C2004/5244, Transcript of Proceedings [2004] AIRCTrans 4312 (8 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 14617
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER RAFFAELLI

C2004/5244

APPEAL UNDER SECTION 45 OF THE ACT
BY LESLIE SHANAHAN AGAINST THE
DECISION OF SENIOR DEPUTY PRESIDENT
CARTWRIGHT MADE AT SYDNEY ON 5 JULY,
2004 IN U2003/5661 RE TERMINATION OF
EMPLOYMENT

SYDNEY

10.21 AM, THURSDAY, 28 OCTOBER 2004

PN1

MR WALES SC: May it please the Commission, I appear with my learned friend, MR ROGERS, for the appellant.

PN2

MR MILLER: May it please the Commission, I appear for the respondent.

PN3

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, who is with you at the bar table?

PN4

MR MILLER: I'm sorry, Commissioner - my instructing solicitor, MR ROB MACAULAY, from the firm Pryor Tzannes Wallis.

PN5

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN6

MR WALES: Can I begin by saying this? As you would appreciate from the appeal papers, this is an appeal from the refusal by Senior Deputy President Cartwright to reinstate the appellant to his employment with the University of Western Sydney. The appellant is, on the evidence before the Deputy President, which was not challenged, a brilliant musician - one of the most brilliant in the country. He was awarded a Bachelors Degree with First Class Honours. He won the University Medal in his year for music. He, in recent years, completed his PhD thesis, which was described by Professor Boyd, who gave evidence on his behalf, as being amongst the most brilliant PhD's which she had ever supervised.

PN7

His interests are such that work in the University is, in practical terms, the only work open to him. The evidence below was that in the period since his dismissal by the University, he had earned a few thousand dollars one way or the other but the evidence of Professor Boyd, which appeared to be accepted by the Senior Deputy President, was that the consequences of termination would be, from the academic point of view, catastrophic for him. The matters which led to the termination of employment via a Committee of the University involved, by and large, allegations of improper physical contact with students.

PN8

I should hasten to point out that it was never suggested that these acts of physical contact were, in any way, incontrovertibly sexual. They involved him tickling students. They involved him picking up students. They involved at least one male student as well as female students. They were, without exception, done in the presence of other persons. They were characterised by - - -

PN9

SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry, I didn't hear that last sentence.

PN10

MR WALES: Yes. They were, without exception, done in the presence of other persons. None of these were acts committed in private without witnesses in informal situations. They took place in classrooms, that sort of place, in the presence of other persons. At least one male student was also endeavoured to be picked up. A significant number of students who were involved in or witnesses of these events characterised them as merely joking or horseplay. Can we, in a sense, come direct to what is the principal point before you? If the University established that Mr Shanahan was a sexual predator who, motivated sexually, improperly touched female students, then one would, without hesitation, say that such a person should not be employed in a university and his application was bound to fail.

PN11

On the other hand, if what occurred was no more than boisterous but ill-advised horseplay, then every criterion of fairness would suggest that such conduct ought to at least be the subject of a warning and counselling before termination. The first case, that is to say the sexual predator case, was never one investigated by the Committee of the University, and was not the case presented to the Senior Deputy President. You will appreciate that when it comes to questions of physical contact, motivation is crucial to the analysis of what happened.

PN12

If a man on a bus, for example, touches a female passenger on the arm, she may take offence. He may touch her on the arm for improper reasons. He may touch her on the arm because she has dropped her purse and he wants to draw her attention to it, but the question of offence in the mind of the recipient, the question of whether the touching is unwelcome is only a part of the equation. In a work context, to determine whether conduct merits dismissal without the opportunity for revision of conduct, the question of motivation is fundamental.

PN13

His Honour, the Senior Deputy President, in his reasons for judgment, described the investigation process carried out by the University as competent. He said so at paragraph 32 of his reasons where he said that the respondent sought to follow the process set out in the agreement - that is, the enterprise agreement. He went on to say it did so competently but nothing, we contend, could be further from the truth. For reasons which I will demonstrate to you, there was a fundamental and crucial difference between what the Committee thought it was doing and what the Vice Chancellor, who made the decision, herself thought it was doing.

PN14

The Vice Chancellor thought that the Committee had made a full investigation and had formed the view that the conduct of the appellant was sexually motivated. She relied on the findings of the Committee. The Committee Chairman gave evidence that was no part of their consideration, and when taken to a portion of the Committee's findings, which the Vice Chancellor conceded that she relied upon in dismissing the appellant, agreed that it was a matter which was not a finding of fact, not even before the Committee, in a proper sense and as to which it would be, on his part, a matter of regret if it was interpreted as a finding of fact.

PN15

So that based upon a complete misunderstanding of what the Committee had done and what it was saying in its report, the Vice Chancellor dismissed the appellant without talking to him, without talking to his colleagues, without asking for his personnel file, knowing nothing about him apart from what appeared in the Committee's report as to which there was, as I say, a fundamental misunderstanding on her part, and in circumstances where she both knew nothing of him and did not know him. She knew nothing of his field of work, and she agreed if she had bumped into him the same day as she had dismissed him, she wouldn't know who he was.

PN16

Now, in those circumstances, the finding that the University's process was competent is simply wrong. When the matter came before the Senior Deputy President, the fundamental issue is whether the dismissal was harsh and unjust and ought to be set aside. For reasons which I will come to and which are dealt with, at least in part, in our written outline of argument, the learned Senior Deputy President made a number of significant errors which, we say, vitiate his judgment on fundamental House v R propositions. If we make out that contention which, we say, is manifest, then the matter is before you as a rehearing on conventional grounds where you form your own view but pay appropriate deference to the findings of fact based on demeanour and the like by the Senior Deputy President.

PN17

That, in a nutshell, is what the case is about and what we contend is that far from the applicant receiving the fair go which the legislation enjoins, what happened to him was profoundly unfair and ought to be rectified. Now, can I begin by saying this? The only authority to which, subject to whatever questions the members of the Full Bench have, the only authority I want to take you to is House v R itself which, of course, sets out the principles which guide your approach to this. I don't doubt that handing up copies of that judgment - if I may hand up three copies - - -

PN18

SENIOR DEPUTY PRESIDENT DRAKE: I think, Mr Wales, you could accept that everybody sitting on the Bench has read that decision.

PN19

MR WALES: Yes. I have no doubt, your Honour, that I'm endeavouring to teach you what you already know. The only point that I want to make from House v R is that it should not be thought that House v R sets up some kind of insuperable or even difficult barrier to get across. It should not be thought that House v R means, in effect, that the proper approach is to say: well, it is a matter of discretion, a matter for the Tribunal below, a matter for him and we, to put this loosely, wash our hands of it. That is not so. The proposition which appears in House v R is the proposition which appears at 505 and this has been read to you many times no doubt, but if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his - if it has the materials for doing so.

PN20

It may not appear how the primary judge has reached the result embodied in his order but if, upon the facts, it is unreasonable and plainly unjust, the appellate court may infer that in some way, there has been a failure to properly exercise the discretion which the law proposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is viewed on the ground that a substantial wrong has, in fact, occurred. Now, can I go back then to take you to the relevant portions of the evidence. Can I begin by taking you to the character referees which Professor Boyd and Professor Evans, whose witness statements were exhibits A2 and A3.

PN21

They are at pages 3 and following of the appellant's bundle of documents. Can I take you to page 17 of the appellant's bundle. Professor Boyd says this, at page 17. She was Professor of Music at Sydney University, and had been since 1990. She set out her qualifications and experience. At page 18, paragraph 4, she said this - that she had been acquainted with his work for about 20 years:

PN22

He is amongst the most brilliant musicians with whom I've ever been associated. Indeed, I regard his intelligence to be so high as to be almost immeasurable. His PhD submission is undoubtedly of the highest quality I have ever supervised. His teacher...

PN23

Etcetera:

PN24

...has been outstanding. His character is remarkable, is honest almost to a fault, and is gifted with a sense of playfulness and humour that sometimes borders on boisterousness, and is frequently buoyant. He is extremely generous and a kindly fellow. He is a person to whom the term "rough diamond" might have been coined. Socially, his behaviour could often be described as rough-mannered, and he could be regarded as a typical Australian larrikin. However -

PN25

she says -

PN26

I've known him to give personal offence only to those with whom he has had the most casual acquaintance.

PN27

Now, may I respectfully commend to the members of the Full Court, a reading of all of this report, this witness statement. It is praise of a kind for a person rarely found, one would think, in testimonials and character referees. In paragraph 5, she says that the conduct of Mr Shanahan seems to be incongruent and completely inconsistent with "everything I've know of him as an academic across many years." She refers to his teaching as being "inspiring." She says:

PN28

I've never known him to behave inappropriately physically in any way.

PN29

She goes on to say, in paragraph 6 at page 20:

PN30

The professional consequences for Ian's reputation should this dismissal be upheld are extremely damaging. It is unlikely he would ever be regarded as employable by another university. Ian is a consummate academic and a brilliant composer whose work depends upon university support. I cannot see him being suited to work in any other industry. I believe it would be virtually impossible for him to earn a living and this would have devastating personal consequences.

PN31

Now, Professor Evans, at page 21 and following, gives a report of the appellant which is in very similar terms. She describes her knowledge of him. She describes the work which he has done. She says, at paragraph 6, that his work has inspired a decade or more of our most brilliant students. At paragraph 10, she says:

PN32

He is considered by me, my colleagues, to be an academic and creative genius unhampered by or despite his rather eccentric rough appearance and behaviour. I consider these to be endearing quirks of character.

PN33

Now, she says, at 18:

PN34

I know for a certainty he is not a man who would ever touch his female students in anything other than a playful manner.

PN35

So not in any way as to suggest sexual aggression:

PN36

In all the time he was a student...

PN37

Etcetera:

PN38

...academic staff member, there's not been a single complaint about him behaving in the ways alleged in the current case.

PN39

At 24, she says:

PN40

In academic life, reputation is everything.

PN41

She says:

PN42

This dismissal, whether fair or otherwise, will sully his reputation in a quite terrible way, possibly irreparably.

PN43

Now, what did the Senior Deputy President say about those analyses? At paragraph 9 of this reasons for judgment, this is how they are treated and we say, with respect, dismissed:

PN44

Character references were provided by Professor Boyd and Evans in the context of information supplied by Mr Shanahan and his solicitor. On this basis neither had a full appreciation of the complaints against Shanahan, consequently, while I accept the general character evidence their evidence was not persuasive on the particular conduct issues to be determined by the Commission.

PN45

We say what does that mean? Clearly, these persons weren't put forward as witnesses to the events which occurred, they were put forward as witnesses who could describe the character of the antecedence of the professional ability of and the attributes of the appellant. It was not suggested that their evidence went to the particular conduct issues, whatever that means, insofar as to be determined whether they occurred or not.

PN46

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, as I understood the paragraph occurred to me when I read it that it meant that somehow or other that those two witnesses were not fully appraised of the details and allegations against Mr Shanahan and that that somehow affected the reliability of the character evidence.

PN47

MR WALES: Quite.

PN48

SENIOR DEPUTY PRESIDENT DRAKE: Is that - - -

PN49

MR WALES: That is with respect how one would understand that passage and it is simply wrong. Can I take you to the respondent's exhibit - - -

PN50

SENIOR DEPUTY PRESIDENT DRAKE: So that - sorry, Mr Wales - flowing from that, in fact, was the case that somehow the evidence as to his character in relation to this kind of conduct could be discounted to some extent by their lack of information.

PN51

MR WALES: Quite.

PN52

SENIOR DEPUTY PRESIDENT DRAKE: So where are we going?

PN53

MR WALES: That is precisely where we are going and let me take you to, I think it is page 398 in the respondent's exhibits. Let me start there - sorry, page 398 in the respondent's exhibits, Mr Maguire, who is the solicitor for the appellant, faxes to Professor Boyd letter as discussed and enclosures. At 399 he sends to her particulars of the allegations, namely, A, B, C, D, E, F, G, H, I, J and K. The witness statement in reply and a pro forma.

PN54

There is then attached at page 402 and following copies of the relevant portions of all of the Investigation Committee's - sorry, I put that badly - there is then set out the allegations against Mr Shanahan as put before the Investigation Committee and all the particulars of them which are precisely the same as the allegations before the appellant before the Senior Deputy President, so that chapter and verse the complaints are set out, the particulars are set out and, indeed, except for one unimportant exception the findings of the Senior Deputy President mirrored the findings of the Investigation Committee.

PN55

So that for practical purposes there was set out at substantial length from pages 402 through to 407 all of the allegations made against Mr Shanahan. There was then set out his response at 408 and at 414 you will see that a similar fax was sent to Professor Evans. You will see that at page 415 it is a fax addressed to Professor Winston Evans. He encloses a copy of a character reference which she gave for him in earlier Court proceedings which I will refer later, a copy of a statement of agreed facts, a copy of the particulars - the statement of agreed facts is at 418 and 419 and so on.

PN56

Now, on what basis can it be said therefore that neither had a full appreciation of the complaints against him, indeed, their own references suggest that they had been told about the complaints, regarded them as being out of character, so that the statement that they didn't have a full appreciation, is simply wrong. Not in a sense that much turns upon that because their statements stand for what they say.

PN57

There was no suggestion to them, either Professor Boyd or Professor Evans, that they had misunderstood his character, or that his observations of his professional skills were erroneous. Not a single colleague of the appellant was called by the University to rebut the suggestions of Professors Boyd and Evans. Not a single work mate or professional colleague came along to say: look, those views simply aren't correct and Professor Evans and Professor Boyd have got it wrong for these reasons.

PN58

Professor Boyd, it was conceded even before she came along that there was no attack on her credit - that came about because the Senior Deputy President properly pointed out that he had had some acquaintance with Professor Boyd at some stage, was her credit in issue? Answer, no, it was not. That is to say her reliability as a witness was not being impugned in these proceedings. In any event, the accuracy of her assertions was not a matter of proper challenge and it was not challenged by any witness from the University, so that it is proper to treat as entirely accurate what they said and, indeed, the Deputy President himself said:

PN59

I accept the general character evidence.

PN60

Which seems to suggest that he treated as accurate their observations about him and his character. Our only complaint is that he seemed to then go on to say that their evidence wasn't persuasive on the particular conduct issues, when it is not clear what he meant by the conduct issues to which their evidence was supposed to go.

PN61

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, so that both parties can hear that my conclusion I formed about that when I read it was that the natural meaning of that was that they didn't have the detail of the offences alleged - of the conduct alleged.

PN62

MR WALES: Well, in a sense that may be so but perhaps all I need to draw from that evidence for present purposes is that to the extent that it casts light upon the character it was accepted by the Senior Deputy President and, insofar as it expressed views upon his professional competence and, particularly, his employability outside the University context, it was not challenged, either being in any effective way to these witnesses and not challenged by any evidence from the University. They are, after all, the people who might be expected to come along and say: well, no, that is not correct. Here are some witnesses who can explain why, they didn't do so.

PN63

So that you are entitled, in my submission, to take the evidence of Professors Boyd and Evans as given. So that that for starters lifts this case in one sense out of the conventional reinstatement application. Obviously, no one wants to lose their job and, no doubt, the great bulk of employees who come to this Tribunal seeking reinstatement point to adverse consequences for them, arising from their dismissal. Nor, am I suggesting for a moment that Mr Shanahan, because he is an academic musician, is entitled to more time or more solicitude, or more concern from this Commission than would be a process worker or a manual worker.

PN64

What I'm saying is the facts of this case in relation to the worker's attributes make it quite different from the usual case, because on the evidence before this Commission Mr Shanahan is in effect now unemployable, and this at the age of 42. The evidence was that he was born in June of 1962, that makes him now 42 years of age with, in the ordinary course, 23-odd working years ahead of him. He faces an outcome which is catastrophic as a consequence of his dismissal by the University.

PN65

The other matter which I should draw your attention before I explain the evidence of the complainants is this, that there was also put before the Senior Deputy President, that which was not before the University when he was dismissed which, namely, a report of a psychiatrist which was exhibit A4 and appears at page 9 and following of the appellant's bundle of exhibits.

PN66

Dr Teoh is a consultant psychiatrist. He examined Mr Shanahan on 11 May 2004, clearly at the request of the solicitors for the appellant. He had seen Mr Shanahan before. He had earlier in the year 2000 diagnosed Mr Shanahan bipolar disorder, that was treated by medication and contact between Mr Shanahan and Dr Teoh ceased. Mr Shanahan having - this is at page 10:

PN67

Having stopped seeing the doctor in early 2002.

PN68

And it was in the latter part of 2002 that the events, with one minor exception, that the events described of occurred. He came back to see Dr Teoh in early 2003. He re-established contact because his mood became unstable and he was disinhibited for the most part of 2002. His history indicated that in 2002 his mood was - - -

PN69

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, I forgot to look it up, what does "disinhibited" mean?

PN70

MR WALES: Losing inhibitions, or similar to that.

PN71

SENIOR DEPUTY PRESIDENT DRAKE: I made a note to look it up.

PN72

MR WALES: Yes. It means, in effect - - -

PN73

SENIOR DEPUTY PRESIDENT DRAKE: Uninhibited?

PN74

MR WALES: Yes. Well, often in pharmacological text, disinhibition is used, for example, the effect of alcohol, the disinhibiting, it makes you do things you wouldn't ordinarily do, so that when you have had too much to drink you behave in a way which is out of character for you when you are sober, you approach people, you say things, you act in a way which normally your common sense would tell you not to do.

PN75

SENIOR DEPUTY PRESIDENT DRAKE: Or your inhibitions.

PN76

MR WALES: That is right. Your inhibitions, I guess, are no more than your internal mind saying, don't do these things.

PN77

SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Yes, I understand. I made a note to look it up and I didn't so.

PN78

SENIOR DEPUTY PRESIDENT HAMBERGER: I looked it up and it wasn't in the dictionary.

PN79

MR WALES: I think - - -

PN80

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, it makes sense, does not it?

PN81

MR WALES: Yes. Now, page 11:

PN82

He lives with his mother and a cat. He has been awkward in relationships and has never established an intimate relationship. Overweight, but otherwise in good health.

PN83

Page 12 at about point 7:

PN84

In addition to depression he has had mood swings characterised by irritability, rapid speech, disinhibited behaviour, elevation of mood. These symptoms are consistent with hypomania, which is part of his bipolar mood disorder.

PN85

Now, the doctor goes on to say:

PN86

His behaviour towards the second part of 2002 indicated that his mood was clearly unstable. He had shown disinhibited behaviour and irritability.

PN87

The final page:

PN88

He stated he couldn't recall several of the allegations. It is likely that he would have difficulty recalling specific events during his period of hypomania.

PN89

That is one part of the manic depressive bipolar disorder:

PN90

Some of the allegations like lifting up students without their permission, verbal aggression and irritability are consistent with his mood disorder. These symptoms are consistent with the hypomanic phase of the bipolar mood disorder. His condition can be stabilised, he has partial insight. He has not persisted with his treatment.

PN91

Etcetera:

PN92

He has a good prognosis, provided that he adhere to a closely supervised treatment program for his bipolar mood disorder.

PN93

Now, that and other evidence to which I will take you in due course, clearly indicates that there was a psychiatric component to the appellant's conduct. It had an explanation in psychiatric terms. His conduct was, the doctor says, entirely consistent with the disinhibiting effects of his bipolar disorder. Dr Teoh was not required for cross-examination by the respondent in these proceedings, so that not only is the Commission entitled to treat this evidence as accepted and the proper inferences that flow from it. It would be, with respect, wrong not to do so.

PN94

If it was part of the respondent's case that Dr Teoh was in any respect wrong it was their obligation to have him called by us and have it put to him for comment. If I should add it was part of the respondent's case that Dr Teoh was wrong and there was in fact a sexual motivation for the conduct of the appellant, they were bound to put it to him. If the appellant was in truth a serious risk to students, that was a matter which they were bound to put to Dr Teoh, they didn't.

PN95

They must, on fundamental principles, start from the proposition that what Dr Teoh says is correct. That indeed we say points to another error which the learned Senior Deputy President made. The Senior Deputy President rejected the evidence - let me find the passage - rejected the evidence of the appellant that he could not recall much of the conduct of which he stood accused. Anyway, I will ask Virginia to find that passage, I thought I had it flagged.

