlawful discrimination at the hands of the Institute in breach of s 105 of the Sex Discrimination Act 1984 (Cth) (SD Act). She claims compensation. In her Originating Application, her claim is expressed in the following terms: The Applicant claims that: 1. I have suffered sexual harassment by two students in my class when I did a course of Business Administration in Canberra Institute of Technology "CIT" Southside, staff in CIT causing, instructing, inducing, aiding and permitting the doing of that unlawful act under the Sex Discrimination Act 1984 "SDA" and Human Rights Act. 10 Pursuant to a direction of the Court, on 20 September 2013, the applicant filed a Statement of Claim. 11 On 31 October 2013, the Institute filed an Interlocutory Application. By that Interlocutory Application, the Institute seeks an order summarily dismissing the whole of the present proceeding on the grounds that: (a) The proceeding is an abuse of process because it has no reasonable prospect of success; and (b) The Statement of Claim does not disclose any reasonable cause of action against the Institute. 12 The Institute did not rely upon s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) as a basis for its summary dismissal application. 13 The Institute did, however, expressly rely upon r 26.01(a) of the Federal Court Rules 2011 (FCR). The substance of the relevant test under s 31A ("… if the Court is satisfied that [the applicant] has no reasonable prospect of successfully prosecuting the proceeding …") is the same as the relevant test embodied in r 26.01(a) FCR ("… because the applicant has no reasonable prospect of successfully prosecuting the proceeding …"). The Institute also relied upon r 26.01(c) and r 26.01(d) FCR. 14 I am comfortably satisfied that the applicant well understood that the Institute was seeking to have her whole case summarily dismissed. She conceded as much at the hearing before me. I propose to proceed under both s 31A of the Federal Court Act and under r 26.01 FCR. 15 These Reasons for Judgment determine the Institute's claim for an order that the whole of the proceeding be summarily dismissed.