ADMINISTRATIVE DECISIONS TRIBUNAL

Level 15, 111 Elizabeth Street, Sydney NSW 2000

Tel: (02) 9223 4677 Fax: (02) 9233 3283 Freecall: 1800 060 410
DX 1523 SYDNEY

RESPONSE TO STATEMENT OF EVIDENCE BY

ELISA STATHIS
&
RESPONSE TO SUBMISSION BY
I V KNIGHT

Court: Administrative Decisions Tribunal

File No: 073361

Division: General

Applicant: Jolanda & Peter Challita

Respondent: NSW Department of Education

Background

1. On 11 July 2007 an FOI Application was lodged by the Applicants. The FOI
application was in two parts and sought documents and evidence relating to the
process used to reach the decision to deem the applicant Jolanda Challita
vexatious, as had been presented by the Department of Education (DET) as shown
in documents produced under FOI, and documents seeking evidence of the formal
investigations said to have been undertaken by the DET in relation to the
Applicants formal complaints of bias, misconduct and manipulation and
tampering of state records against officers of the Selective School Unit spanning
7/8 years. This FOI Application was acknowledged as received by the DET by
letter dated 30 July 2007 – FOI-07-231.

2. By letter dated 31st July 2007 the DET requested that the FOI Application be
amended to limit its scope or they would refuse the application for access to
documents on the basis of Section 25(1)(a1).

4. On 7 August 2007 the Applicants wrote to the DET outlining in more detail the
information/documents requested and limiting the scope of the application so as
to comply with the DET’s requirements.

5. In early October 2007 as no documents had been received and no contact had
been made by the DET, enquiries where made as to the situation with the FOI
documents. On 11 October 2007 we received a letter from Suzanne Bilbe-Taylor
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 of the FOI unit stating that they were waiting for one more document that was an
RML and that the holder was on leave and that documents would be provided as
soon as they returned.

6. We received documents by way of a disc on 23 October 2007. These 59

documents consisted of two emails relating to the vexatious part of our FOI
application with one Submission and draft response prepared for the Minister for
Education Mr. Refshauge by the Selective Schools unit in response to
representations made by Mr. John Brogden MP . The rest of the documents were
just a copy of the letter forwarded by us to the DET dated 7 August, mentioned
above, together with a copy of all the annexure attached to that letter.

7. On the 24th October 2007 an email was sent to Suzanne Bilbe Taylor by the
Applicants to inform her that the documents produced didn’t deal at all with the
second part of the FOI application relating to the handling of the complaints and
asked for her to respond – see attached and marked Annexure ‘A’. Our email
was not responded to.

8. On 30 October 2007 in the absence of any contact by the DET we filed a request
for an internal review.

9. On 3 December 2007 after not having heard anything from the DET we referred
the matter to the Administration Decisions Tribunal stating the reason for seeking
the review was the failure of the DET to respond to the internal review to be
deemed a refusal.

10. A planning meeting was listed for 29 January 2008 at that time the Judiciary
Member remitted the matter back to the Department for it to determine afresh.
The matter was listed again on 11 March and then adjourned to 3 April 2008. On
the 3rd April the Judiciary member set dates for submissions to be filed and
indicated that the matter would then be determined on the papers. By this stage 9
months have passed since the FOI application was lodged despite us doing
everything asked of us so as to comply.

11. The DET requested in May 2008 that we agree to private Mediation in order to
address all issues and to reach a resolution in relation to the four matters before
the ADT and settle all disputes and grievances with the DET by way of
settlement. We agreed to go to mediation and the matter was listed for mediation
on 14 August 2008. However when the DET forwarded their position papers on 1
August 2008 the DET’s position papers did not include, or deal with all the
applications before the ADT, or the issue with the investigation or our family’s
formal complaints or the allegations made by our family. The position papers
presented by the DET only referred to two applications and these applications
were in relation to documents from ACER and access to the test papers. The
whole process of going to mediation was another delay tactic and a ploy to then
present us as unreasonable and even after money and vexatious. We have
presented to the DET in writing that we regard the mediation as unfair and
invalid. The only thing that came out of the process was further delay, stress,
expense and a $12,000.00 bill sent to us by our Solicitors. Once again the DET’s

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 failure to be upfront and honest and to do the right thing has cost us financially as
well as emotionally, socially and psychologically.

Jucial consideration of s.25(1)(a1)

12. The respondent claims that it is a Substantial and unreasonable diversion of

resources within s25(1)(a1) of the FOI Act. The Applicant responds as follows:

b) The process of determining whether the documents relate to the

complaints should not be to difficult as record keeping practices required to be
exercised by employees of the Department of Education clearly states that All
schools, TAFE Institutions and AMES Centres, state offices and other DET work
sites are to maintain a complaints register or files. The information that should
be recorded includes:

 Date received
 Complainant details

 Date of acknowledgment

 Details of assessment

 Decision with reasons

 Date of the outcome advice to all parties.

c) The Responding to Suggestions and complaints policy under which

complaints were made by the Applicants and that were applicable at the time also
clearly state that the procedure in dealing with complaints is as follows:

“The negotiation procedure is only applicable in cases other than alleged

serious breach of legislation, policy, procedure or contract.

Investigation procedure applies to Complaints or Allegations that

individuals have committed a serious breach of legislation, policy,
procedure or contract. Investigation procedure also applies to
Complaints or allegations about corrupt conduct, maladministration or
serious and substantial waste that are not
protected disclosures.

Investigation Procedure:

This procedure outlines the steps for a competent and fair investigation. It
requires the assignment of an investigator who reports back to the
delegate.