PN96

The learned Senior Deputy President indicated that he couldn't accept the evidence of the appellant, that he simply couldn't recall these events of lifting or tickling. Not only was that finding inconsistent with the report of Dr Teoh - - -

PN97

SENIOR DEPUTY PRESIDENT DRAKE: It is paragraph 23.

PN98

MR WALES: Thank you.

PN99

SENIOR DEPUTY PRESIDENT DRAKE: It is all right, Mr Maguire, I found it.

PN100

MR WALES: Thank you, your Honour. He says at 23:

PN101

Having seen the applicant's evidence I am not convinced by his ..... to recollect.

PN102

Well, my learned friend in his cross-examination did not suggest for a moment that Mr Shanahan was feigning lack of recollection. In fact, the questions put by my friend to the appellant were in effect along these lines: since you can't recall, you can't deny the account which these complainants give, and it was accepted by the appellants that that memory be - there was no attack on the inability of the appellant to recall.

PN103

There was not one suggestion that he was feigning lack of recollection and we say that it's quite unfortunate that it's the Deputy President made what is in effect a finding of a matter never put to the appellant. Never put to Dr Teoh, although inconsistent with Dr Teoh's report and which without saying so involves the suggestion that the evidence of the appellant before this Commission is false. Because to say: I'm not convinced of his lack of recollection is the same as saying: I reject his evidence as being untrue. That's a serious finding which may well militate against the Commission's willingness to reinstate the applicant on a matter never put to the applicant in cross-examination.

PN104

SENIOR DEPUTY PRESIDENT DRAKE: You don't think it's possible that he was saying that the applicant doesn't remember it but that the students do and that he accepts that it took place, that he isn't convinced by the lack of recollection that it didn't occur?

PN105

MR WALES: Well, that - no, because that involves one step in the equation which isn't required. In order to accept the evidence of the students, all you need to do is say: well, Mr Shanahan can't deny it occurred because he can't recall it. The students say these events occurred. They were apparently plausible witnesses and I accept what they say, particularly in the absence of any denial or alternative account put by Mr Shanahan. That would be a logical argument. To introduce the element and I'm not convinced that he can't recall it, adds nothing to the equation and it contains within it a serious, yet not entirely spoken criticism of the appellant which rebounds to his disadvantage.

PN106

COMMISSIONER RAFFAELLI: What the - the word used is "by his inability" not "of his inability" isn't that significant? Having seen the applicant's evidence, I'm not convinced by his inability. Isn't he - isn't the - Senior Deputy President, accepting that he does have an inability to recollect?

PN107

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN108

COMMISSIONER RAFFAELLI: Doesn't he use the word "of"?

PN109

MR WALES: On reflection, I think that's probably correct. I think, I think I perhaps read that paragraph, or that sentence unfairly. But in making that concession, I suppose what - I think with respect, that is correct and I think perhaps I should withdraw the suggestion that the Deputy President was wrong but simply point out that he appears to accept the evidence of lack of recollection which is consistent with - - -

PN110

SENIOR DEPUTY PRESIDENT DRAKE: That's another point though. Really, you're saying that he accepts the lack of recollection and that flows from Dr Teoh's report?

PN111

MR WALES: That's right, that's right. So perhaps I can put that alleged error to one side and withdraw what I said about that. But that's - so that's - but in any event, the background to these events is the report of Dr Teoh. Now, while I didn't intend to come to it at this point, it is probably appropriate that I remind you at this stage of one other matter which is of serious importance. His Honour, said this at paragraph 12 and the reference is difficult because paragraph 12 has a long series of bullet points. But if you go to the ninth bullet point you will see it starts:

PN112

The applicant was involved in a fracas at Palm Beach on 22 September 2002.

PN113

He was charged with eight offences. He pleaded guilty and in accordance with section 10 of the relevant Act, received a good behaviour bond and the result was upheld on appeal. I'm not considering this incident relevant in the matter to be decided and I pay no regard to it. Now, far from it being a matter which is irrelevant, it's a matter which throws substantial light on the appellant's state of mind at the very same time, as the events complained of are occurring. The evidence in regard to this matter appeared, it's in the respondents bundle at page 13 and following. There was - - -

PN114

SENIOR DEPUTY PRESIDENT DRAKE: Page 13, did you say?

PN115

MR WALES: Yes, page 13 of the respondents bundle and following. Now, what appears from that, is that - page 13, in September 2002, he was charged in the local court with maliciously to destroy, damage property, common assault, etcetera. Offensive implement - this is page 14 which was a slingshot or a catapult, a common assault, etcetera. The matter was dealt with by a Magistrate, the police statement of facts appears at page 16 and following. And according to the police account, there was an argument that arose when the appellant asked some people to turn down some loud music in their - coming from their cars. There was an argument, there was some bad language, there was a table they'd removed from the boot of the appellant's car. There was some more bad language and so on.

PN116

Now, there was cross-examination of the appellant. I won't take you to it but it appears at page 163 and following. To the effect that since he pleaded guilty, he must accept the truth of what appears in the police statement of the facts. The response which the appellant gave as we all know. He went there to Court without a lawyer, he understood that he had done enough wrong to justify a plea of guilty. He didn't accept all of the police account and that you would need to go to the transcript of that, to get the full story of what he said. That was the substance of his answers in cross-examination. But there is no doubt that there was a plea of guilty to some unhappy events in September 2002 at a local court.

PN117

In which the Magistrate under section 10 of the Act thought sufficiently trivial, or sufficiently explained, so as not to proceed to a conviction. That's the effect of section 10. You can find the offence established but not proceed to a conviction.

PN118

SENIOR DEPUTY PRESIDENT DRAKE: Yes. The conviction is not recorded.

PN119

MR WALES: That's right. And that view was upheld when the prosecution appealed in the District Court. Now, we say not entirely to the credit of the respondent. These matters were put forward in part at least, as matters which in themselves somehow justified the dismissal of the appellant. Nothing could be further from the truth. They were unrelated to his employment, they were thought sufficiently unimportant by the Magistrate not to proceed to a conviction. But most importantly, they were utterly out of character for the appellant. It was never suggested in his whole life - this is a man now, 42 years of age, he'd never been in trouble of this kind with the police before or ever in trouble of this kind afterwards. So that after - in 40 years of an apparently blameless life, he is charged with and pleads guilty to offences of this kind, utterly out of character.

PN120

Now, we say: wouldn't one interpret all of that as incontrovertible evidence that at the very time that the appellant committed the Acts at University, which the University complains of, he was behaving strangely out of character and consistently with Dr Teoh's report in the throws of one phase of his bipolar disorder. Disinhibited, exactly correct and it does not, so far from it being a matter to which one ought pay no regard, to use the words and maybe all that was being said was simply: I don't treat it as a matter adverse to the appellant. But it is more than just a neutral matter. It is a matter which, properly understood, is enormously helpful to him, because it - - -

PN121

SENIOR DEPUTY PRESIDENT DRAKE: Was that put at first instance, Mr Wales?

PN122

MR WALES: Yes, it was.

PN123

SENIOR DEPUTY PRESIDENT DRAKE: I don't recall it, I'm sorry. Could you tell me where?

PN124

MR WALES: Yes, let me go - our submissions are recorded - go to page 64 of the appellant's bundle. Page 64 of the appellant's bundle, in the paragraph at point 6 mentions: it should also be noted. The very same submission has been put to you appears in writing in our outline of argument.

PN125

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN126

MR WALES: So that against that background it is important then to understand what it was that occurred and precisely what it was that the various students complained of. I will take you to the evidence in that regard. The first matter is the matter of Ms Spillane. Now, can I begin by saying this: one of the curious speeches of the university's codes of conduct is that there is utterly no prohibition on full-blown sexual affairs between staff and students. No doubt the rationale for that is we are dealing with people who are adults.

PN127

Clearly, the context of say, a high school, there would be no excuse whatever for a relationship between a teacher and a student. At university there is no such restriction and in a passage to which I will give you the reference, Professor Reid, the Vice Chancellor, agreed that there was no such restriction. It was a matter purely of consent. There were other requirements which would come into play, so that, for example, one wouldn't have an affair with a student whose papers one was marking, for example.

PN128

Bit like one wouldn't mark one's sister's papers or bank manager's for the same reason - a conflict of interest and duty. There was no prohibition on a student having - this is not our case by the way, but there is not a prohibition on a student and a staff member having a full-blown sexual relationship. In Ms Spillane's case what happened was this. A friendship developed. He was not her teacher. He had taught her once but ceased to be her teacher. A friendship developed. She indeed said she approached him and asked him to teach her to play chess, for example.

PN129

They had common interests in terms of religious faith and other matters. Books were exchanged. He invited her out to Palm Beach one day. In the course of that outing he told her that he was attracted to her. She didn't respond to that advance. She didn't, to use the vernacular, fancy him at all and she embarrassed by that statement. She didn't reject his advances in a blunt or forthright way. No doubt one would think, not wishing to cause embarrassment to herself. When the time came to go home - sorry, she said she wanted to go home. He suggested having dinner. She agreed. They went to his house. He invited her for coffee, she said "no". She didn't go in, she went home.

PN130

Now, about that there was no complaint whatever. That wasn't part of the contention that there had been any improper contact and indeed, in a situation where the university does not prohibit sexual affairs between staff and students it would be a bit curious if there had been a complaint for the staff member asked the student out. So that was all unexceptional, unremarkable, not suggested to be a breach of the university's codes at all but thereafter there were a number of phone calls, not in any sense, improper in their content. On a number of occasions Mr Shanahan telephone his student.

PN131

By and large she didn't answer his calls. That is why there was a number, a lot of them simply unanswered calls. Once the mother answered the phone and said: this is becoming a bit heavy. Stop calling my daughter. There were a few more phone calls unanswered and they stopped. Now, it was the phone calls themselves that were the subject of the complaint and the complaint is: unwelcome conduct but it wasn't suggested that there had been any impropriety warranting censure in all the events that led up these phone calls. It wasn't suggested that the phone calls themselves were offensive in their content. They were utterly unremarkable in their content.

PN132

One, for example, simply was an invitation to go to a music concert at the Opera House, nothing untoward. That was the complaint which was found as damaged and this is where the whole task undertaken by the investigation committee, began to unravel because the - I will take you to the references which explains this argument, but all that the investigation committee determined was whether this conduct and other conduct was unwelcome. That is to say, unwelcome in the eyes of or the minds of the recipient. It didn't consider for a moment, for example, whether it breached any of the university's codes. It didn't consider whether there was any sexual motivation in the conduct of the appellant. It simply - it wasn't - - -

PN133

SENIOR DEPUTY PRESIDENT DRAKE: Even it had, would that matter?

PN134

MR WALES: It would be fundamental. It would be utterly fundamental, because - - -

PN135

SENIOR DEPUTY PRESIDENT DRAKE: No. No, I'm sorry, I think you answered the wrong question. Would it matter if they considered whether it was sexually motivated to call, given what you said about the position in relation to sexual relationship.

PN136

MR WALES: Quite - that - I'm starting Ms Spillane because it is, in effect, the first one in the committee's report.

PN137

SENIOR DEPUTY PRESIDENT DRAKE: All right, sorry.

PN138

MR WALES: And Spillane stands on its own. It is the only example of this kind of conduct complained of. As your Honour correctly points out, it would hardly - given what I have described, it would hardly matter if it were found that what was going on in the mind of Mr Shanahan was an attempt to further this relationship. He was telephoning her. Then he said: I'm attracted by you. She had not said "no", but not said "yes", but not said "no". She had sought by being in effect, cold and uncommunicative, to convey her lack of desire to proceed any further. That was her thinking.

PN139

He made a number of phone calls which by and large were not answered, and that is the substance of the complaint. Now, that couldn't amount to anything and indeed the Vice Chancellor herself accepted that as things go this was - I will paraphrase her evidence, I will take you to what she said - but she said, "If this were the only thing complained of in effect we wouldn't be having this argument. It's low in the scheme of things."

PN140

The real complaints against the appellant were the ones of touching students. We will have to deal with all of these matters because they are all accepted by the university and accepted by the Senior Deputy President below. So you need to understand, with respect, what the findings were against the applicant, the appellant. So that the evidence of Ms Spillane for practical purposes appears in the respondent's bundle at page 371 and following.

PN141

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, when you have finished with Ms Spillane we will take a short break.

PN142

MR WALES: Yes; and she says at 371, at paragraph 3:

PN143

Other than an improvisation class in my first year at university I was otherwise not enrolled in any classes taught by the applicant ...(reads)... I told him I'd broken up with my boyfriend.

PN144

In her evidence at page 306 of the bundle which contains the transcript she agrees that in the year 2002 - this is paragraph 3462 - she approached him and asked him to teach her how to play chess, and she agrees at that point he wasn't her teacher in any classes at the university. Paragraph 8 - she describes how they go to Palm Beach through his car, they bought some alcohol, they sat by the beach, he gave her a drink: "He said, `I care about you. I want you to be happy.' He kissed me on the forehead. I was shocked. He said, `I consider you more than a friend. I'm in love with you. I've been in love with you for a long time.'" Her response - "`unflattered that you feel that way about me but I can't respond right now. I've got to get home.' `Come and see a movie.' `No.' `Let's get something to eat.' We went to his car, went to a restaurant. He attempted to hold my hand. I pulled it away. After dinner left the restaurant", etcetera: "Refused coffee. Got in a car and went home."

PN145

All of that is not the subject of any complaint at all by the university. Paragraph 18: "He rang up on 8 October. `How's your thesis going?' I answered, `Fine, thanks.' I did nothing whatsoever to encourage the expressed interest. I tried by being curt and distant to communicate my disinterest. He rang again. `Did you read the book I gave you?' Answer: `No, I don't need any help, thank you. Only supervisor should help me anyway.' He kept calling me on various numbers. I told him I'd appreciate if he'd stop calling me. He left messages on my answering machine."

PN146

Paragraph 34: "Invitation to the jazz concert at the Opera House." 32: "15 November 2002, my mother said, `Calls are becoming intense. Please stop calling my daughter.' He called my telephone three more times on one day, the 19th. I received no more phone calls", and her evidence was those calls weren't answered calls; they were unanswered calls on that day. That is it: that is the allegation, and the Senior Deputy President accepted, as he was entitled to do, that evidence. But as evidence what does it amount to? What code of conduct does it breach? How does it amount to any kind of harassment which justifies termination without counselling?

PN147

And indeed the evidence, if you go to the cross-examination of the Vice Chancellor herself - let me give you the reference. If you go to the transcript at page 126 you will see there that at 126, for example - 126, you will see at paragraph 1565 that she agrees that an affair is not prohibited by the university's sexual harassment policy. She agrees with that. 1566:

PN148

The university looks at ..... question of consent?---That's right, and at the other obligations such as not marking the student's paper...

PN149

Etcetera. And then she is asked at 127 about Spillane. The facts are put to her and she, at page 132 at paragraph 1634 through to 1637, agrees that it is certainly not the most serious kind of sexual harassment and that without more this conduct certainly would not have been, or would most unlikely have been, an occasion for termination particularly if one took the view that a warning would solve the problem - paragraph 1638 and 1639.

PN150

So that one can really put to one side the matter of Spillane as being a matter which on any view is comparatively inconsequential in the scheme of things. So that one - and I will stop now for the time being if that is convenient - one really has to go to the other matters of complaint to find the real matters which form the basis of the university's findings and the Deputy President's findings.

SHORT ADJOURNMENT [11.30am]

RESUMED [11.55am]

PN151

MR WALES: Probably the easiest way to deal with the evidence before the university and before the Deputy President is to take you to the reasons for judgment. If you go to paragraph 6 of his reasons, you will see that he says in paragraph 6: central to the Commission receiving the word: allegations of lifting and tickling, as they became to be known. "To grant us" occupied most of the time. "She was diffident." She was - his Honour couldn't agree that she was over-sensitive. I will come back to that point.

PN152

He dealt with Kett and Jifkins and so on, and then in paragraph 12 at bullet point number 6 - they are not numbered, but it is the sixth bullet point, refers to the evidence of Tsougranis Jifkins and Kett: he lifted them against their will onto his shoulder and tickled them, or in the case of Ms Kett, attempted to tickle her during classes or in concert practice.

PN153

I find each of these incidents did occur as described by the students, and he refers to the evidence of Ms Jifkins. This is the next bullet point, early September 2002. He flurried her to class, smacking her on the bottom with a folder, attempted to pinch her: If things don't work out between you and your fiance you know where to come, etcetera. On the evidence before me I agree at least with the finding of the committee. Balance of probabilities, the applicant at least touched her on the bottom with his folder and made comments along the lines that she claimed.

PN154

The next point is a matter that was not pursued. Then there's a reference to the Palm Beach event and then the next bullet point is the Spillane matter, where I should point out that about two-thirds of the way down that paragraph, does your Honour see: having recorded that the applicant stopped calling, goes on to say: by that time he would have been aware that other students had lodged written complaints against him. It is - - -

PN155

SENIOR DEPUTY PRESIDENT DRAKE: Yes.

PN156

MR WALES: That was a finding of fact not open to his Honour. The evidence showed that on 13 and 14 of November, letters had been sent by the university. There was no evidence of when they were received. It was not put to Mr Shanahan that he had got those letters before he stopped telephoning Ms Spillane, but particularly what was not put to the appellant was the proposition which is inherent in the Senior Deputy President's finding but yet not properly spoken, is that - I'm sorry, I will go back one step. Mr Shanahan stopping telephoning Ms Spillane was either on the date when he stopped, was either coincidence or he stopped because he got letters from the university when he would have gone on otherwise.

PN157

If it is merely co-incidence then it is irrelevant. What is really implicit in the finding is that he stopped because he got the letter from the university. That was never put to Mr Shanahan and that finding or the implication of the findings are, we say, impermissible. Then, in the next bullet point he refers to Tsougranis where she complained about lifting and tickling, complained about being singled out for her Greek ethnicity and then there was an episode where, on the findings made below: he touched her arm several times during her piano playing in a way not required to correct her mistakes.

PN158

That I will submit to you later is a curious outcome since although she prevaricated on this point, Ms Tsougranis' original affidavit of complaint said in terms that: Mr Shanahan touched her to correct her. You see, her evidence was that these touchings were in the nature of: a light touch to the upper arm that occurred about four times in the course of an episode of piano practice. It occurred only when she had made mistakes. His Honour then, at the next bullet point, deals with a matter of Stacker and his Honour records that the complaint was made out before the committee.

PN159

In fact, the evidence showed that Ms Stacker had thought that her complaint was not being pursued and she was horrified in fact that her complaint was part of the material that ultimately used to form a basis of the examination of the appellant's employment and then he goes on to record: complaints made by Kett, Bush and Spillane, etcetera, and then, over at paragraph 20, he says: I considered evidence on the substance of the complaints by five of the eight complainants. My findings don't differ markedly in those instances and I found that. He sets out his findings and as to Tsougranis, paragraph 21, he says: contrary to the committee's findings, I have found that the touching incident did occur and that she regarded the applicant's touching her several times as: unwelcome conduct.

PN160

Then he deals with paragraph 22: a matter of Herbert but concludes by saying at the foot of 22: I find the applicant did ask personal questions of Ms Herbert, complimented her and asked her out but attached little significance to this finding in my consideration. So that in a nutshell represents the findings of the Senior Deputy President.

PN161

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, just so that - going back here. No, I think I've answered my own question. I'm sorry to interrupt you.

PN162

MR WALES: Go back then and deal with the evidence before the university and ultimately before the Senior Deputy President. So far as Herbert is concerned you will find that her statement in the respondent's bundle at page 387 and following. Now, I won't read it verbatim because, as you will see from the Senior Deputy President's reasons, he himself attached little importance to the Herbert matter and regarded it as: not of any particular significance. He simply found that she asked personal questions, complimented her and asked her out but does not make a finding that that is misconduct and in any event attaches little importance to it. What we noted about Herbert is this. At page 392, what Herbert, who was herself a complainant said, was this:

PN163

I'm making a formal statement to support the position of the other girls in a similar situation. I must state, though, that I feel Ian is essentially a good person who probably does not realise the implications of some of the actions that have occurred. I'm merely pointing out some issues there may be with boundaries, and am concerned for other people who could be involved in these situations. I do feel, though, that he is a generous person and it may just be a case of awareness of boundaries that are at issue.

PN164

That is the complainant's own say so. Now, Ms Tsougranis, made an affidavit which appears at page 179 and following. At 179, in paragraph 2, she says on Friday, late August/early September 2002:

PN165

Ensemble practice with Shanahan and Frances Bush and other female students. Shanahan: "I'll show you what I do to girls who don't behave." I stood up, he lifted me onto his shoulder, tickled me on my side, done without my permission. I then said, "Put me down. If you don't put me down I'll scream." I felt shocked and humiliated.

PN166

His Honour below found that to have occurred. Now, in relation to the question of her abnormal sensitivity, go now, if you would to the following paragraph 6. This is in a particular class:

PN167

Mr Shanahan said, "Angela is Greek. Where is she today? She'll probably get me for mispronouncing Greek words."

PN168

Paragraph 7, page 180:

PN169

When Mr Shanahan said this, I felt as though I was being singled out in the class because of my ethnicity and was humiliated.

PN170

So what is said at paragraph 6 was seriously put forward for investigation before the University Committee as an instance of racial or ethnic vilification. Now, the Committee below had no trouble dismissing that complaint. The Senior Deputy President does not deal with it in express terms, but you might think that that is an example of a particularly sensitive student taking offence where anyone of ordinary robustness could not possibly take offence. Then she says, at paragraph 10:

PN171

8 November 2002, in my last ensemble class with Mr Shanahan and Frances Bush, a fellow student, I barricaded myself with music stands around the piano. He moved the stands and sat next to me. When I made mistakes playing on the piano, Mr Shanahan touched my arm to correct me. This occurred about four times during the class. I became increasingly distressed.

PN172

In cross-examination, she was asked to describe this process of touching. At page 260 of the transcript bundle, from paragraph 2996 and following, what is said is this:

PN173

When you say "pinched", do you mean that he took a piece of flesh and pinched it or, rather, he put his fingers around?---A slight pinch, just a small touch.

PN174

So he touched you lightly?---Lightly, but I could still feel it.

PN175

With thumb and forefinger for a second or so on the upper arm. Is that correct?---Yes.

PN176

That had a connection with the error which you had made?---Yes.

PN177

Can you give me an example of the connection, if you can recall?---I can't recall.

PN178

In any event, was there such a connection?---Because I had made a mistake.

PN179

At 3008 this was put to her that:

PN180

In the description of the gesture to the Senior Deputy President, you described a very quick touch using your thumb and forefinger half way between your shoulder and your elbow on your upper arm?---Yes.

PN181

Right, and it was a matter of a fraction of a second?---Yes.

PN182

This occurred four times or thereabouts, a few times, when the student made mistakes playing the piano in circumstances where another person was present, the student Frances Bush; when there was evidence of Ms Bush but not of Ms Tsougranis who did not appear before the Investigation Committee, the Committee was entirely satisfied that the touching of the student's arm was perfectly proper and for the purpose of appropriate correction. Strangely, the University didn't call Ms Bush to give evidence before the Senior Deputy President, nor did it pursue the complaint which she had made independently.

PN183

So the situation is that, we say, this is really quite inappropriate conduct for the University. It declined to call before the Senior Deputy President the student whose evidence persuaded the Investigation Committee. The conduct was utterly unremarkable. In any event, we say, I suppose, that in criminal terms, you would say the finding was unsafe and unsound. How could you possibly find that a member of a music staff acted improperly in the presence of another student, touching the complainant lightly on the upper arm four times in the course of a music lesson, and only when that student made mistakes?

PN184

Now, to move from that into a finding of sexual misconduct is really, we say, simply and utterly inappropriate and wrong in all the circumstances. That is the matter of Tsougranis. The matter of Jifkins involves this, but the evidence of Ms Jifkins was, in her affidavit or statement at page 383, she says:

PN185

I was a student. These events occurred in the second semester of 2002. On 9 August 2002, Shanahan approached me and started tickling me on the ribs. While he was doing that, he said words to the following effect: This is what I'll do if you don't do your homework. I pulled away. He continued tickling me. He said, "Take off your glasses and stand up." I was cautious. I stood up. He quickly picked me up, threw me over his shoulders, and tickled me. I screamed and giggled. I was yelling to Shanahan words to the following effect: put me down, put me down now. Mr Hart, a University staff member, was there at the time.

PN186

Paragraphs 10 and 11:

PN187

About 5 to 10 seconds later, he put me down and said words to the following effect: I will tickle you like this if you don't do your homework.

PN188

Then there's a later occasion dealt with at paragraphs 12 through to 21 where while rushing to class, in effect, a folder that he was carrying smacker her on the buttocks and he said, "Get to class." Now, what did Mr Hart think about all of this? Mr Hart thought, if you go to the transcript on page 231 in paragraph 2629:

PN189

I appreciate that you are neither the person doing it or the recipient of the conduct from what you observed, and so far as your own assessment of what happened was concerned, you regarded the matter as being quite inappropriate but boisterous and foolish horseplay?---That's correct, I would have, yes.

PN190

So Mr Hart, who agreed that if he had seen, in the course of his work, some real sexual misconduct by a member of the University staff he would have reported it, didn't report it and, indeed, said that what he saw he regarded as being boisterous and foolish horseplay and nothing more than that. So far as Ms Kett is concerned, her statement appears at 393. I'm sorry, one other matter that I should point out, so far as Jifkins is concerned, is that there was a male student. I will ask my learned junior to find the reference to his evidence, but there was a male student, Mr Olivera, also present who was also the subject of some similar horseplay by the appellant - Mr O'Reilly, yes.

PN191

I will find the page reference for that in a moment, if I may. I think it is in my written outline of argument. So far as Ms Kett is concerned, her statement appears at 393. I'm sorry, I withdraw that. It is Kett where Mr O'Reilly is involved. She says, at page 393, paragraph 3:

PN192

After a concert, I performed some tasks requested by Mr Shanahan. Two other students, Oliver O'Reilly and Heather Lupton, were also in the room. After I completed the tasks, I went to leave but Shanahan stopped me and said, "I'll show you what will happen next time if you waste my time. Take off your backpack", etcetera. He lifted me up, holding the inside of my left thigh, swung me around several times over his head. I was shocked and angry. I said to him words to the following effect: fucking put me down, you bastard. He then attempted to tickle me under the armpit, but he missed and touched my left breast instead. He then lowered me back to the ground.

PN193

Now, that was her complaint. As I say, Mr O'Reilly was there at the same time and he himself was, on that occasion, the subject of a similar kind of conduct. There was also, as I say, a complaint which Ms Stacker thought that she had withdrawn that was found against the appellant by the Committee, and if you go to the appellant's bundle, at page 27, she was a deponent for the appellant before the Senior Deputy President. She said this in paragraph 3:

PN194

I made a complaint in a bid to encourage his curbing inappropriate behaviour towards myself and other females. I hadn't the faintest idea that the complaint would be used in a hearing where it was deemed necessary to sack Mr Shanahan, nor had I any intention in my words to perpetuate that outcome.

PN195

She says in paragraph 5:

PN196

I assumed the complaint had been withdrawn.

PN197

She only became aware of it when a mutual colleague, this is paragraph 6, said, "You people have ruined him." She says:

PN198

I was astounded, not only that I was addressed in such a manner within a professional situation, but that I was still involved somehow in the proceedings when I had heard nothing from UWS for a lengthy period of time.

PN199

Now, she, as I say, was horrified to learn that her complaint formed part of the material before the Investigation Committee which was used to ultimately found his dismissal. Now, that, in a nutshell, and I haven't obviously taken this Full Court to every passage in the evidence and to all of the contents of the material but that, in a nutshell, is the kind of evidence that was before the - if I can deal with one final matter. If I can take you to the respondent's bundle at 358? At 358, what the Committee said about O'Reilly was this. This is under the heading: Reasons. It is the third paragraph on the page in relation to Kett:

PN200

Mr O'Reilly didn't see the whole of the incident but he saw Ms Kett being lifted. He couldn't be sure of her reaction to being lifted. Mr O'Reilly said Mr Shanahan also tried to lift him but was unable to do so. He considered this to be tomfoolery. He appeared to be a truthful witness...

PN201

Etcetera, and his witness statement appears at page 288 of the respondent's bundle. At paragraph 3 on 288, Mr O'Reilly says:

PN202

She was clearly off the ground. Ian had her in the air for a matter of seconds. It wasn't a long time but he has previously tried this with me. He has actually lifted me, sort of, around the upper torso-ish. He's done this once or twice during the year.

PN203

Now, that, in a nutshell, was the material available to the Investigation Committee, and the report of the Investigation Committee which, as I say, founded the dismissal of the appellant, appears in the respondent's bundle at page 185 and following. If you go through to page 348, you will find the report of the Investigation Committee and, as appears from the reasons for judgment, as a result of the student making complaints, and Investigation Committee was established in accordance with the enterprise agreement, and the document at 348 and following is the report of that Committee. So that the Committee deals with some routine matters at 348, and at 350 and following, makes its findings.

PN204

In relation to Spillane, you will see at 351, the finding. The Committee was satisfied that this allegation was made out. Tsougranis, at 352, didn't give evidence but Frances Bush did. At 353, an allegation of harassment on the basis of sex and ethnicity was dismissed, as it ought to have been. At 354, the touching episode where the Deputy President differed from the view of the Committee, what is said is this, at the foot of 354:

PN205

Ms Bush was present when the events referred to occurred. Her evidence did not show Mr Shanahan had touched Ms Tsougranis inappropriately in the course of correcting her piano technique or that he had moved the music stands other than to be able to supervise her in the confined space available.

PN206

Bush was the witness not called by the University before the Senior Deputy President. At 355, Gately was not called and this complaint not pursued. At 356, Bush was not called and the complaint not pursued. At 357, Kett, and at 358, findings in general terms, Ms Kett's complaint established. At 359, Jifkins. Findings, 361, substantially made out although it goes on to say:

PN207

The allegation says that Ms Jifkins was smacked. It may be that "touched" is a more accurate description of what occurred. On balance, we find that Mr Shanahan did touch Cynthia Jifkins with his folder on the bottom, supposedly to hurry her on to class. He did make comments along the lines claimed by Jifkins and witnessed by Malfoy.

PN208

At 361, Stacker, not pursued. Herbert, 362, the matter made out in part and treated as of no consequence. There, the Committee's findings. Now, what then happened was this. Go, if you would, to page 368:

PN209

We cannot avoid concluding that the events of 2002 show an obvious pattern of behaviour on Mr Shanahan's part in relation to women students. The lifting incidents show a lack of appreciation...

PN210

Etcetera:

PN211

...public disrespect and insensitivity. The events involving Ms Spillane and Ms Herbert show marked misjudgment on Mr Shanahan's part when placed in a position of trust verging on an exploitation of his position as a teacher to engage young women students in potentially sexual relationships under the guise of spiritual assistance.

PN212

Bear that paragraph in mind. Go now to the transcript of the cross-examination of Professor Reid. She is the Vice Chancellor, and the cross-examination commences at 115 of the transcript volume. Start at page 133, paragraph number 1644. The question put to her is:

PN213

Do you say that surely, you regard the thrust of the complaint against Mr Shanahan as being that there was some sexual impropriety and motivation concerned in his conduct so far as these questions of physical contact are concerned?---Certainly, that's how, as I understand it, the complainants perceived it. That is certainly how the Committee judged the unwanted touching was motivated.

PN214

She is then taken to the passage to which I took you from the Committee's report. She is asked:

PN215

Do you see there is HEAVY pattern of behaviour?---Yes.

PN216

Go to the second paragraph which commences, "However." Read it?---I've read it.

PN217

Can we take it that it was a finding that you regarded as fairly important for the purpose of helping you understand the conduct complained of and found to have been committed by the Committee?---Yes, that is to say Shanahan's conduct in relation to Spillane and Herbert verged on...

PN218

Etcetera:

PN219

...potentially sexual relationships?---Yes.

PN220

She is then asked what the expression, "under the guise of spiritual assistance" means, this is 1649, and at 1652, she is asked:

PN221

Do you understand it to mean that under the outward facade, under the external appearance of spiritual assistance?---Yes.

PN222

The word "guise" ordinarily carries the suggestion of false external appearance?---Yes.

PN223

That is what you understood?---It carries to me the implication of a particular motivation being put forward when another motivation is, in fact, the driving motivation.

PN224

Now, coupled with that, it is perfectly clear that the Vice Chancellor, if you go to page 125 of the transcript - at 1560, she agreed - sorry, I will go back to 1557:

PN225

You took the view that there was undoubted sexual harassment, correct?---Yes.

PN226

1561:

PN227

You did it - that is, terminate - because you had no doubt whatever that what had happened was sexual harassment of a very serious kind. You had no doubt...

PN228

Etcetera:

PN229

...that the Committee had found that this was sexual harassment of a serious kind.

PN230

In the next paragraph:

PN231

It was sexual harassment, serious sexual harassment?---Yes.

PN232

At page 124, paragraph 1542, she took the view that the decision to terminate was, in effect, the inevitable outcome of the Committee's findings. It was put to her and she says, "yes", and she agrees that it was a clear-cut decision, 1543 and 1544. Now, go now to what Professor MacCallum, who was on the Committee himself said. In paragraph 3091, page 271, this is Spillane:

PN233

So far as allegation A was concerned, the gist of the complaint was that there had been a form of sexual harassment. I think the Committee saw its role to decide on the facts of the case, not to decide on the interpretation of those facts. That is the way we report and investigate.

PN234

So far as Spillane is concerned, at paragraph 3095, he said:

PN235

I think we are very clear about the role of the Committee which was to find out whether the facts alleged were supportable against the background of policies and that sort of thing. That was not the role of the Committee, to be specific on those, as you say, "they", that is the allegations prepared in advance for us.

PN236

3097:

PN237

As far as you were concerned, did you regard it merely as your function in regard to, say, Spillane to determine whether he made repeated telephone calls which were, in her estimation, unwelcome?---Yes, I did.

PN238

You didn't regard it as part of your function to assess and determine the content or the intended content of telephone calls?---Only insofar as it bore on the facts...

PN239

Etcetera:

PN240

...as to support it or not.

PN241

3101:

PN242

So did you regard it as your function merely to determine whether a number of telephone calls had been made?---Correct, yes, we did.

PN243

In the mind of Ms Spillane, those telephone calls were unwelcome?---Yes, we did.

PN244

Not concerned with motivation, clearly defined it as our role, the facts, telephone calls made?---Yes.

PN245

Unwelcome?---Yes.

PN246

Estimation of Spillane?---That's right.

PN247

Not the content...

PN248

Etcetera, etcetera, etcetera. Now, if you go on to paragraph 3151. I start by 3145, page 276. There are a number of allegations that Shanahan had either written or attached on the bottom of the folder a number of students, yes, there were. 3151: Did you see it as your primary function to determine Shanahan's motivation in keeping with conduct of that kind? Answer: No, we did not. Your focus - 3152: was on the effect of the conduct in the minds of those who were the subjects or the victims of it? Yes. In considering whether or not it supported the fact that it was unwelcome and so on, and so forth.

PN249

You will find similar passages at 3166, 3168. At 3168, the question was put in effect: In all the matters where there was physical contact of some kind between Shanahan and the female student, you didn't see it was part of your function to determine whether that conduct was sexually motivated on the part of Shanahan? Answer: That's correct. We were not there to investigate his motives but the impact on students and whether or not it was warranted. In paragraph - - -

PN250

SENIOR DEPUTY PRESIDENT DRAKE: What do you mean in 3166, is it meant to be "rope?"

PN251

MR WALES: That should read "grope." That should be - there's a "g" missing.

PN252

SENIOR DEPUTY PRESIDENT DRAKE: I had visions of lassos in my mind.

PN253

MR WALES: Yes, that's right. At 3166, it says: I can't address that question, that of motivation, we are simply looking at whether the things occurred and the reported comment: I don't have a view. At 3124, page 203: In your view, Shanahan's motivation was of no particular relevance to the investigation? That's true, it's not our role to investigate that. He is then asked about the passage, the precise passage which the Vice Chancellor agreed, she relied upon informing the view that there was sexual misconduct involved.

PN254

The passage was read to the witness, 3217: The accusation is a serious one? Answer: That would be a serious allegation. Question: Was it an allegation that was made? Answer: Not part of the matters considered specifically by the committee but part of the report providing I guess, help and advise the the Deputy Vice Chancellor. Question 3220: It was not part of the case against Mr Shanahan that he engaged women students in potentially sexual relationships under the guise of spiritual assistance was it? Answer: In terms of ..... no. In terms of generalities, in terms of unwanted behaviour and so on? Yes, it was.

PN255

3223: The committee did not put to Mr Shanahan, did it but so far as Ms Spillane's matter is concerned, his conduct on the day of the Palm Beach outing involved him acting under the guise of spiritual assistance to further a potential sexual relationship? Answer: To the best of my memory, no, we did not. As far as Ms Herbert was concerned. That was likewise not the matter of complaint was it? Answer: Not specifically, no. 3230, page 284: Verging means approaching but not getting there? Yes, etcetera. Is this correct? What did - this is 3234, page 284: What you meant to say was: Shanahan's conduct - this is Spillane and Herbert - gives rise to a suspicion that engaged her or them under the guise of, etcetera? Answer: Yes, something like that.

PN256

3285, 3235: The committee didn't find that as a fact? Answer: No specific finding on that. Question: And didn't intend to make a finding? That's true. It would be a matter of regret on your part wouldn't it if that particular sentence was misinterpreted as evidencing an actual finding of fact in those terms? Answer: Yes. So that what we have is this. The committee says: We are not concerned with sexual motivation. We are not concerned with breach of the codes of conduct, all we are concerned about is the question of whether the allegations are made out. How are the allegations expressed, expressed as "unwelcome conduct."

PN257

The committee's focus was: Did the conduct occur and was it unwelcome in the mind of the recipient? They had no concern, no interest in the question of the appellant's motivation. Was it horseplay, was it sexual motivated harassment? Answer: Not our concern, we simply were given the particulars, the allegations prepared for us and we made a finding as to whether or not they were made out. As to the passage put to the Vice Chancellor: No, that was never part of the complaint, never put to Shanahan, wasn't even a finding of fact. Will be a matter regrets on our part if it was used as a finding of fact.

PN258

What did the Vice Chancellor think was going on? She thought there was an inquiry into sexual misconduct, sexual harassment. She thought that the very passage which I took Professor MacCallum to was of help to her in determining whether there had been sexual misconduct. That is why the committee's finding seriously miscarried and that is why it is simply wrong to say that the conduct by the university of its own internal procedure was competent. It was in fact utterly incompetent in that the committee and the Vice Chancellor simply had two different views as to what the other was doing. Now - - -

PN259

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, remind me how the committee got to have the task?

PN260

MR WALES: Under the Enterprise Agreement - - -

PN261

SENIOR DEPUTY PRESIDENT DRAKE: Who constituted it though?

PN262

MR WALES: Professor MacCallum and two other persons.

PN263

SENIOR DEPUTY PRESIDENT DRAKE: Right, but who appointed them as the committee? Are they permanently there or are they rotating appointments?

PN264

MR WALES: It's an ad hoc committee. I'm not sure how they would have got together but it's not a permanent - as I understand the evidence, it's not a permanent committee, it's an ad hoc committee.

PN265

SENIOR DEPUTY PRESIDENT DRAKE: Created when the need arises?

PN266

MR WALES: Created when the need arises and it has clearly an academic member, it has someone - a staff association member as one member and a third person as a member. So the - I forget whether the Enterprise Agreement sets out the constitution of the committee but it's an ad hoc committee not a permanent committee got together for this purpose.

PN267

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN268

MR WALES: Now, even - let me see if I can quickly find something which I wanted to draw your attention. You may - so anyway, that is - if there are some other passages, I will take you to them later but that is why we say that the committee miscarried and that is why we say in our arguments, the exercise by the discretion of the Senior Deputy President also miscarried. Can I remind you - - -

PN269

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, can I - sorry, you will be tired of me asking these questions. Do you say that the committee miscarried or the Vice Chancellor miscarried?

PN270

MR WALES: Both. We say that it was a fundamental error in the university's process which we have identified, both in our written outline of argument which simply puts in written form what I have now put to you about the different views held by the Vice Chancellor and the committee about what each was doing, but we also say that the findings below by the Senior Deputy President erred because of errors in his reasons to which I will now take you, now that you have the background of the facts as determined.

PN271

At a convenient time I will take you to the balance of the reasons of the Commission below and explain why they are erroneous. Can I take you back then to the Senior Deputy President's reasons. I've taken you to what he said at paragraph 9 about the character evidence. I've taken you to what he said about the findings of fact on the complaints and the Palm Beach matter. In the bullet points you will note - it is a fairly long way down. It is the second last bullet points. You will see that his Honour says:

PN272

Following the remaining steps in the agreement process the report and the response came to the Vice Chancellor ...(reads)... Indeed, she conceded that she did not even know the appellant.

PN273

At 13 our submission that there was a fundamental failing in the decision process is recorded:

PN274

The committee confined itself to determining the truth of the allegations without interpreting whether the applicant's conduct ...(reads)... Several students themselves regarded his conduct as playful or foolish horseplay.

PN275

Reference to a medical condition and a reference to DSS and U Inc. That, as you know, is the case which says that the Commission is entitled in taking account of harshness to look at material which was not available to the decision-maker. So that although the decision-maker didn't have the report of Dr Teoh before it and didn't have the explanation of bipolar disorder, that is a matter which the Commission can take into account in determining whether as a matter of fact the dismissal was harsh and unjust, etcetera.

PN276

SENIOR DEPUTY PRESIDENT DRAKE: Yes. Mr Wales, what do you say was the university's knowledge about his condition?

PN277

MR WALES: Well, it knew that he had earlier been given leave because of his bipolar disorder but it did not have before it in regard this set of complaints evidence from Dr Teoh that the likely explanation was a hypomanic phase of his bipolar disorder.

PN278

SENIOR DEPUTY PRESIDENT DRAKE: They knew he had bipolar as a condition?

PN279

MR WALES: That is correct, because he had - in fact he had been required to cease work for a period and had been certified as fit for re-employment before he came back onto the campus.

PN280

SENIOR DEPUTY PRESIDENT DRAKE: And it is the provision of the medical reports in relation to that absence that provided the information?

PN281

MR WALES: Correct.

PN282

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN283

MR WALES: At 20, as I've indicated before, his Honour said:

PN284

My findings don't differ markedly from those of the committee...but does form a different view [paragraph 21] as to Tsougranis.

PN285

At 23 there's a reference to Teoh's statement about the difficulty in recollection caused by the hypomanic phase of bipolar disorder. At paragraph 26:

PN286

Mr Wales contended that sexual harassment required a sexual motive which he said is absent here. In my view, whether or not there was a sexual motive, the applicant's conduct was improper.

PN287

We say that that really is an inappropriate way in which to express the dilemma. The question was not: was there or was there not a sexual motive? That had never been put to Dr Teoh or to the appellant himself. It formed no part of the committee deliberations and was simply not the topic of any questions at all addressed to any witness on our side. It was not therefore, we say, proper to be approached on the matter that, well, whether there was or wasn't, the conduct was improper. There was no submission made that the conduct of the appellant didn't warrant rebuke and counselling.

PN288

The affected students who gave evidence in these proceedings on those incidents didn't characterise it so, that is, as stupid and ill advised tomfoolery. That is not, we complain, a complete statement of the relevant evidence because, although for example Ms Bush's complaint was not pursued before this Commission, her evidence was that when she had been tickled she saw his behaviour as merely playful. That is at page 357 of the respondent's bundle.

PN289

You will see at 357 so far as Bush is concerned she gave evidence. She confirmed that Shanahan had tickled her. She said she wasn't upset or offended. She considered his intent to be playful. She didn't like it and took action to ensure that she was not in a position where it could occur again. O'Reilly said it was tomfoolery (page 358). Mr Hart said it was foolish horseplay. If you go to page 285 of the respondent's bundle, in addition to the passage of cross-examination you will see that at 285 Mr Hart, who is a - I'm sorry, this is Ms Lupton. Ms Lupton, at 285, describes what happened to Ms Kett as a joke, and she confirms that Mr Shanahan tried to pick up Mr O'Reilly in the same manner as Allison Kett.

PN290

We know what Ms Stacker said. She was the one who was horrified. If you go to 293 you will see that what Ms Stacker said at 293 is precisely what we say the proper course was. At the very foot of the page she says:

PN291

I think he's a very valuable member of staff. He deserves the chance to consider his actions, curb them and resume teaching in a more socially acceptable manner.

PN292

That is, in a nutshell, our case entirely. At page 296, there is the statement of Miss Herbert to which you can take already that he was a generous person, it may just be a case of awareness of boundaries that was at issue. So that to say, as the Senior Deputy President said that: the effect of students who gave evidence didn't characterise the conduct as tomfoolery, is not really a properly comprehensive statement of the effect of the evidence of all of the students involved. Then he concludes 26 by saying: whether or not it was sexual harassment - note those words: whether or not sexual harassment - it was conduct which was improper conduct of a university lecturer.

PN293

We accept that but the question of whether it was sexual harassment is, as it were, fundamental. It is sexual harassment done for sexual motivation. That was never the case that was put. It was agreed, in paragraph 27 that the conduct was completely ill-advised but put no so serious as to warrant termination. At 28 this appears: I considered all these issues. There's a reference to Dr Teoh: I agree with Mr Miller - second last sentence, second last sentence, the inference is open that the applicant saw Dr Teoh to get a report put into evidence. Well, true, but so what - answer - I'm sorry, next sentence: I'm not persuaded that these factors mean that the applicant should be held any less accountable for his conduct.

PN294

Now, what does accountable mean in this context? No one suggests or is suggesting that the conduct didn't warrant rebuke and warning, but to say he shouldn't be held any less accountable, is a fairly opaque statement in this concept, particularly if what is meant by "is" that I will treat Dr Teoh's report as irrelevant. That is to say: if what it means is, well, bipolar syndrome or not, who cares, you have got to be held accountable, then that would be a completely erroneous way of approaching this particular appellant's problems. Twenty-nine: considering all these issues, the applicant's conduct in lifting and tickling female students remains improper. Well we accept that.

PN295

In my view, the dismissal was sound, sensible and well-founded. I find there was a valid reason for termination. Paragraph 32: the respondent sought to follow the process set out in the agreement. He did say: competently. Well, it didn't and to describe what occurred, the fundamental misunderstanding as a procedural blemish is, we say, an inappropriate use of the word "blemish". At 34, the reasons indicate: I have regard to the applicant's length of service standing as a teacher, submissions that for all practical purposes his career lies in a university or conservatorium.

PN296

In this context it might be argued that termination is harsh because he would have markedly poor prospects of re-employment in any academic institution. Mr Miller submitted that the evidence of Professor Boyd didn't support that. However, the reasons indicate: I recognise that in practical terms termination of employment for serious misconduct will reduce the applicant's prospects of academic employment. So his Honour appears to make a finding that there will be serious consequences for the appellant in termination. Is that justified when the applicant's behaviour may have been explained by his bipolar mood disorder?

PN297

His evidence was he took the medication throughout 2002. If he missed taking it it would only have been for the odd day. Dr Teoh says his prognosis is good provided he had been used to a closely supervised treatment program for bipolar disorder. I have not been persuaded, on the evidence, that I should give such weight to the possible medical explanation as to outweigh the considerations that led to termination of his employment. What were those considerations? We know that the Vice Chancellor got it wrong in terms of her understanding what the report meant to suggest.

PN298

The considerations that led to his employment were a complete breakdown of process. Both the applicant's counsel and Dr Teoh referred him as: socially awkward. The applicant is unlikely to be the only socially awkward academic: unfortunately for the applicant the same high standards of conduct towards students are required of all, and then 35: the factors don't persuade me that the termination is: harsh, unjust or unreasonable. This one has a duty to students but not in issue: Serious consequences flowed from the applicant's conduct, which I take to mean, serious consequences for the appellant himself.

PN299

However, the termination of employment does not thus become, in my view, harsh unjust or unreasonable, applying a fair go all around, I dismissed the application, and that is, with respect, not a proper statement of the issues, and not a proper consideration of the dilemma which confronted Senior Deputy President. It was conceded that the conduct of the appellant warranted review. The real issue was that on the one hand sexual harassment, proceeding from sexual motives or was it stupid horse-play. If it was the former, well one could not complain about termination. That was however, never the case that was presented and there was never a suggestion put to the appellant or to Dr Teoh that there was a sexual motivation in his physical contact with students.

PN300

If the view is taken that the conduct was simply ill-advised, immature and awkward horse-play, it is a matter that cries out, in the circumstances of this man's employment, for a rebuke, for counselling and for another chance, particularly when the evidence now before the Commission suggests from Dr Teoh's report and the report of the Palm Beach fracas, that when these events occurred the appellant suffered from the effects of his bipolar mood disorder. It would, in our respectful submission, be not simply unfair or harsh but an appalling injustice if an employee were dismissed in those circumstances where the conduct was foolish but innocent, where there was a psychiatric explanation and where the evidence from the psychiatrist tended to suggest that provided he took his medication there would no further problem.

PN301

It would be said no doubt: well, how do we know? How do we know that he will take his medication? Well, the answer is one sentence: we don't know. All we know is that he is in academic career which with this university spanned about 6 years. With other universities since '88 he has been employed in academic circumstances, there have been before the events of late 2002, no other complaints of a similar kind. There have been problems of relationships with students. There have been, as appears from the findings, initially at his first tenure review analysis, he wasn't given tenure. He was told to: mend his ways in various respects, none of them relevant to these issues.

PN302

A year or so later he was granted tenure. There is no history of complaints of conduct, in all his lifetime of work of the kind complained of in the latter part of 2002. The risk in giving the appellant another chance is minimal. None of the complainants suffered more than distress and the like. Understandable, but not the end of the world. If this appellant is given another chance, what are the risks? They are minimal. If his condition is stable there is no problem.

PN303

If, for some reason he does not take the medication and there's some recurrence, well he has had his chance but it would really be quite inappropriate, especially in the climate of the, as it were, modern approach to psychiatric disorders, not to allow re-instatement merely because there was some prospect, however small, of re-offending. If that were true, people who have these kinds of psychiatric disorders would never get employment.

PN304

It would give an employer in the modern world entitled to say: well, you have got bipolar syndrome and you are taking medication but I won't give you a job because there's some prospect, some risk that you won't take the medication and some untoward conduct with occur. Such an approach would be inconsistent with modern views on how to treat people, how to deal with people having such a condition and indeed, it would be a matter of surprise if the university you might think took such a stance.

PN305

SENIOR DEPUTY PRESIDENT DRAKE: Mr Wales, what would you say in the employer were to impose conditions about provision of medical reports and evidence of supervision?

PN306

MR WALES: It is all entirely practicable and because of the way in which the investigation process miscarried, that regime was never given a chance to be, as it were, put in place, but that would be an entirely practicable and manageable condition. Can I say this finally, that you will recall that - I will finish by pointing out this to you. Can I take you to the very end of Professor Reid's cross-examination. At page 141 -I'm sorry, I see the time, but if I may take 1 minute to finish on this note. Page 141, you recall paragraph 1727: you recall in general terms the contents of the witness statements of Boyd and Evans? I do. Assume them to be correct. Yes.

PN307

Assume that Shanahan was larger than life, boisterous, intelligent but not carrying with him emotional maturity, for one of his intelligence, awkward and difficult. I'm taking that as your interpretation because I can't quite remember. Just make some assumptions. Yes, assume that. Assume his personnel files showed that he had problems in the past but with the benefit of counselling he resolved those problems, etcetera. Assume further that the conduct dealt with by the committee was not sexually motivated at all. Simply, as Miss Herbert suggests, a problem with awareness of boundaries and so on.

PN308

Assume a number of complainants themselves took the view that it was ..... playfulness or boisterousness or lack of boundaries. Shanahan was a good and generous person. Assume further, a warning would in all likely have precluded a repetition. On that fairly lengthy you say you - it would necessarily have terminated his services? Answer: that lengthy set of assumptions is lengthy it is substantially a different case from this. That is our point, precisely. We say that the matters put to Professor Reid are an accurate statement of matters simply not in issue in the perceivers and were, in truth, a different case from the one which the Vice Chancellor thought she had before her when she made the decision to terminate and she agreed at page 142, paragraph 1740:

PN309

If it were the fact that through no fault of yours there had been an error, you would be first to want it corrected: Answer, yes. Not just a motherhood statement but a proposition that if there's been an error, if the assumptions put are correct, there is no practical impediment to re-employment. No suggestion able to be made that, even if dismissal was harsh, the university can't take him back on. If there had been an error she agrees she would be the first to want it to be corrected. They are my submissions, if it pleases the Commission.

LUNCHEON ADJOURNMENT [1.12pm]

RESUMED [2.18pm]

PN310

MR WALES: Just one reference before I sit down if I may. Your Honour, the presiding member asked me about the constitution of the committee, and I said it was an ad hoc committee. You will find it is the respondent's bundle, page 198, paragraph 49.17, you will find out how the committee is constituted.

PN311

SENIOR DEPUTY PRESIDENT DRAKE: Thank you, Mr Wales. Commissioner Raffaelli pointed that to my this morning, he found it, thank you. Yes?

PN312

MR MILLER: Thank you, your Honour. Can I just say this firstly and this is not by way of criticism of my learned friend. We have been provided with submissions by the appellants, some time ago. It is really a document, and again I don't say this in a critical way, by way of outline. Certainly, in address today, Mr Wales has taken this Court to a number of matters of detail that I do feel it is necessary to respond to. I had hope to be able to address for about 40 minutes but it might be about an hour and a quarter. There are points in the evidence that I feel it is necessary to take this Court to. Can I begin by saying this, that with respect, what my friends are doing is they are putting the case, or they are putting the proposition or the dilemma as it has been described, that was before Senior Deputy President Cartwright, way to high.

PN313

It never was the university's case that this Commission had to find sexual misconduct or Mr Shanahan's - the termination of Mr Shanahan's employment could not have been found to have been unfair. The university's case always was quite simply this that taking all of the allegations made against Mr Shanahan together, and in particular looking at those complaints made by students which were proven afresh as new matters before Senior Deputy President Cartwright, taking all of those matters together what that constituted was a pattern of conduct over a period of time in the year 2002. Again, taken as a whole, they provided the university with a valid reason for terminating his employment.

PN314

Sure it is - the university did contend that there elements of some of the episodes involved in - if I can describe it this way - the totality of the university's case, that would have, on a fair view of it, constituted conduct that would have infringed the university's policies on sexual harassment and I will have something more to say about that in due course. It most certainly was not the university's case that he as a man whom we accuse of sexual misconduct and that is all we say about it. The proposition was put much more generally, that his behaviour constituted misconduct and the submission was put on the basis that it was serious misconduct and, indeed his Honour below decided it that way, makes that quite plain in paragraph 26 of his judgment where - and my learned friend took you to this paragraph earlier where the Senior Deputy President says particularly, beginning in the second line:

PN315

Further Mr Wales contended that sexual harassment required a sexual motive on the part of the perpetrator.

PN316

Which he said is absent here:

PN317

In my view whether or not there was a sexual motive, the applicant's conduct was improper.

PN318

His Honour then goes on to talk about the lifting and tickling incidents and I will return to that part of his Honour's reasons in due course, but simply the point that I feel it is necessary to make to begin with is that the way in which my learned friend has put the university's case is not the way the respondent, at first instance, proceeded. What Senior Deputy President Cartwright inferred at the end of the day, was six days of evidence from three witnesses called by the applicant, who was Mr Shanahan. There were two character witnesses who gave evidence, Professor Boyd and Associate Professor Evans.

PN319

There were also statements tendered from two other witnesses. A statement by Ms Stacker, and of course there was a report by Dr Teoh. For the respondent university, nine witnesses were called and put on affidavit. Came, gave the evidence, were cross-examined. The Senior Deputy President had the opportunity to observe those witnesses give their evidence. Had the opportunity to see their evidence tested under cross-examination. Detailed written submissions were provided to his Honour, at the end of the proceedings. There were also detailed oral submissions made. My learned friend, Mr Wales' oral submissions, from memory, on transcript, occupy some 41 pages or so.

PN320

His Honour was also - or could I put it this way? Tendered before his Honour, was a substantial volume of documents, in respect of which submissions were made, or documents were referred to during the course of cross-examination of various witnesses. His Honour heard the evidence, had the opportunity to observe the witnesses. In my respectful submission, this Court would be slow to interfere with his Honour's decision on a number of basis, but firstly on this basis, that at best, what can be done in a hearing of this type is, this Court can be taken to snippets of the evidence. Those parts of the evidence, no doubt that the respective parties would say, mostly support the contention that we seek to put here today. The university's contention, quite simply, is this. That the findings that his Honour made were recently opened on the evidence.

PN321

Fundamentally what the university had to do before Senior Deputy President Cartwright, and it was put this way before his Honour, and his Honour made it quite clear to the parties, particularly at the beginning of the second day of the hearing, that setting aside whatever had happened at the university level, what the university was required to do, because an allegation of misconduct was made, was to prove the misconduct before his Honour. That is how the university proceeded. That is how the university put on its case. As I have already referred to, nine witnesses were called. They were put on affidavit. They were cross-examined, and in that evidence that I will take your Honours to, there was more than a sufficient basis, will be my submission at the end of the day, for his Honour to arrive at the findings that he did.

PN322

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller?

PN323

MR MILLER: Yes.

PN324

SENIOR DEPUTY PRESIDENT DRAKE: When you say that it was a course of conduct, a pattern of conduct in 2002 which we should take as a whole? Could you identify what you say are the incidents of conduct which you say we should take into account? So far as I can tell, there are three lifting and ticklings, and one touching on the top of an arm. Is that the summary?

PN325

MR MILLER: In paragraph 20 - perhaps if I can answer your Honour's question this way. On page 7, in his Honour's reasons, in paragraph 20, his Honour sets out the matters on which he has made, as he describes it: findings of fact. The first point in paragraph 20:

PN326

The applicant continued telephone calls to Ms Spillane - - -

PN327

SENIOR DEPUTY PRESIDENT DRAKE: Yes, I have seen that. So there is Ms Spillane - - -

PN328

MR MILLER: The lifting and tickling incidents - - -

PN329

SENIOR DEPUTY PRESIDENT DRAKE: The lifting and tickling with those three persons. The touching on the bottom with the folder, and do you also say, taking into account the touching Ms Tsougranis on the upper arm in the course of the music lesson? So is that the conduct?

PN330

MR MILLER: It is, your Honour.

PN331

SENIOR DEPUTY PRESIDENT DRAKE: All right. Twenty and 21?

PN332

MR MILLER: Indeed.

PN333

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN334

MR MILLER: They are the substantial matters on which his Honour made the findings. I might, if I may, make some submissions in respect of evidence given in support of the applicant, in the first instance by Professor Boyd and Associate Professor Evans. As I understand the submissions made, and the contention is that Senior Deputy President Cartwright failed to give proper weight, or any weight to their evidence. What the Senior Deputy President did with the evidence of Professor Boyd and Associate Professor Evans is, in my respectful submission, highly unexceptional. I can perhaps go directly to it this way. In paragraph 9, of his Honour's reasons, he says:

PN335

These character references were provided by Professor Boyd and Associate Professor Evans in the context of information provided, or rather, supplied by Mr Shanahan and his solicitor. On this basis, neither had a full appreciation of the complaints against Mr Shanahan. Consequently, while I accept the general character evidence, their evidence was not persuasive on the particular conduct issues to be determined by the Commission.

PN336

In order to better understand why it was his Honour was entitled to make that finding, if I could take your Honours back to the respondent's exhibits, and it is exhibit R14 and R15 that my learned friend took you to before. R14 begins on page 397, and if your Honours would be kind enough to just go to page 397? What you will find there is a letter, or a facsimile sent to Professor Ann Boyd from the solicitor for the applicant below, Mr Maguire. Some 15 pages including the cover page, and just walking through it, what effectively is set out in the 15 pages that follow, firstly is a letter from Mr Maguire, and then beginning on page 402 of the respondent's exhibit bundle, under the heading "allegations", there are allegations firstly that relate to Ms Spillane. Passing over, Ms Tsougranis is mentioned.

PN337

Ms Kett, over on page 405. It moves on to Ms Jifkins. Four hundred and six, Ms Stacker, and Ms Herbert, and then on page 408, there is a statement by Mr Shanahan, which was read, or rather tendered, in the proceedings below. Now, what his Honour found was that having been provided with that material, and substantially, Associate Professor Boyd is provided with the same material. Having been provided with that material, neither Professor Evans nor Associate Professor Boyd were fully appraised of the allegations, the complaints made against Mr Shanahan. That they were not fully appraised or given, the full documentation can be quite simply demonstrated by - and again, staying with the respondent's exhibit bundle. If I could take your Honours to the misconduct committee report, which begins on page 348. Now, that is a report that was completed on 10 June 2003. Your Honours will see that on page 369.

PN338

Your Honours will see, for example, if you would be so kind as to turn to page 350? Again, what one sees, are the allegations in respect of Ms Spillane, but much more information than appears in the body of the report. Not merely the allegations, but at the foot of page 350, for example, Mr Shanahan's response to the allegations. The committee's finding, in one paragraph on page 351, and the reasons for the committee making that finding, including, for example, or in particular rather, the committee's analysis, summary of the evidence that was put forward to the committee in support of the allegations. Now, that material was available to the applicant's solicitor well in advance of providing what information was thought relevant to provide to both Professor Evans - I withdraw that - Associate Professor Evans and Professor Boyd, in May of 2004, and ought to have been provided to them, in order to give them a full picture of the nature of the complaints made.

PN339

SENIOR DEPUTY PRESIDENT DRAKE: Why is that?

PN340

MR MILLER: I'm sorry, your Honour?

PN341

SENIOR DEPUTY PRESIDENT DRAKE: Why is that? Your usual practice of information provision of character evidence before a Court is to - for instance, in a criminal matter, advise the person supplying the report or reference, is the breadth of the allegation. The allegation at its highest, is the allegation made. Usually by the police. It is not usual to provide all the evidence in relation to the for and against case at the same time. Usually those matters are put at the highest, by provision of the outline of the allegation to the witness, and then they respond.

PN342

MR MILLER: Yes, your Honour.

PN343

SENIOR DEPUTY PRESIDENT DRAKE: What you are suggesting here is that all the evidence that was before the university ought to have been provided not just the breadth of the allegation itself?

PN344

MR MILLER: Well, what in fact happened here was that the allegations were put and Mr Shanahan's response to the allegations were put and neither Professor Boyd nor Associate Professor Evans were given any further information. That information was available at that time. Now, to the extent that the evidence given by both Professor Boyd and Associate Professor Evans is simply character evidence, then there is no difficulty with that.

PN345

SENIOR DEPUTY PRESIDENT DRAKE: Well, I am only asking you this, Mr Miller, because the necessity for character evidence is that they understand what the allegation is. It is not the obligation of the character witness to determine the factual matters, it is simply that they provide their character evidence in the most informed fashion, that is, with knowledge of the allegations.

PN346

MR MILLER: Yes, indeed. Perhaps I have not been clear enough about the purpose of this particular submission.

PN347

SENIOR DEPUTY PRESIDENT DRAKE: No, no, you should, I think.

PN348

MR MILLER: It is paragraph 9, that I understood to have been criticised by my learned friend, in particular, this part of the last sentence of paragraph 9, where what his Honour below said:

PN349

While I accept the general character evidence -

PN350

and one couldn't cavil with that -

PN351

their evidence was not persuasive on the particular conduct issues to be determined by the Commission.

PN352

That is all his Honour said. If their evidence was to have any probative weight at all as regards to the particular conduct issues that were raised before the university's misconduct committee, then all of the material that was available at the time, that was available to the applicant below ought to have been provided and then the two witnesses might have been able to give an opinion about the probity or the propriety or otherwise of the conduct but they simply weren't given that material. So it is on that more narrow point that I take issue with the submission I understood to have been made by my learned friend.

PN353

COMMISSIONER RAFFAELLI: But Mr Miller, do you think that the words, "Neither had a full appreciation of the complaints against Mr Shanahan," do you think that is correct?

PN354

MR MILLER: Yes, I do. I read complaints to be of a more general import than simply the allegations put. The complaints in order to properly understand them and importantly because material was available at the time both witnesses were asked to give their statements, in order to properly understand the complaints it would be ..... useful to have the summary of the evidence that the complainant has put before the committee. So it is on that basis that I make the submission and on that basis it was reasonably open for his Honour, and indeed, it was proper for his Honour to disregard their evidence to the extent that, as his Honour puts it, it was not persuasive on the particular conduct issues to be determined by the misconduct committee.

PN355

As general character evidence, his Honour accepted it. Now, it is not true on the other hand to say that there was no challenge to the character evidence in the proceedings below. Put quite simply, this was the proposition advanced below. A number of students have come forward and made complaints about Mr Shanahan's conduct. On that basis, the university was entitled to make submissions at the end of the day about Mr Shanahan's character. Mr Shanahan was cross-examined about his behaviour. Mr Shanahan gave - and I will take your Honours to this in more detail in a minute, gave quite contradictory evidence to the misconduct committee when one measures that against the evidence that he sought to advance before Senior Deputy President Cartwright.

PN356

So on questions of credibility, the reliability of his evidence but also objective evidence of his conduct from which it would be open to his Honour to draw inferences about Mr Shanahan's character. There was a lively contest about Mr Shanahan's character below. In my respectful submission, it couldn't have been incumbent for example, that from the respondent below to call witnesses from the University of Western Sydney to challenge the evidence given by Associate Professor Evans and Professor Boyd. That is simply not the forensic task that would be a matter of any surprise that the University of Sydney did not engage in. The other important part - - -

PN357

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, why would they have - what is your point there? That he said that he didn't have any prior complaints of this kind and that sits there as the evidence uncontradicted? What point are you making?

PN358

MR MILLER: The evidence at its highest from Professor Boyd and Associate Professor Evans was that he was a man who was capable and of good repute at the University of Sydney. At its highest, that was it. They had no direct knowledge of his work performance or his conduct at the University of Western Sydney so to that extent it simply didn't relate to the facts in issue. The fundamental facts in issue recorded on that was how Mr Shanahan had conducted himself in his employment at an entirely separate institution.

PN359

SENIOR DEPUTY PRESIDENT DRAKE: The evidence stands, does it not, though, uncontradicted in relation to his conduct at the University of Sydney?

PN360

MR MILLER: Indeed it does. The relevance of that to the issues that his Honour had to decide below is at best, marginal and his Honour is quite, in my respectful submission, precise and careful about how he formulates the view that he took of their evidence in paragraph 9 and the proposition is a narrow one, not persuasive on the particular conduct issues to be determined by the Commission. He goes no further than that and his Honour was entitled to take that view in my respectful submission. At the end of the day it is a question of weight to be accorded to his evidence. It is a question for his Honour to determine the relevance of their evidence to the particular allegations that the university raise in the proceeding below.

PN361

Can I then just turn to the submissions that my learned friend has made about the report of Dr Teoh? Can I take your Honours to the report which begins, from memory, at page 9 of the appellant's exhibits. Now, there are some aspects of that report that in my submission, bear highlighting. On page 10, of the appellant's exhibits, your Honours will see the heading: Psychiatric history. Down - it is the fourth paragraph from the bottom, appear these words:

PN362

Mr Shanahan attended his sessions regularly through 2001. His mood eventually improved and he stopped seeing me early in 2002.

PN363

Just before I move from that. In the respondent's exhibits, your Honours will find documents that relate to those matters reported by Dr Teoh, what I have just taken your Honours to. On page 43 - I will withdraw that. On page 44 of the respondent's exhibits is a letter dated 2 January 2001 addressed to Mr Shanahan from the Director of Human Resources of the University of Western Sydney. Materially, the second last paragraph in that letter reads:

PN364

As you have previously been informed you will be on paid sick-leave until 15 February 2001. I will approve an initial period of 2 months sick-leave without pay commencing on 16 February 2001. It will be incumbent upon you to contact human resources during that time to organise re-examination by HealthQuest as recommended in March or April 2001.

PN365

Your Honours, I don't think it is controversial for me to make this submission, that for some time prior to January 2001, Mr Shanahan had been absent from the university on paid sick-leave on account of his psychiatric illness. Now, the sequence works backwards unfortunately but on page 43 of the respondent's exhibits - and the date is material, here we have a certificate from Dr Teoh, Tuesday, 9 January 2001 which appears to have been provided to the university within 7 days at least of the letter that I have just taken your Honours to on page 44, certifying that Mr Shanahan had attended Dr Teoh's clinic on 9 January 2001.

PN366

He had been treated for major depression, has recovered sufficiently to return to his normal duties and that is the full extent of the certificate. Then just to complete the sequence, page 432 of the respondent's exhibits. Again a letter to Mr Shanahan from the university's human resources department. Paragraph 1, thanking him for providing the certificate. I don't think it is controversial, it is the certificate that I have just taken your Honours to. Paragraph 2, the university is prepared to accept the certificate and have him return to work and then there are some other matters set out in the letter which are not immediately relevant.

PN367

The point about all of that is simply when one ties that back to Dr Teoh's report and what appears at page 2 of his report, page 10 of the applicant's exhibits, that in early 2001 and in late 2000 he had been seeking treatment for his psychiatric condition. His mood improved through 2001, he stopped seeing the doctor early 2002, he did not then see the doctor again until early 2003. So he ceased visiting the doctor. Now, in his evidence before his Honour, what Mr Shanahan said - he was asked some questions about whether he had decided to - on a view that he had formed himself, stop taking his medication and his evidence was effectively that if he had it had only been on a few days during the year 2002, that is the year in which these incidents occurred.

PN368

Your Honours will find on page 9 of Senior Deputy President Cartwright's reasons - this is in paragraph 34 - his Honour makes this observation:

PN369

The applicant's evidence was that he continued to take his prescribed medication throughout 2002 and that if he missed taking it, it would only have been on the odd day.

PN370

His Honour then goes on to say:

PN371

Dr Teoh says his prognosis is good, provided he adheres to a closely supervised treatment program for his bipolar mood disorder.

PN372

Now, at best the evidence before his Honour - and it was for the applicant below to advance their best case on this point - was that so far as Mr Shanahan was concerned he had adhered to his treatment program in 2002 and, yet, this abhorrent occurred, the conduct of which the University complains that pattern of conduct that I referred to earlier.

PN373

SENIOR DEPUTY PRESIDENT DRAKE: Isn't the relevant point the absence of supervision, Mr Miller?

PN374

MR MILLER: Well, your Honour, that would be a matter of expert opinion evidence.

PN375

SENIOR DEPUTY PRESIDENT DRAKE: Isn't that what Mr Teoh says, "supervised treatment"?

PN376

MR MILLER: What the doctor says about that appears on page 17.

PN377

SENIOR DEPUTY PRESIDENT DRAKE: Yes, of what?

PN378

MR MILLER: Of the appellant's exhibits. Page 5 of - - -

PN379

SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry, just one moment.

PN380

MR MILLER: The observation that I take your Honour to be referring to is in the third-last paragraph which says:

PN381

He has a good prognosis, provided he adhered to a closely supervised treatment program for his bipolar mood disorder.

PN382

That is what the doctor says. The doctor also says a couple of paragraphs up from that:

PN383

Mr Shanahan's condition can be stabilised with treatment, however, he has partial insight into his condition and has not persisted with his treatment, especially during periods when he noted some improvement.

PN384

It was on the basis of material of that type and Dr Teoh's report that Mr Shanahan was asked questions about, what was happening in 2002? His evidence was, doing the best that he could, that he had adhered to, as it were, the drug regime that he then had in place for his psychiatric condition and, yet, even in those circumstances the abhorrent conduct that the University complains of occurred during that year.

PN385

Can I just say this about Dr Teoh's report and how his Honour dealt with it. What Senior Deputy President Cartwright refused to do was to accept the medical evidence as an excuse for Mr Shanahan's conduct. Dr Teoh's report is, in my respectful submission - Dr Teoh's was not requested for cross-examination, there was no objection to the tender of the report, that is conceded, but Dr Teoh's report is, particularly in light of Shanahan's evidence, that he continued with his drug regime during that period of time. It is of no great assistance and was of no great assistance to the applicant at the first instance hearing before Senior Deputy President Cartwright.

PN386

It was open to his Honour to not accept that medical evidence as an excuse. Importantly, also, it was open to his Honour to take this into account. If I could ask your Honours to go to page 367 - - -

PN387

SENIOR DEPUTY PRESIDENT DRAKE: Why was it open to him not to accept it as an explanation? There was no contrary position, no cross-examination, no other evidence called. Why wasn't it open - why wasn't it as the only medical evidence before the Tribunal, the only evidence available as to the effect of the condition?

PN388

MR MILLER: Well, can I deal with that this way. Again, if I could ask your Honours to be so kind to go back to the applicant's exhibits on page 13, which is the last page of Dr Teoh's report. The second paragraph:

PN389

Mr Shanahan stated that he could not recall several of the allegations.

PN390

Now, firstly, that is inconsistent with what Mr Shanahan said to the Misconduct Committee. Before the Misconduct Committee Mr Shanahan engaged in detailed denials, specific denials of all of the allegations made against him, so his Honour was entitled to take that into account. Secondly, Dr Teoh goes on to say this:

PN391

It is likely that he would have difficulty recalling specific events during his period of hypomania.

PN392

There was nothing in Dr Teoh's report, nothing in Mr Shanahan's evidence to tell you when he was in a period of hypomania and when he was not, so there is nothing to tie this doctor's opinion to, in any forensic way, the events that the University complains of. There is simply no linking evidence. Now, for the doctor then to go on and in the last sentence in that paragraph say that:

PN393

The symptoms described in the preceding sentence are consistent with the hypomanic phase of the bipolar mood disorder.

PN394

Takes it no further. We don't know when Mr Shanahan was in the hypomanic phase of the mood disorder, but what we do know is that very close in time to these events occurring, Mr Shanahan purported to have very clear recollection to the extent that he engaged in specific denials of all of these allegations, very specific denials and did it in a very robust way.

PN395

The other thing that his Honour properly took into account in disregarding the medical evidence as any sort of coherent or acceptable explanation is set out in paragraph 23 of his Honour's reasons, where his Honour says this:

PN396

In making the findings that his Honour made...

PN397

If I can paraphrase:

PN398

Mr Shanahan denied the lifting and tickling allegations.

PN399

Now, very importantly:

PN400

Mr Shanahan denied the lifting and tickling allegations.

PN401

If I can just pause there. Very importantly, what is said to have come out of the medical evidence, this inability to recall, before his Honour Mr Shanahan's evidence was that his inability to recall only related to the lifting and tickling allegations. He had no problem remembering the detail of the other allegations, so his Honour was clearly troubled by that in this sense, that what appeared to be the case, if I may put it this way, was that this purport of medical explanation was only being raised in respect to those particular allegations.

PN402

Now, the lifting and tickling incidents did not occur in the one week, they are spread over a number of months and it was open for his Honour to be sceptical at the least:

PN403

This selective invocation of an inability to recall as a result of some generalised diagnosis of a bipolar mood disorder which may, from time to time, have Mr Shanahan in a hypomanic state.

PN404

His Honour simply did not accept that the evidence showed that there was any credible link between the two and, as I've already submitted, his Honour was more than entitled to take into account and to give very significant weight to the specific denials that Mr Shanahan made to the University's Misconduct Committee in respect of all of the allegations, including the lifting and tickling. Why should this medical explanation only pop up with the lifting and tickling allegations, that concerned his Honour and his Honour wasn't - - -

PN405

SENIOR DEPUTY PRESIDENT DRAKE: Why should it, what?

PN406

MR MILLER: Why should the inability to recall the purported medical explanation only pop up and become effective in respect to those specific allegations, the lifting and tickling allegations? No acceptable explanation for that, his Honour wasn't prepared to accept it. Can I also just say this, what his Honour was also more than entitled to take into account was the applicant's failure to propound any like explanation before the University's Misconduct Committee, unless there be any doubt that the opportunity was open for him to do that. In the respondent's exhibits at page 367, your Honours will see that that opens up at page 20 of the Misconduct Committee's report.

PN407

There is no doubt that Mr Shanahan knew there was an opportunity to put medical evidence before this Committee, because he did. He put forward medical evidence about a traffic accident that he had and the gravamen of that evidence was, well, the lifting and tickling allegations are probably not right because I've got a back injury from a traffic accident that I had not that long ago, so I probably wasn't in a fit state to lift these people, or at least there would be some significant doubt about it.

PN408

Through his counsel before Senior Deputy President Cartwright, Mr Shanahan conceded these incidents did occur. Before the Misconduct Committee - your Honours I don't want to infringe the rule against repetition too much - but he made very specific denials that any such thing had occurred. So taking all of that into account in my respectful submission, the Senior Deputy President was certainly not entitled to disregard Dr Teoh's evidence, but was more than entitled to deal with it the way he did, to not accept it as a credible excuse, or credible explanation, which is the effect of what his Honour did.

PN409

Can I then just move on to some submissions that my learned friends have put about what, if I may describe it this way, as the Palm Beach fracas. Your Honours would be aware there was an incident in Palm Beach in 2002, if I can just paraphrase the point that way. That matter came before his Honour, not as a result of anything that the applicant sought to do below.

PN410

They were documents that were produced in answer to a subpoena that the respondent University had issued to the New South Wales Police Service. Those documents were put to Mr Shanahan in cross-examination, so some of the matters raised in those documents were put to Professor Boyd. At the end of the day, can I just say this, amongst those documents there was a statement of facts drafted by the Police Officer - the informed Police Officer - as my learned friends explained to you that was the statement of facts that appears on the face of the record at least anyway, to have gone forward to the learned Magistrate who dealt with the matter on the basis of section 10, so it was found that the offences had been committed but no conviction was entered.

PN411

It is probably proper for me to also add that there was an appeal by the prosecutor to the District Court and the District Court confirmed that that was an appropriate way to deal with the matter. Nevertheless, we don't know what the submissions made to the Local Court were. We don't know the basis upon which the section 10 application was granted. What does appear in that statement of facts is - and I will put this as neutrally as I can - a disturbing narrative about the conduct of the person.

PN412

The University contended that this material was relevant, at least in part, to answer the testimonials given by Associate Professor Evans and Professor Boyd and, indeed, that statement of facts was put to Professor Boyd in cross-examination, so that was how that material came before his Honour at first instance. Certainly, at first instance and now before this Court, what the applicant contends for as it is, that what we have got is proof positive of there being something quite seriously wrong with Mr Shanahan during this period, this is abhorrent and out of character conduct. There has been an attempt today to tie those incidents to the diagnosis given by Dr Teoh.

PN413

If that were seriously to have been pursued before his Honour at first instance you would have expected that Dr Teoh would have been given that material and would have been asked to expressly address it and then his Honour would have had expert opinion evidence tying all of these matters together. In my respectful submission, it is not open to my learned friends to submit to this Court that that material should have been accepted by Senior Deputy President Cartwright in that fashion.

PN414

At the end of the day, indeed, his Honour dealt with that material which was, in my respectful submission on any fair view of it, highly prejudicial to Mr Shanahan, but his Honour dealt with it in the appropriate way, by deciding to effectively not take it into account and to focus upon the specific allegations about Mr Shanahan's conduct at the University of Western Sydney.

PN415

In the absence of appropriate expert opinion evidence his Honour couldn't be asked to draw the conclusions that your Honours are being asked to draw today, putting that material together with Dr Teoh. The evidence simply wasn't on that would have allowed that to be done. His Honour dealt with it in the most fair way. It is unexceptional and in my respectful submission, can give rise to no complaint.

PN416

I don't want to spend too much time wading through the evidence of the female complainants who, firstly, provided statements to the University's Misconduct Committee and, then, went on affidavit and came into evidence before his Honour. My learned friend, Mr Wales, took you through the evidence of, effectively, all of them. Your Honours, I don't intend to trawl back through it in great detail, but there are just a number of points in their evidence that I would seek to highlight in order to make good at the end of the day our submission that, a view quite contrary to the view contended for by the appellant here was reasonably open to his Honour below on the evidence.

PN417

First, if I can deal with what my learned friends have had to say about the evidence in Spillane. In our submissions, if I can put it that way, the submissions made for the University to his Honour which are found at page 452 to 453 of the respondent's exhibits at the relevant part of the submissions are at any case. Your Honours, the submissions begin at page 450 of the respondent's exhibits. If your Honours would be so kind as to go to page 452, you will see a heading: The Evidence Of Colleen Spillane. As I understood it, Mr Wales made this submission earlier today, that the University made no complaint about an incident on 5 October 2002, when as I submitted to his Honour below, at Mr Shanahan's invitation:

PN418

Ms Spillane went to Mr Shanahan's house at Dundas for the purpose of having her thesis proof read. On Mr Shanahan's evidence, inviting students to his private residence was a normal part of carrying out his work responsibilities.

PN419

Can I just pause there. The submission that I put to his Honour below on that part of Mr Shanahan's evidence was this:

PN420

But for the exercise of his authority as an employee of the University of Western Sydney Ms Spillane wouldn't have been there.

PN421

He saw it as an extension of his normal work activities, that is how she came to be there on that day. It most certainly is not the case that the University made no complaint about this incident to his Honour, at first instance.

PN422

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, except that he did make advances to Ms Spillane, what would be the University's complaint about that?

PN423

MR MILLER: Well, perhaps I should take your Honour to what the submission was - - -

PN424

SENIOR DEPUTY PRESIDENT DRAKE: Asking and getting a "no" can't be - - -

PN425

MR MILLER: - - - before his Honour below.

PN426

SENIOR DEPUTY PRESIDENT DRAKE: Well, there would be a lot of men in trouble for that.

PN427

MR MILLER: Indeed, and properly in a University context with a relationship between a teacher and a student, or a lecturer and a student - - -

PN428

SENIOR DEPUTY PRESIDENT DRAKE: Was he her teacher or lecturer at this stage?

PN429

MR MILLER: He was exercising his authority as a lecturer employed by the University of Western Sydney.

PN430

SENIOR DEPUTY PRESIDENT DRAKE: He wasn't actually lecturing or teaching her at this stage, was he?

PN431

MR MILLER: No, he was not but, in my respectful submission, that is quite immaterial.

PN432

SENIOR DEPUTY PRESIDENT DRAKE: All right, so he was - because he was a lecturer and was performing a function related to her course, that is checking her work - - -

PN433

MR MILLER: Yes.

PN434

SENIOR DEPUTY PRESIDENT DRAKE: - - - you say that to make an approach to her at all was improper?

PN435

MR MILLER: She wouldn't - yes, I do.

PN436

SENIOR DEPUTY PRESIDENT DRAKE: Right.

PN437

MR MILLER: That was the submission made to his Honour below, that she wouldn't have been in that situation but for the fact of Mr Shanahan's position as a lecturer at the University of Western Sydney. Firstly, he wouldn't have had contact with her. Secondly, he wouldn't have known such basic things as - apart from who she was - that she was writing a thesis and that the time had come maybe for some proof reading to be done on that.

PN438

SENIOR DEPUTY PRESIDENT DRAKE: So the opportunity to come into contact, to make the approach, arose out of his employment?

PN439

MR MILLER: That is right.

PN440

SENIOR DEPUTY PRESIDENT DRAKE: If she had been sitting in a coffee shop at the University and he approached her and asked her out, would that have been improper?

PN441

MR MILLER: No, but that is not the situation. The situation is that quite expressly, Mr Shanahan's evidence and it is summarised in paragraph 11 of the submissions that were put for the University as they appear on page 452 of the respondent's exhibits, that he invited Ms Spillane to his house for the purpose of proof reading her thesis and on his evidence inviting students to his private residence was a normal part of carrying out his work responsibilities, so we understood on 5 October 2002 that Ms Spillane was there because of an exercise of his authority and in the carrying out of his responsibilities as a University lecturer.

PN442

What the University then contended for before his Honour at first instance was that his conduct, which I sought to summarise in paragraph 12 on page 452, putting his arm around her, kissing her on the forehead, stating he was in love with her, stating he had been in love with her for a long time, attempting to hold her hand, continuing to do so after Ms Spillane pulled her hand away, making further remarks of a romantic nature such as:

PN443

I care about you very much. I want to have a relationship with you.

PN444

Is entirely inappropriate. In the context of the position of trust between a University lecturer and a student, in a context in which the lecturer perfectly well understood what he was doing - - -

PN445

SENIOR DEPUTY PRESIDENT DRAKE: Have you got any authority for that proposition, Mr Miller?

PN446

MR MILLER: I'm sorry, your Honour?

PN447

SENIOR DEPUTY PRESIDENT DRAKE: Have you any authority for that proposition? Can you quote me any cases where that kind of conduct was found to be inappropriate?

PN448

MR MILLER: No, your Honour, I made the submission, simply - it was a submission put forward to his Honour at first instance on the basis of - - -

PN449

SENIOR DEPUTY PRESIDENT DRAKE: Well, his Honour might have accepted that but I - - -

PN450

MR MILLER: Yes, I appreciate that.

PN451

SENIOR DEPUTY PRESIDENT DRAKE: - - - but you have some trouble with me on that point and I would like to know if you have any authority on it.

PN452

MR MILLER: Well, your Honour, I can't give your Honour authority directly on the point, but I certainly do advance the proposition on this basis, that there is by nature of the relationship between a University lecturer and a student, a relationship of trust. It is a proposition that is a notorious proposition - - -

PN453

SENIOR DEPUTY PRESIDENT DRAKE: But Mr Miller I don't - I'm not disputing with you, I don't think anybody could - - -

PN454

MR MILLER: Yes.

PN455

SENIOR DEPUTY PRESIDENT DRAKE: If there is a relationship between a University Professor and a student, there is. I think it is a big leap to say that on the approach of a male/female, male/male, whatever it is, a sexual approach, a, I'm interested in you approach between a University lecturer and a student is necessarily inappropriate conduct or conduct that is not able to be engaged in.

PN456

MR MILLER: If it was one clumsy approach and that was it, then probably what the Vice Chancellor - as Reid said in evidence - would have applied and that would have been the end of it, but it is not.

PN457

SENIOR DEPUTY PRESIDENT DRAKE: What was that, remind me?

PN458

MR MILLER: That if this was all there was to it, if this was the only complaint made against Mr Shanahan, it wouldn't be grounds for his dismissal. It probably would be grounds for him to be counselled if the student made a complaint about it, but taken in and of itself it wouldn't be grounds for his termination. Importantly, what the University relied upon before the Senior Deputy President was a pattern of conduct, stretching over a number of months.

PN459

SENIOR DEPUTY PRESIDENT DRAKE: But you say it is improper, or it is conduct which of itself is - could expose Mr Shanahan to counselling, or disciplinary action, asking a student out?

PN460

MR MILLER: In the context in which this occurred, yes?

PN461

SENIOR DEPUTY PRESIDENT DRAKE: And what context is that, that he is marking her paper?

PN462

MR MILLER: That he is marking her paper.

PN463

SENIOR DEPUTY PRESIDENT DRAKE: He would help - - -

PN464

MR MILLER: Helping her with her paper.

PN465

SENIOR DEPUTY PRESIDENT DRAKE: All right.

PN466

MR MILLER: In the context of carrying out his work duties, yes.

PN467

SENIOR DEPUTY PRESIDENT DRAKE: All right, I understand your petition.

PN468

MR MILLER: And then turns that into an opportunity, if I can put it that way to create a romantic interlude, yes.

PN469

SENIOR DEPUTY PRESIDENT DRAKE: So at least on that occasion he made an approach to her, I don't know if he had an opportunity. I wouldn't go quite that far but in that context whilst looking at her paper, he asked her out?

PN470

MR MILLER: Professional distance ought to have been maintained in that context. The relationship between lecturer and students has been engaged, engaged on his terms and he ought to observe the protocols of that which - and your Honour, if I can just try and make a little better, the submission on that point. There was a lot of evidence before His Honour, about university codes of conduct, particularly on sexual harassment. And there's a whole list of objective conduct that staff are told to take into account and not to transgress upon. Now - - -

PN471

SENIOR DEPUTY PRESIDENT DRAKE: Yes, Mr Miller, I don't have any difficulty with the fact there were codes of conduct, it's just that your submission is very general and there maybe all sorts of policies on sexual misconduct and sexual harassment - - -

PN472

MR MILLER: Yes, your Honour.

PN473

SENIOR DEPUTY PRESIDENT DRAKE: A man asking a woman out is not sexual harassment, so far as I know and what I'm asking you here is, whether in the context of this relationship, as a university employee and student, you say that the thing that coaxed this in that relationship is the fact that he was marking the paper at the time?

PN474

MR MILLER: Yes, yes.

PN475

SENIOR DEPUTY PRESIDENT DRAKE: Is there anything other than that that coaxed it in that relationship and imposes that?

PN476

MR MILLER: Without the engagement of the relationship between lecturer and student because it's in the work context, no. The submission would fall away.

PN477

SENIOR DEPUTY PRESIDENT DRAKE: No, no. What I'm asking you is whether you limit that engagement - the relationship that prohibits him approaching her, to the fact that he was helping her with her paper, or do you say that it's wider than that simply because he was a lecturer and she was a student?

PN478

MR MILLER: No.

PN479

SENIOR DEPUTY PRESIDENT DRAKE: I'm trying to - I find it - - -

PN480

MR MILLER: Your Honour, I couldn't possibly put it that way.

PN481

SENIOR DEPUTY PRESIDENT DRAKE: All right. Now, I understand what you are saying.

PN482

MR MILLER: They are adults.

PN483

SENIOR DEPUTY PRESIDENT DRAKE: All right.

PN484

MR MILLER: You know, and Mr Wales has made some submissions to you on that and I embrace those submissions.

PN485

SENIOR DEPUTY PRESIDENT DRAKE: You say that the position is distinguishable because he was in fact marking the paper?

PN486

MR MILLER: Indeed.

PN487

SENIOR DEPUTY PRESIDENT DRAKE: All right, thank you.

PN488

MR MILLER: Your Honours, on page 453 of the respondent's exhibits. What we then set out in the submissions to the Senior Deputy President in the sub-paragraphs to paragraph 13 which begins on page 453 is a summary of what Ms Spillane's evidence was, terms of the effect upon her at what Mr Shanahan - well, Mr Shanahan's behaviour on 5 October 2002. So the submission that was put to the Senior Deputy President in the first instance appears in paragraph 14 and 15 and it was simply this.

PN489

It was the context of the occasion and as it was put: That it could only have been arranged by him as it was and reliance upon the position of authority and trust he held as a result of his university employment but the conduct isn't appropriate. In that context: That the employment relationship engaged. My submission, His Honour, was entirely open to His Honour to accept that submission but again, and it was expressing: even in respect to Ms Spillane, this is only part of the story.

PN490

The difficulty, if I may put it this way for the appellant with Ms Spillane's evidence is that His Honour, then had evidence of continuing and it was open to His Honour to interpret it this way: continuing attempts by Mr Shanahan to engage this young woman in some romantic way. And your Honours have been taken to the evidence about the continuing telephone calls. Now, I will just say one thing about that part of Ms Spillane's evidence.

PN491

His Honour is criticised by the appellant as I understand it for finding that he makes - just turn to the paragraph. I think it's paragraph 20 of His Honour's reasons where - I will withdraw that, it's not paragraph 20. The third part of His Honour's reasons where he puts this proposition that after a certain date, Mr Shanahan would have been aware - paragraph 12, bullet point 10 indeed and as it has been pointed out the bullet points are not numbered but your Honours will find it at page 3 of 12 and it's about four fifths of the way down, four lines from the bottom.

PN492

Well, beginning at a couple of lines above that. On 15 November 2002 Ms Spillane's mother answered her mobile phone and asked the applicant to stop calling her daughter. After three more calls on 19 November 2002, which he denied. The applicant stopped calling. By that time he would have been aware that other students had lodged written complaints against him and as I understood, the submission made earlier, His Honour was criticised for that finding. Now, the evidence was that letters had been sent from the university on about 13 or 14 November. We are dealing here with the events of 19 November. Just on a straightforward, common sense basis, it was open for His Honour to draw the inference that by 19 November, Mr Shanahan was aware that other complaints had been made.

PN493

But more importantly, if one then - I apologise your Honours, it's defined. What His Honour also found and the basis for the finding, the important finding, that Mr Shanahan would have known by about that time that the calls, the continuing calls to Ms Spillane were unwelcome. Because Ms Spillane had asked him to stop making the calls well before that date. Not in so many words certainly but there was a telephone call prior to that date which Mr Shanahan again made offers to assist with her thesis, Ms Spillane made it clear to him that his assistance was no longer required and that another lecturer at the university was supervising her thesis.

PN494

So on whichever basis - I withdraw that. On whichever part of the evidence one looks at, it was open for His Honour to infer that by 19 November, on which he had made three calls, although denied, Mr Shanahan was aware that the calls were unwelcome, so far as Ms Spillane was concerned. Can I also just say this, Mr Wales made a submission as I heard it along these lines. That finding of His Honour in paragraph 12, bullet point 10, quote:

PN495

By that time he would have been aware that other students had lodged written complaints against him.

PN496

Mr Wales made the submission that implicit in that finding was that Mr Shanahan had stopped calling because he had received letters from the university. Well, His Honour makes no such finding, implicit or otherwise. In it there was another basis, either the common sense basis that the letters having been sent out on the 14th and the 15th and the calls persisting to the 19th or the earlier conversation of Ms Spillane, when she tried to make a complaint to Mr Shanahan. At the very least, she had said to Mr Shanahan: There's no need to keep contact with me, another lecturer at the university is helping me with my thesis.

PN497

So the important finding by His Honour that Mr Shanahan would have known that these calls were unwelcome was reasonably open to His Honour on the evidence. Paragraph 12, bullet point 12, which on my copy of His Honour's reasons is on page 4. Excuse me for a moment, your Honour. It is paragraph 12, bullet point 11. Your Honours will recall some submissions were made about the evidence of Ms Tsougranis.

PN498

One of the complaints that Ms Tsougranis advised was this. That amongst other aspects of Mr Shanahan's conduct that she found unwelcome during some tuition Mr Shanahan was giving in piano playing, that he had touched her on a number of occasions during that lesson in a way that she found objectionable. The basis upon which His Honour makes the finding in bullet point 11 in paragraph 12 and this is the finding. That Mr Shanahan had touched - sorry, I will withdraw that:

PN499

...had touched her arm several times during her playing in a way not required to correct her mistakes.

PN500

That was the important point about Ms Tsougranis' evidence. Now, what was the basis for that finding? If your Honours go to footnote 23, you will see that what the Senior Deputy President does is to set out a little bit of detail, the transcript references in which Ms Tsougranis gave her evidence. The effect of Ms Tsougranis' evidence was this:

PN501

That touching her on the upper part of the arm, above the elbow while she was playing the piano was utterly inefficacious. It couldn't possibly physically, mechanically, have any effect upon correcting her playing technique.

PN502

That was her evidence in re-examination after she was cross-examined on the point by Mr Wales before His Honour. So it was open to His Honour to find was that Mr Shanahan's repeated touching of Ms Tsougranis during this music class had nothing to do with seeking to correct her technique and it was an invasion of her space and again, your Honours will see the transcript references relied upon by His Honour at the footnote 23 of His Honour's reasons. But what His Honour also took into account was Mr Shanahan's statement to the misconduct committee that he was repeatedly stopping her by verbally asking her to stop and before the committee, Mr Shanahan denied the allegation that he touched Ms Tsougranis on the arm or anywhere else.

PN503

As His Honour said: Having seen the evidence of both, I would prefer Ms Tsougranis' evidence. Again, finding open to His Honour on the evidence. Your Honours were then taken to a statement made by Claire Herbert which is found in the respondent's bundle, in the respondent's exhibits at page 387. As I have heard my learned friends submission on that, effectively, it was along these lines that the gist of Ms Herbert's evidence was that Mr Shanahan was a good person and your Honours were taken to a passage and a statement on page 392, which is the original statement, if I can describe it this way that Ms Herbert supplied to the university's misconduct committee.

PN504

I don't want to take your Honours through the whole statement but I commend the whole statement as a document to read because Ms Herbert says a number of other things about Mr Shanahan and it is simply not the case that all she says about him is that he is a good person. If I can just illustrate it this way. Back on page 389, on paragraph 14 of her affidavit, sworn on 10 May 2004, Ms Herbert says this:

PN505

I did not make a formal complaint about Mr Shanahan's behaviour at the time as I did not want to escalate it that far. I was worried that Mr Shanahan would react badly and I was apprehensive about the possible consequences. However, my view of the seriousness of what had happened to me changed when I became aware that other students at the university had apparently experienced similar conduct.

PN506

It is evidence of that type that His Honour was entitled to take into account. That here we had a number of students coming forward before this Commission, on affidavit, making themselves available for cross-examination and giving evidence of that type to the Senior Deputy President. From which His Honour was entitled to draw inferences about the nature of the conduct and the effect upon the students and importantly to draw appropriate inferences on this question: Was Mr Shanahan's conduct such as to be inimical to the project at the university, that is the delivery of education for the university? I made that submission before His Honour, but what Mr Shanahan's conduct resulted in at the end of the day was a serious breakdown in the relationship between he as a lecturer and a number of his students. Inimical to the project of the university and on that basis providing a valid reason for terminating his employment.

PN507

Your Honours were then taken again to some more of the evidence of Ms Tsougranis and in particular at page 179 of the respondent's exhibits. Mr Wales made some submissions about abnormal sensitivity of Ms Tsougranis as a person. In particular, in the context of Ms Tsougranis' evidence which appears in paragraph 6 of her affidavit, sworn 11 May 2004. Respondent's bundle, page 179:

PN508

During a class -

PN509

as Ms Tsougranis puts it -

PN510

we studied some Greek terminology. Mr Shanahan said words to the following effect, "Angela is Greek, where is she today, she will probably get me for mispronouncing Greek words."

PN511

Mr Wales submission was after taking your Honours to that passage was that no one of ordinary robustness could possibly take offence to those words being spoken. Well, that's not a complaint that was pressed before His Honour. But if it was pressed, it's not - it would be speculation to say what the evidence would have been about it. How was it said, what was the tone of voice, what was the context. If you simply stood up there and uttered those words deadpan, it would be difficult to see how a person of ordinary robustness would take offence. It doesn't take too much imagination to look at those words and to adopt a posture and a tone of voice and perhaps some gestures that could result in those words being delivered with quite devastating insult.

PN512

COMMISSIONER RAFFAELLI: But the statement of Ms Tsougranis doesn't say that, does it?

PN513

MR MILLER: It does not, indeed.

PN514

COMMISSIONER RAFFAELLI: So we are only left with what she said.

PN515

MR MILLER: Indeed. And it does not command either a submission that it was a matter of insult but neither does it permit it was a submission that it wasn't, that is my submission on that point. It wasn't a complaint pressed before His Honour, so as it were, the jury would still have to be out on that. That part of what Ms Tsougranis had to say in her affidavit really took that incident as a matter of complaint or whether it spoke of Ms Tsougranis being overly sensitive, it really took it nowhere. Certainly, His Honour made a finding, he had the opportunity to see Ms Tsougranis under cross-examination and she was cross-examined at more length than any of the other female complainants.

PN516

In paragraph 7, His Honour refers to that. Her evidence occupied the most time. She was a diffident witness. Deliberate in her answers. His Honour said: I had no doubt of the truthfulness of her evidence nor the genuineness of her response to the conduct complained of. His Honour concludes this way: I cannot agree with the applicant's counsel that her evidence is somehow to be discounted as coming from an oversensitive witness. Ms Tsougranis was here, she subjected herself, exposed herself to cross-examination, His Honour had an opportunity to see her under cross-examination, see her evidence tested and that is the conclusion that His Honour drew.

PN517

To simply take the words of paragraph 6 of the affidavit. They don't lend themselves to the submission, in my respectful submission that Mr Wales sought to advance.

PN518

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, did you say that touching Ms Tsougranis on the upper arm during the course of that piano lesson was - led to improper conduct?

PN519

MR MILLER: Your Honour, the difficulty - can I answer your Honour's question this way and I don't want to seem to be evading it and I certainly won't. I will answer it directly. But if I can first - perhaps the difficulty with answering that question is it has got to be seen in the context and perhaps I can illustrate it this way. On page 457 of the respondent's exhibits in paragraph 39. What I sought to do there in the submission to the Senior Deputy President was to set out the - or what is put in that paragraph. The overall effect as it were, upon Ms Tsougranis of Mr Shanahan's conduct generally of which the touching on the arm was only one element.

PN520

SENIOR DEPUTY PRESIDENT DRAKE: Well, isn't that a submission that it's Ms Tsougranis' perception about Mr Shanahan that might have affected how she perceived that touching. But do you say the touching in itself in the course of the piano lesson is likely - is improper conduct? I mean, it's my experience in life that mostly in piano lessons - piano teachers touch people on the hand and arm.

PN521

MR MILLER: Yes, yes.

PN522

SENIOR DEPUTY PRESIDENT DRAKE: From my recollection, with a ruler usually but that is a long time ago. Given that, what would you say with the other conduct, how is correction of error in a piano lesson likely to be undertaken other than by touching?

PN523

MR MILLER: Well, there are - I think there are two answers to that question.

PN524

SENIOR DEPUTY PRESIDENT DRAKE: I'm mostly - well, is there some other way that it's done? I'm asking you.

PN525

MR MILLER: Well, if I could answer the question this way. In my submission, it was open to His Honour to find that the touching during the piano lesson was not directed towards correction of Ms Tsougranis' technique, given the way she was touched and where she was touched. But more importantly, and what your Honour says may well be the case but at the end of the day was a matter of Ms Tsougranis' perception but the submission made to His Honour on that is set out in page 39 of our submissions at first instance and if I can just read that to your Honour, perhaps it will clarify what the submission before His Honour was.

PN526

What is put is this. In the case of Ms Tsougranis, the effect, that is, your Honour, is the overall effect is more apparent. The complaints made by Ms Tsougranis include: It begins with a lifting and tickling incident which on her evidence left her feeling shocked, humiliated and angered. So that is the opening scenario between Ms Tsougranis and Mr Shanahan. It progresses to a feeling of being singled out because of her ethnicity. Then it moves to her discomfort at being invited to go to Mr Shanahan's house.

PN527

Then to her further discomfort at the prospect of being physically touched by Mr Shanahan during an ensemble class while playing the piano. Such touching on the arm confirmed by Ms Tsougranis in her evidence to be of no efface leading to her, in her evidence, shaking out of fear and close to tears and her worry about unsolicited calls up to ten in number to her mobile and home telephone apparently made from Mr Shanahan's home number.

PN528

In paragraph 41 of our submissions at first instance, this proposition was put. What the evidence discloses is a young woman wanting to pursue her studies, whose trust in Mr Shanahan was broken by the initial assault, the lifting and tickling incident, which as she describes it was a moment of quite extraordinary discomfort for her and who could not thereafter stand to be in his - well, I won't read those words. I will simply put it this way. Who thereafter had difficulty in being in his close physical company. Now, certainly the touching on the arm during the piano lessons, if that was just a one off event, it would probably given rise to no complaint and no difficulty.

PN529

But it is the progression of the interaction between Mr Shanahan and Ms Tsougranis and the university's submission of first instance was, it begins with this highly inappropriate conduct of lifting a student up over his head onto his shoulder, holding her there for a good number of seconds. In some instances - - -

PN530

SENIOR DEPUTY PRESIDENT DRAKE: I think you've answered my questions.

PN531

MR MILLER: Yes, your Honour.

PN532

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN533

MR MILLER: But it is the punitive effect of Mr Shanahan's conduct that the university complains about. Both in respect of all the complainants and in respect of most of the individual complainants. There is - to my recollection there is no one complaint about whom there is only one allegation of one incident. In respect of all of them it's a pattern of conduct. In respect of them taken as a group it's a course of conduct in our submission. Your Honour, your Honours were taken to the evidence of Ms Jifkins. You were taken to page 383. I just want to say something briefly about that.

PN534

Ms Jifkins is one of the lifting and tickling incidents and at page 383 there is a statement made by Ms Jifkins where she sets out her evidence about that incident. But on page 384 - I withdraw that. On page 383 is the affidavit of Ms Jifkins which was read before His Honour. Your Honours, I won't read you through it but there's much more, or there's a good deal as it were to Ms Jifkins' incident. Affidavit, for example in paragraph 5, Mr Shanahan is tickling her, she pulls away and tells him to stop doing it, warns him effectively that she has a particular dislike of that happening.

PN535

That conduct continues. Mr Shanahan then says some things to her and then says to her: take off your glasses and stand up for me. She wasn't sure what he was going to do. Paragraph 8. She stood up. Mr Shanahan very quickly picked me up and threw me over his shoulders and tickled me again. She screamed and giggled in response to the tickling, yelling at Mr Shanahan, words to the effect of: put me down, put me down. Then Mr Hart enters the room. In paragraph 10 of Ms Jifkins' evidence about Mr Hart's reaction: His expression appeared one of shock and disapproval. Mr Hart wasn't impressed with what he had seen.

PN536

5 or 10 seconds later, she is put down. Then in the balance of the affidavit, there is Ms Jifkins' evidence about being smacked on the buttocks with a folder and certain other conduct. Now, your Honours were then taken to Mr Hart's affidavit, or rather you were taken to Mr Hart's evidence and a transcript reference at page 231 of the transcript bundle where in effect, what was put to Mr Hart in cross-examination was that what he saw was boisterous horseplay. A proposition that he accepted. But in Mr Hart's affidavit on page 176 of the respondent's exhibits, in paragraph 6 and paragraph 7, he characterises the conduct this way, that is the lifting of Ms Jifkins:

PN537

I felt at the time that Mr Shanahan's conduct involving such physical contact with Ms Jifkins was inappropriate.

PN538

Paragraph 7:

PN539

When she was lowered to the ground, I observed that Ms Jifkins was flushed in the face and appeared to be upset by the incident. Ms Jifkins quickly left the room after replacing her glasses.

PN540

There's no contradiction between Mr Hart accepting the characterisation of boisterous horseplay but on the other hand, giving the direct evidence that he did in his affidavit, which at the end of the day in my submission on any view of it, is evidence of a physical assault. It's a physical assault, to be sure at the lower end of the scale but it's a physical assault nonetheless. And it's a physical assault of the type that Mr Shanahan inflicted upon a number of students. In the respondent's submissions can I just refer your Honours to this paragraph - I withdraw that.

PN541

In the appellant's submissions before this Court, the proposition is put that in respect of one of these lifting and tickling incidents that really it's not of much moment and the paragraph that I have in mind your Honours, is on page 8, paragraph 26. It's in respect of the evidence of Ms Kett, Alison Kett, whom Mr Shanahan lifted and tickled and held above his head, tickled, refused to let down, against her remonstrations and demands to be let down. And then in paragraph 26 of the appellant's submissions appears this proposition. The event on Ms Kett's evidence was short in duration being 20 seconds or less.

PN542

My respectful submission, that is, it is a surprising proposition, 20 seconds is a long time to be held against your will in front of a group of other people to be tickled and for a man to refuse to release you. Again, your Honours, in my submission on the bare facts of it, what was occurring here with these lifting and tickling incidents were assaults. And the submission put to the Senior Deputy President in respect to these lifting and tickling incidents was, amongst other things was this, that absent his position as a university lecturer, these things could not have occurred.

PN543

It's an exercise of his authority to stand in front of these young women and to say: take your back-pack off, take your glasses off, stand there and now, I'm going to lift you up on my shoulder without telling you, hold you against your will, tickle you and as the students give their evidence, it was very disturbing to them. The evidence of Ms Tsougranis, she was shocked, humiliated and the like. Similar evidence given by all the students who were subjected to this quite extraordinary behaviour.

PN544

Your Honours were taken also to in respect of the lifting and tickling incidents to the evidence of Heather Lupton, whose statement your Honours will find at page - if I've not got it wrong, 285 of the respondent's exhibits. The statement begins at 284 and goes to 285. Now, that's a copy of Ms Lupton's statement in the form that it was provided to the university's misconduct committee. Ms Lupton went on affidavit to the same effect, by and large of the statement. But your Honours were taken by my learned friend, Mr Wales, to this proposition on page 285 in paragraph 2. The sentence beginning: I believe. Which reads:

PN545

I believe that he was talking to other people as he was doing this making a joke out of what he was doing.

PN546

And as I heard my learned friend's submissions, it was along this line that Ms Lupton thought this incident was a bit of a joke. Well, in my respectful submission that can't fairly be taken from Ms Lupton's evidence at all. One has to look to the whole paragraph, which begins this way:

PN547

As I mentioned, last semester I saw something which disturbed me.

PN548

That's how it begins. And she goes on to say this:

PN549

I remember Ian Shanahan was talking to Alison Kett and for no apparent reason, Ian just picked her up and I think he made a comment as to how light she was but Alison was telling him: put me down. It was quite clear that she was serious about being put down. When I say that Ian picked her up, he bent down, put his arms around her knees, or in that vicinity and lifted her. Alison's upper body, I'm pretty sure, stayed erect. Ian did not put her down immediately. I believe that he was talking to other people as he was doing this, making a joke out of what he was doing.

PN550

So evidence isn't that she thought it was a joke, it was that Mr Shanahan was making a joke out of it. And importantly, what was open to His Honour, at first instance, was this proposition. That not only did these assaults occur, but with these students being held against their will over his shoulder and with other students around, Mr Shanahan then proceeded to make a joke out of the whole incident. It's of no assistance to Mr Shanahan in this appeal.

PN551

Can I just say something briefly about submissions that were made about some evidence that came before the Senior Deputy President from Ms Stacker. Now, the only reason there was any evidence put on in respect to Ms Stacker - Ms Stacker made a complaint about Mr Shanahan's conduct to the Misconduct Committee. The University, having made its forensic choices about what case to run before the Senior Deputy President saw no need to call Ms Stacker. The only reason Ms Stacker's evidence came before his Honour was because the applicant below tendered a statement from Ms Stacker, the effect of which was that she didn't really appreciate that her complaint might be used ultimately against Mr Shanahan with the effect that he may lose his employment.

PN552

It does not go any further than that. There's nothing in Ms Stacker's statement that was tendered before his Honour that contradicts the earlier statement that she made to the Misconduct Committee. She recants nothing. In response to Ms Stacker's statement, the University then had to go to the trouble of putting on a statement from Mr Cameron in order to, as it were, set the record straight, from the University's point of view, about the dealings between the University and Ms Stacker. Mr Cameron's affidavit is respondent's exhibit 4. Your Honours find it at page 144 of the respondent's exhibits, and in particular, your Honours, I will take you to that matter just by way of making clear that the proposition put in paragraph 41 of the appellant's submissions before this Court:

PN553

Although Ms Stacker's complaint was found not to have been made out by the Investigating Committee, the respondent apparently intended to rely on it to support its case, notwithstanding that Ms Stacker considered the matters of no particular consequence, and certainly not worthy of dismissal.

PN554

The respondent University, before his Honour, had no intention of calling any evidence from Ms Stacker. It came before his Honour, at first instance, as a result of a statement tendered by the applicant. Can I then, so far as the evidence is concerned, just quickly say something about Mr O'Reilly's evidence, which is found at page 358 of the respondent's bundle. I'm sorry, your Honours, it is at page 288. Again, as I heard my learned friend's submissions about Mr O'Reilly's evidence, what your Honours have at page 288 of the respondent's bundle is one page, ostensibly incomplete - well, it is one page of two or Mr O'Reilly's statement.

PN555

Nowhere there in that document does Mr O'Reilly say words to the effect of - I will just get the words right - that Mr Shanahan's conduct was, in his assessment, tomfoolery - an adjective preferred by my learned friend as a way of describing or characterising Mr Shanahan's conduct. That word "tomfoolery" in that characterisation appears at page 358 of the respondent's exhibits, which is page 11 of the Misconduct Committee's findings, and it is in the second paragraph of that page. In my submission, the only fair reading of the context in which the word "tomfoolery", which appears in quotes, on any fair reading of how that word appears in that part of the Misconduct Committee's report - it is not a characterisation of Mr Shanahan's conduct generally at all.

PN556

It is a characterisation offered by Mr O'Reilly of his interaction with Mr Shanahan, so it certainly doesn't go as far as my learned friend's submissions, and doesn't have that sort of significance, and his Honour wouldn't have given it that sort of significance, and it was open for his Honour not to do that. There were then some detailed submissions made to your Honours about some dissonance, if I could put it that way, on the one hand with the Vice Chancellor of the University and what she understood the outcome of the Misconduct Committee's inquiry to have been, and what the Misconduct Committee understood its task and project to be which came before his Honour in evidence through the evidence of Professor MacCallum, who was a member of the Misconduct Committee.

PN557

As I understood my learned friend's submissions, it was this. On page 368 of the respondent's bundle, what we have is a passage from the Misconduct Committee's report, the paragraph beginning - the second paragraph on the page. It is actually page 21 of the report, "However, we cannot avoid concluding", and my learned friend read the balance of the paragraph so I won't read it back through, but it finishes, "under the guise of spiritual assistance." As I understood the submission made by Mr Wales, it was this. You were taken to some cross-examination of the Vice Chancellor. The proposition was that she had read that, she had taken it seriously, taken it into account, and that there was some mistaken understanding that the Misconduct Committee had, in fact, come to that conclusion, that this was an allegation never put to Mr Shanahan and, therefore, that there's some miscarriage in the process engaged in by the Misconduct Committee and/or the decision made by the Vice Chancellor.

PN558

Now, it is simply not the case that this is an allegation that wasn't put to Mr Shanahan. It most clearly was and it is easy to demonstrate it. The Misconduct Committee's report is dated 10 June, 2003. Your Honours will see that on page 369. Even if it wasn't apparent to Mr Shanahan during the Misconduct Committee's deliberations that there was an allegation of this type being made against him, even if it doesn't appear in the particulars of the allegations and it doesn't - that is conceded - the difficulty with the submission that my learned friend has made is apparent when one turns to page 370 of the respondent's exhibits.

PN559

On 19 June 2003, on page 370, your Honours will see a letter from the University of Western Sydney to Mr Shanahan enclosing a copy of the Misconduct Investigation Committee's report. Mr Shanahan certainly received the report and responded to it, and in that report was included that allegation because if your Honours then turn right back to page 9 of the respondent's exhibits, your Honours will see it is a Memorandum to the Vice Chancellor from Rhonda Hawkins, the University Secretary, the University of Western Sydney, and what Rhonda Hawkins attaches in this Memorandum to the Vice Chancellor is the report of the Misconduct Committee.

PN560

Now, this memo is dated 18 July. On the face of that evidence, it is clear that the Vice Chancellor didn't get the report until after Mr Shanahan had been given it. Included in that report is the allegation. Mr Shanahan was given an opportunity to respond and he did respond because in (ii) under the introductory words in that memo, it is recorded there that Mr Shanahan's response to the report was also provided to the Vice Chancellor. So even if it could be argued - and in my respectful submission it can't be argued because of the nature of the allegations made against Mr Shanahan, the nature of the evidence that came before the Misconduct Committee that an allegation of this type was being made, particularly in respect of, for instance, Ms Spillane.

PN561

If your Honours read through the Misconduct Committee report in detail and the statements provided by the students, I mean clearly that was part of the matrix of allegations being made against Mr Shanahan. Even if that wasn't understood by the appellant at that stage, then it was given to him in writing some weeks before. The Vice Chancellor was given the report along with his response to it. So in my respectful submission, it was open to his Honour to find there was no miscarriage at the Misconduct Committee stage but even if there had been, there could be no miscarriage at the point at which the Vice Chancellor considered it because Mr Shanahan had it before him, had an opportunity to respond, and did respond.

PN562

The other important thing that his Honour took into account when considering how the Vice Chancellor made her decision at the end of the day was simply this. What the Vice Chancellor did was that she didn't focus on any one part of the Misconduct Committee report and say: bang, that's it, you're out, you're terminated. She read the thing and considered it in its totality. The important findings made by his Honour in paragraph 12 of his Honour's reasoning, at bullet point 21, was - his Honour sets out these propositions and footnotes them:

PN563

Following the remaining steps in the agreement process, the report and the applicant's response came to the Vice Chancellor, Professor Reid, on 18 July 2003 for a decision. Professor Reid gave evidence that she considered both. Indeed, in her letter of 24 July 2003, responds to several points the applicant raised in his letter. She formed her own view of whether there had been serious misconduct and decided there had.

PN564

Certainly, the Vice Chancellor was cross-examined and tested on her evidence but during the course of that cross-examination, she made it clear and, just for completeness, if I could just give your Honours this reference. On page 137 of the transcript bundle, the paragraph reference is 1691, under cross-examination from Mr Wales, the Vice Chancellor was asked this question:

PN565

Nonetheless, you relied strongly on the paragraph -

PN566

and it is the paragraph in contention -

PN567

which includes those words in forming the view that what had happened in Mr Shanahan's case was serious sexual misconduct?---I have to make it clear here that I made - well, the Committee made and I made a global judgment about the total set of behaviours, not about one particular isolated behaviour, so I'm looking at the totality of what is alleged.

PN568

That is the Vice Chancellor's evidence. She looked at it in the round. She didn't focus on any one point in particular.

PN569

COMMISSIONER RAFFAELLI: Mr Miller, a number of matters or one matter. In the dismissal letter, which is page 11 of the big bundle, I take it that the reason for dismissal is set out there, and that is that:

PN570

The University finds you guilt of serious misconduct in that your behaviour is of a kind which constitutes a serious impediment...

PN571

Etcetera:

PN572

You have breached your duty of good faith and fidelity to the University...

PN573

And a dereliction of duties as an academic staff member. It is all set out there.

PN574

MR MILLER: Yes, your Honour.

PN575

COMMISSIONER RAFFAELLI: Now, what I want to know is when was that, as the reason, put to the applicant? I mean, that is the misconduct, isn't it?

PN576

MR MILLER: The "serious misconduct" is the operative - - -

PN577

COMMISSIONER RAFFAELLI: Where is it? Yes, and presumably the "serious misconduct" is that defined there?

PN578

MR MILLER: Yes, your Honour.

PN579

COMMISSIONER RAFFAELLI: I want to know where that was ever put to the applicant.

PN580

MR MILLER: What was put to the applicant, your Honour, if I can answer your question this way is that there are a number of particulars, as it were, setting out an agenda that the University believed that it had to investigate as a result of the receipt of complaints from a number of students. It was put some months before the Misconduct Committee convened that the University took the view that this conduct could constitute serious misconduct, such that it would justify termination of his employment. I don't, with respect, your Honour, see that in that paragraph in the Vice Chancellor's letter of 24 July 2003, the Vice Chancellor to be saying anything more than this - that the University has found his guilty of serious misconduct, that is behaviour of a kind that constitutes a serious impediment to the carrying out of an academic staff member's duties, and serious dereliction of duties carried out by an academic staff member. That is a rather formal way of, as it were, summarising the allegations that were put in more specific form.

PN581

COMMISSIONER RAFFAELLI: But those allegations, which the Committee investigated to see whether, in fact, were proven - that is, were they facts - they could add up to a whole range of things. We've heard a lot about the words "sexual harassment" so they could have added up - someone looking at it could think: the facts have been proven and therefore, sexual harassment has been found, or the facts have been proven and there's been a breach of one of many provisions in the University's Code of Conduct, the enterprise agreement, or something else.

PN582

My only concern is that section 170CG(3) says that we need to consider or have regard to whether the employee was given an opportunity to respond to any reason related to the conduct of the employee. Now, how is the applicant to know what is the conduct that he has to respond to? I mean, it is not clear to me. You see, everything has to be referable to the reason for the dismissal. An act itself - smoking means nothing but smoking in an environment where there's a policy against smoking is a different thing, so I took it that all the Committee was doing was investigating whether he had thrown young students on his shoulders - - -

PN583

MR MILLER: Correct.

PN584

COMMISSIONER RAFFAELLI: - - - whether he had run them up. Well, that is all very nice. That has been proven, at least to the satisfaction of the Committee and more importantly, to the Vice Chancellor but I just have a great - there seems to be a massive leap from facts to all of a sudden, he is facing dismissal for the misconduct that is set out there. I don't see it appearing in anything before that.

PN585

MR MILLER: Your Honour, on the first page of the letter that your Honour has referred to, it begins on page 10 of the respondent's exhibits, it begins this way:

PN586

Dear Mr Shanahan, the University Secretary has referred documentation to me relating to allegations articulated in our letter dated 17 February, 2003 that may constitute serious misconduct or in the alternative, misconduct by you.

PN587

In that letter, what was set out were the particulars of the matters that the Misconduct Committee then was engaged to investigate and report to the University Vice Chancellor upon. The leap, as your Honour describes it, from the empirical findings, as it were, and the reporting of the Committee to the determination that Mr Shanahan's employment ought to be brought to an end is where the mind of the Vice Chancellor is engaged. Under the enterprise agreement, it is the Vice Chancellor and the Vice Chancellor only that can make, as it were, that executive management decision.

PN588

That is why the Vice Chancellor came before his Honour at first instance and gave evidence of she deliberated upon the material available to her, and how it was she arrived, at the end of the day, at the conclusion that his conduct as factually found by the Misconduct Committee rose to the level of such misconduct or serious misconduct as justified the University in terminating him. That is the process that was engaged.

PN589

COMMISSIONER RAFFAELLI: Well, that might be process, but the Act requires the employees to be given opportunities to respond for reasons that might go their dismissal.

PN590

MR MILLER: Indeed.

PN591

COMMISSIONER RAFFAELLI: I'm not particularly interested in what the University of Western Sydney thinks of the situation but the Act is pretty clear, isn't it?

PN592

MR MILLER: It is indeed, your Honour, and in the submissions filed for the respondent, beginning on page 8 under the heading: The Complaint About Procedural Unfairness - - -

PN593

COMMISSIONER RAFFAELLI: This is the more recent one?

PN594

MR MILLER: Yes, filed in this appeal, what I've sought to do there under that heading is to deal with that very point. Now, your Honours will see at paragraph 18 on page 8, it sets out the requirements in the subparagraphs to that section, in section 170CG(3), beginning with CG(3)(b), and that is that the employee has to be notified of the reason for termination. Now, rather than take your Honours through all of this and its detail, can I just summarise the submissions made in that part of those submissions this way? In paragraph 21, you will see that what I've set out is the evidence that his Honour relied upon to confirm the steps that were taken to inform and to warn Mr Shanahan that his conduct could lead to his dismissal.

PN595

His Honour sets that evidence out in paragraph 12 against the bullet points (13), (15), (16), (17), (18), (27) and (30). So by reference to that part of his Honour's reasons, it is clear, in my respectful submission, that his Honour directly addressed that question. Was Mr Shanahan informed of the reasons that the University had in mind that could lead to his dismissal? I could - - -

PN596

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, it might be of assistance if I - well, it is clear to me that what Commissioner Raffaelli is asking you is that the obligation is for the applicant to be advised and informed, and that arises in this case when the decision-maker draws conclusions. Now, the Committee is not the decision-maker. In this case, the decision-maker was the Vice Chancellor. The Vice Chancellor had material that she considered, and then she wrote the letter. Where, between reaching that decision and drawing her conclusions based on the material that she had, and advising the applicant, did she give the applicant notification and an opportunity to respond?

PN597

MR MILLER: On page 370 of the respondent's exhibits is the letter of 19 June 2003 from the University Secretary, Rhonda Hawkins. That is the letter that encloses the copy of the report.

PN598

SENIOR DEPUTY PRESIDENT DRAKE: Yes. We have a chronological problem here. We have the report. A copy of that is given to the applicant. It goes to the Vice Chancellor. The Vice Chancellor considers the report. The Vice Chancellor forms some conclusions. She is the decision-maker, is she not?

PN599

MR MILLER: She is.

PN600

SENIOR DEPUTY PRESIDENT DRAKE: Where does the Vice Chancellor, having formed the views which, if she confirms them in a decision will lead to the termination of the applicant's employment, where does the Vice Chancellor give the applicant the opportunity? I have drawn the conclusion or I might draw the conclusion from this material that the findings of the Committee are A, B, and C and as a result of findings A, B, and C, I might conclude or I have concluded that you might be guilty of D, E, and F.

PN601

MR MILLER: Yes, your Honour.

PN602

SENIOR DEPUTY PRESIDENT DRAKE: As a result of that, your employment might be terminated. Where is that opportunity? It is not the opportunity provided by the Committee. The Committee is simply a tool in this process. Where is the opportunity provided by the Vice Chancellor, who is the decision-maker? ..... articulate that.

PN603

MR MILLER: Yes. The Committee is engaged in order to carry out an investigation - - -

PN604

SENIOR DEPUTY PRESIDENT DRAKE: To find some facts. It is a fact finder, is it not?

PN605

MR MILLER: To provide the Vice Chancellor with the information that she needs in order to make a decision, so the chronological chain, as it were, goes this way in my submission. There is the letter of 17 February 2003, which is at page 209 of the respondent's exhibits, that is a letter to Mr Shanahan from, again, the director of human resources at the University. It notes that:

PN606

The University is in receipt of a report by a Mr Stecenko, an investigations officer, covering an investigation and complaints lodged by a number of students.

PN607

It then goes on to say in paragraph 2:

PN608

Concern that the allegations articulated in the attachment to this letter may constitute serious misconduct, or in the alternative, misconduct by you.

PN609

Then there is reference to the enterprise agreement setting out what the process will be - there are two alternatives and what happened at the end of the day was the Misconduct Committee was convened. At the foot of that page:

PN610

Noting the seriousness of the allegations made.

PN611

There is that letter and then from pages 212 through to - just bear with me for a moment - through to page 217, are the particulars that were set out - the particulars rather are set out, which particulars were, as it were, provided the agenda for the Misconduct Committee to begin its inquiry. I'm sorry, your Honour. Your Honours, I can't conveniently put my hand to a letter and I have to - - -

PN612

SENIOR DEPUTY PRESIDENT DRAKE: Yes.

PN613

MR MILLER: I can't put my hand at the moment on a document that says: in terms, here are the allegations made against you. Here is the process that we propose to follow. If at the end of the day these allegations are made out it may result in your dismissal. I cannot put my hand on a document of that type.

PN614

SENIOR DEPUTY PRESIDENT DRAKE: Mr Miller, that isn't in fact what I was asking you. We seem to be at cross-purposes. It is a very discrete area.

PN615

MR MILLER: Yes, your Honour.

PN616

SENIOR DEPUTY PRESIDENT DRAKE: The Committee is given a job to do, to find some facts - Committee, find some facts, that is what you say, I think that is common ground here.

PN617

MR MILLER: Yes.

PN618

SENIOR DEPUTY PRESIDENT DRAKE: Factual findings go to the Chancellor - there is some disagreement about what they are, right? They go to her, she thinks about them, she forms a view. The view she has formed is that some conduct has occurred which gives rise to the possibility of termination of employment and she forms the view that termination of employment is in her opinion what should arise out of those facts as she sees them.

PN619

Having reached that position where is it that she gives, or does she not, give an opportunity to the applicant to respond to the reasons about which she has drawn a conclusion, or to hear factors from the applicant that might ameliorate her view as to the remedy that arises there, or the outcome that arises there. Is there anything in there? If the answer is that there is not, there is not.

PN620

MR MILLER: The short answer to your Honour's question is, there is not.

PN621

SENIOR DEPUTY PRESIDENT DRAKE: There is not.

PN622

MR MILLER: But allied to that, there is a submission that I would make and rely upon, amongst other authorities - Crozier v Pollazo, that what is required is that the employee be notified of the reason for dismissal. Mr Shanahan was notified of the reasons ultimately that the University relied upon for his dismissal. The second submission that seems germane to make at this point is that even if there was some minor deficiency in the process engaged by the University, at the end of the day, that would not vitiate the process, again on the authority of Crozier v Pollazo (2000) 98 IR. It certainly was open to his Honour in my submission to make the finding that he did and that the process followed by the University was followed competently.

PN623

SENIOR DEPUTY PRESIDENT DRAKE: All right. The reason I asked you that question was that it seemed to have stuck back on the Committee - - -

PN624

MR MILLER: That is the short answer to your Honour's question.

PN625

SENIOR DEPUTY PRESIDENT DRAKE: But in any event it seems clear that the Chancellor didn't take into account that those factors that the applicant now says on appeal ought to have been taken into account, that would have been in the process, the time, the place at which those matters ought to have been considered, is that not the case?

PN626

MR MILLER: Yes, your Honour.

PN627

SENIOR DEPUTY PRESIDENT DRAKE: How much longer do you intend to be?

PN628

MR MILLER: About 3 minutes.

PN629

SENIOR DEPUTY PRESIDENT DRAKE: Right.

PN630

MR MILLER: Because I don't intend to read the submissions that we filed.

PN631

SENIOR DEPUTY PRESIDENT DRAKE: I was just going to - because I intend to finish this matter today, I'm sure that is the view of the bench - - -

PN632

MR MILLER: Yes, certainly.

PN633

SENIOR DEPUTY PRESIDENT DRAKE: - - - but if you wanted a break, or if you had to make a phone call to Chambers I was going to give you the opportunity.

PN634

MR WALES: I don't - thank you, your Honour - can I say I will be about 10 minutes in reply, if that is convenient.

PN635

SENIOR DEPUTY PRESIDENT DRAKE: Well, in that case we will continue then. Yes.

PN636

MR MILLER: Your Honours, I think I've said all that I need to say about the evidence. Can I then just say something about the submissions that we filed, and I will be brief. We rely upon those written submissions, that is the first thing that I would say and, secondly, can I just summarise this way, that what your Honour will see under the heading: A - and it is pages 1 through to 4 up to paragraph 8 - essentially, the contention is this, that when this matter came into this Commission the task then for the University was to prove the misconduct that it said it relied upon, that was proved afresh before his Honour. There was sufficient evidence before the Senior Deputy President to find that the University had a valid reason and in that sense the appellant's complaints, firstly, which I've sought to address under the heading, B, beginning on page 4, paragraphs 9 through to paragraph 16 - for example:

PN637

There were some witnesses called at the Misconduct Committee stage that the University didn't call before his Honour.

PN638

In my submission, of no moment. We had to prove our case afresh before the Senior Deputy President and the University did that. The complaint about procedural fairness again, no one could seriously contend that procedural fairness from an employer to an employee in a situation like this is not an important matter, it is but, again, I've set out - or sought to seek out in those paragraphs through to paragraph 22 why it was open to his Honour to make the finding that he did and, that is, paragraph 22, sub (d), that:

PN639

The process set out in the enterprise agreement was followed and followed competently.

PN640

In paragraph D, beginning on page 4, from paragraph 23 through to paragraph 32, what I've endeavoured to set out was the evidence and refer to those parts of his Honour's reasons where he expressly refers to the evidence that he relied upon in order to make the key finding that he does at the end of the day. Applying, not only the fair go all round test, but also asking himself this question, which his Honour clearly did, whether the University had a sound defensible, or well founded reason and a valid reason for terminating Mr Shanahan's employment? So it was open to his Honour to find out whether or not there was an express finding that sexual misconduct of any particular type was engaged in.

PN641

What his Honour attended to was the overall pattern of Mr Shanahan's conduct during this period in 2002. His Honour was entitled to find that it was - although he does not make an express finding - but he was entitled to find that it was inimical to the employment responsibilities of Mr Shanahan, particularly the position of trust Mr Shanahan occupied as a University lecturer. At the end of the day, in my respectful submission, none of the findings made by the Senior Deputy President disclose any appealable error, in fact, having regard to all of the evidence, the submissions made, the opportunity to see the witnesses under cross-examination, his Honour's reasons in his ultimate decision was unexceptional. Those are my submissions, your Honours.

PN642

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN643

MR WALES: Thank you, your Honours, I will only be about 10 minutes in reply. At the beginning of his submissions my learned friend recalled the dichotomy which I put to this Full Bench at the beginning of my submissions which was on the hand sexual misconduct, on the other hand ill-advised misplay. He says that wasn't given at his case. I accept that. What I was putting to the Full Bench was in a very summary way the problem for determination by this Full Bench. If you were satisfied that the appellant was a sexual predator, and that that had been the university's case that had been made out, he would, I accept without reservation, accept that his termination was valid.

PN644

It appears to be common ground now that that wasn't the university's case. In fact, my friend seems to have said in his submissions you don't need to worry about that. You just need to worry about the question that the conduct was impermissible and leave it at that. That is simply not correct, because crucial to the question of the proper way of dealing with the misconduct is the issue of what motivates it, because if you come to the view that it was, as many witnesses described it, boisterous horseplay, Tom foolery, whatever, then you would, especially when you take into account the evidence of Dr Teoh, conclude that in all likelihood the issue of rebuke, warning, counselling, touch conditions, would solve the problem.

PN645

That is why the issue is an important one. My learned friend didn't make this point, but it is not disputed that the conduct of the appellant was inappropriate. It is not disputed that he should have been rebuked for it. It is not disputed that a warning would have been inappropriate. Perhaps, the principal reason why the conduct is inappropriate, is that it gives rise to embarrassment and awkwardness and misunderstanding. Say, for example, despite the finding below that Ms Tsougranis wasn't particularly lacking in robustness, clearly she was, and the evidence of her shaking at this piano rehearsal indicates that she was. My friend is no doubt right when he says that she was probably sensitised to what happened before by what happened before, so she responded in a way that was unusual to being touched on the arm four times.

PN646

Conduct of the kind which the appellant engaged in is clearly inappropriate because it fails to recognise the proper boundaries between staff and student, and it gives rise to awkwardness and embarrassment on the part of students. Let us accept all of that, but the issue is, do you need to dismiss the appellant without any chance of repentance, any chance of following the medication regime that Dr Teoh prescribed. The reason why no such chance was given is that Professor Reid profoundly misunderstood the effect of what the committee had written. I will come back to that point fairly briefly in a moment.

PN647

The next point my friend made was in relation to Professors Boyd and Evans. It remains unclear, precisely why the respondent supports the way in which the Senior Deputy President expressed his approach to those two character referees, but it was ultimately accepted by my friend that the evidence so far as it went was unchallenged. So that you are entitled to treat those unchallenged. They are views of the appellant, and all the inferences that properly flow from those views, and you will take into account the serious consequences of dismissal in relation to the question of whether the dismissal was harsh or unjust.

PN648

The next point my friend made was that there was no evidence linking that the appellant's disorder and the events which occurred. That is not, with respect, entirely correct. If you go to, for example, the appellant's exhibit bundle at page 7, you will recall the proposition was that there was no evidence to link the conduct with the absence of medication. Paragraph 7 is the appellant's own statement. He says at 4.5:

PN649

As far as I recall I took my medication during 2002, however, the behaviour described by the students appears to be decidedly manic, which is true, which suggests that I had not on some occasions taken my tablet. For example, if I came in the morning without breakfast it is possible I might not have taken my medication.

PN650

4.9:

PN651

I can only assume that if the allegations are correct they were the product of some medical dysfunction.

PN652

Further, at paragraph 1909, transcript 157, he made this very valid point. Question paragraph 1909:

PN653

You knew full well in 2002 that you were going through a period of emotional instability, did you not? Answer: No, I didn't by the very fact it's the catch 22. Does somebody know they're crazy. The answer is no, I was not aware of difficulties at the time. Had I been aware of the sort difficulties at the time I would have gone to see the doctor.

PN654

How does one conclude from the evidence of the appellant about his recollection of taking the medication. That is the fact, as opposed to the effect of not taking the medication. The evidence of Dr Teoh remains unchallenged, which is that on a proper interpretation, in all likelihood - I'm sorry. Dr Teoh said that the events which occurred are entirely consistent with this inhibition caused by the appellant not taking medication, and acting in the hypo-manic phase of his bipolar disorder. He was also curious for the respondent to submit that you couldn't conclude that the Palm Beach placard was irrelevant because Dr Teoh didn't refer to it. He wasn't asked to. Dr Teoh gave a report which describes the conduct of the appellant at his workplace as being due to is bipolar disorder.

PN655

The respondent in their case, having subpoenaed the police records tendered them. Dr Teoh was never part of the respondent's case until it was tendered in evidence in the course of the Tribunal proceedings. Dr Teoh never had the occasion to comment on the connection between the two events, but the connection between the two is a matter of logic. If my friend wanted to content that there was no such dementia, he's the one we submit ought to have called Dr Teoh to put that proposition to him. So far as Ms Spillane is concerned, the proposition that some impropriety occurred in the course of the Palm Beach outing, or by inviting Ms Spillane on that outing, was never one that formed properly part of the university's case.

PN656

If one goes - you need not go to it, because it is there in black and white - if you go to the committee report where it sets out the particulars of the allegations at page 350, you will see that all that is complained of against him is the conduct involved in telephoning after the outing at Palm Beach. There is no suggestion whatever that the Palm Beach outing in itself was an occasion of misconduct. The appellant, by the way, wasn't marking any papers of Ms Spillane. He was assisting her with, or proof reading her thesis for which some other staff member was responsible. No question of marking papers arose.

PN657

Even Professor Reid accepted that these events had no connection with the university's complaint. She accepted if one goes to the transcript at 127 - I will quickly read the reference to you - page 127, paragraph 1588:

PN658

You are aware that what proceeded those telephone calls was an outing by the two of them to Palm Beach. Do you know that? Answer: Yes. About which no complaint was made by the university? Correct, yes, I believe that to be correct.

PN659

Secondly, Professor Reid accepted in portions to which you were taken before that there was absolutely no prohibition in the university's codes of conduct to all known sexual affairs between a staff member and a student. Part of this is maybe invited as favouritism, but provided there was consent, there was no prohibition on such a relationship. The proposition being put by my friend appears to be well, a full blown affair is not a breach of the university's codes, but everything which precedes it is. That is to say, the invitation out, the offer of a drink, the invitation to the pictures. All of those sorts of things are inappropriate. They are a breach of the university's codes.

PN660

When you get to, as it were, the culmination, the full-blown affair, that's okay, it is a matter of consent. That cannot be correct and despite what my friend says about having made submissions which I accept that he did, it was never properly part of the university's case, and certainly no one, I suggest in the university ever thought that it was. I won't respond to every point that my friend made because they are dealt with either in our oral argument or in the line of argument but I will, if I may, conclude with this important issue.

PN661

The Members of the bench correctly raised for consideration this issue that the decision maker herself gave no chance to the appellant to give consideration to the matters that were of concern to her. It is not, by the way, we say to the point to say: well, even if, based on the evidence to which the Tribunal has been taken, Professor MacCallum says there wasn't a finding of fact and the Vice Chancellor says that there was and she relied upon it. Even though my friend didn't take you to - having taken you to paragraph 1691 of the transcript where Professor Reid says: she made a global judgment.

PN662

He didn't take you to the portion that said: you think I agreed before but you have regarded what you took to be the finding in that paragraph as a matter of importance? The answer: yes - in making decision - yes. Do you want to change that evidence? Answer: no. That is to say that she accepted that she had relied upon that paragraph as a matter of importance and it is to rub salt into the wound rather than to cure the problem to say: well, it was all the global assessment. Somehow that makes good the important defect we have identified, but even more importantly, it is apparent from Professor Reid's evidence that despite the finding by Senior Deputy President she formed her own assessment, despite that finding she in fact did not regard herself as making any independent factual assessment.

PN663

So for example, at transcript 128, this is page 128 - this is to do with the phone calls, the innocuous phone calls between the appellant and Ms Spillane. She has asked about paragraph 1594 at page 128. It is put to her that there is nothing in the telephone calls that involves serious sexual harassment. Answer: I have to assume these questions have been asked by a committee that has been formed to make a judgment in the totality and I wouldn't second guess the committee on something like that. The particulars of the charge were that you made unwelcome phone calls, correct? Yes. You would have to know a lot more would you not before you formed a view that this was an occasion of serious sexual harassment? Answer: I assumed the committee did know a lot more.

PN664

The question is put again after an objection. You would have to know an awful lot more before you formed a view as to whether the telephone calls were without law, were serious sexual harassment. Answer: if I was independently assessing the evidence, yes I would. Now, we ask the Full Bench: doesn't that rather suggest that Professor Reid thought that it was not part of her task to assess the evidence independently. She formed the view - she said this in her own words - that what the committee found was: serious sexual harassment. That necessarily involves the proposition that there was a sexual motivation in the conduct of the appellant.

PN665

That was it now appears to be conceded by my friend, not necessarily part of the university's case both before the committee, below before the Deputy President and before you. Well, that was not what Professor Reid thought and it was not upon that footing that she made the decision which she regarded as utterly clear cut to terminate the services of the appellant. Now, the final point I want to make about - I'm sorry it is a point just not worth pursuing. Those are my submissions in reply, may it please the members of the Full Bench.

PN666

SENIOR DEPUTY PRESIDENT DRAKE: I reserve our decision. The Commission is adjourned.

ADJOURNED INDEFINITELY [4.30pm]