The investigator collects evidence, conducts interviews as necessary and

presents the evidence for and against a particular conclusion. The

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 investigator must draw a conclusion and, if appropriate, make
recommendations for further action”.

13. In the official Department of Education’s website

https://www.det.nsw.edu.au/aboutus/epac/relatedissues/records/index.htm on the
page titled “Records”, see attached and marked Annexure “B”, it clearly states
the following:

(a) “The more serious the issue, the higher standard of record keeping will be
required. These records may be called for external review.

14. In the Department of Educations website under “False and Malicious

Complaints”, see attached and marked with Annexure “C”, it states the following:

(a) “Care should be taken in instances of a complainant who has previously

made a complaint that was found to be false. No assumption should be made that
the new allegation must also be false”.

15. In this matter allegations are being made of systematic bias, bullying,
victimization, bullying, manipulation of state records and misconduct and a
conspiracy to cover up involving our 4 children and spanning 8 years. As the
DET have used the ‘so called’ investigation of the original complaints as a reason
to not acknowledge or accept new allegations made in subsequent years it is
imperative that the DET be required to provide evidence of their investigations as
the welfare and wellbeing of children is involved.

16. It should never be referred to as an unreasonable diversion of resources to provide

evidence in relation to a matter that is a child protection issue as the welfare and
wellbeing of children should always be of paramount concern. Failure to provide
evidence of the investigation would mean that the Department of Education is
failing in their duty of care to protect the children.

17. We believe that the fact that this is a serious public interest matter should be a
factor in determining this matter. Integrity, impartiality and due process in
relation to matters to do with children and education are of utmost concern.

In response to whether s25(1)(a1) was correctly invoked in relation to this

application we reply as follows:

a) Terms of the request

18. A previous FOI request was made on 12 June 2004 (FOI-04-121 as attached to
Statement by Elissa Stathis. This FOI application sought documents pertaining to
the investigation of the complaints, amongst other things. This FOI application
was refused by the DET on the basis that the DET indicated that they had
previously produced the documents. This is despite the fact that the DET had not
provided any documents in relation to the complaints and had not honoured the
agreements that they had made at the ADT on 18 August 2003 to produce the
documents.

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19. The FOI Application lodged in 2007, the subject of this application, again sought
evidence of the investigation of all complaints made by the Applicants on behalf
of our children from the year 2002 to date amongst other things – copy
application attached and marked with Annexure “D”. At the request of the DET
we limited the FOI request to eight formal complaints that we lodged in
accordance with the Responding to Suggestions and complaints policy. This
policy requires that complaints be dealt with and filed in a certain order and
manner. The records should be easily accessible as per the State Record Keeping
Act.

b) Importance of the document or documents to the applicant.

20. Original FOI applications have been made in relation to different matters
pertaining to our 4 children over different years. The fact that 18/19 FOI
applications have had to be lodged is a direct result of the DET’s failure to afford
us procedural fairness and natural justice. Due to delay tactics, obfuscation and
malfeasance many FOI applications have been required to be filed twice seeking
the exact same documents requested in previous applications. Applications that
were delayed, closed and/or treated with contempt and ignored.

21. The complaints of bias and misconduct include allegations of manipulation and
destruction of state records evidenced in documents produced under FOI as well
allegations of a conspiracy to cover up.

22. The records are extremely important to the Applicant to shed some light on the
matter with regard to the process undertaken by the DET.

Access to Departmental records which have already been granted

23. Whilst the DET have provided some documents in relation the applications they
have not complied with the requirements under FOI.

24. In the statement of evidence by Elissa Stathis she states that on 27 August 2003,
that the applicant was given an opportunity to view the test papers relevant to
Danny & Katie’s opportunity Class and Selective High School applications
including an electronic print out of the answers together with the answer key.

25. What Elissa Stathis failed to mention in her statement was that the viewing was
deemed unsuccessful as those present on behalf of the DET bullied, harassed and
intimidated the children and the applicant Jolanda until we left in tears. It was
agreed that this viewing should be re-arranged. This viewing is yet to take place.
It is also a fact that electronic print out of the answer sheets needed to be provided
because the DET destroyed the original answer sheets that had been specifically
requested to be set aside under FOI so as to verify the marks. It is also a fact that
the DET said that the electronic answer sheets that were provided for the viewing
were sent direct from Acer in Victoria, as they are the company who marks the
tests, when in fact the print out of the answers had been printed from the DET’s
computer system.

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26. The DET have not provided any documents in relation to the investigation of our
families complaints so I cannot see how the Department can say that documents
previously released would be processed twice?

27. In November/December 2003 the Minister for Education was provided with a
submission by the Selective Schools Unit in response to representations made by
Mr. Brogden MP. This submission had attached to it a draft letter for the
Minister to sign that stated, amongst other things that enquiries had been
completed and the matter closed. This is despite the fact that no investigation had
taken place despite formal allegations being made and the DET had not honoured
the agreements that they made at the ADT on 18 August 2003. The Minister did
not decide anything himself as stated in Elissas statement, he was presented with a
draft letter which he signed and the submission that was presented to support that
letter was filled with misrepresentations and lies

c) Manageability of the request having regard to the size of the agency and the
extent of its resources usually available for dealing with FOI.

18. The DET is a large agency. In it’s website it states in relation to FOI the
following:

28. (a) “The Freedom of Information (FOI) Act, 1989, gives the public the right
of access to documents held by most government agencies including the NSW
Department of Education and Training. You are also able to ensure that records
held by the Government concerning your personal affairs are not incomplete,
incorrect, out of date or misleading.”

29. It is clear that the DET’s is aware of the obligations under FOI.

30. In July 2004 we sent a letter to Mr. Murn clearly outlining our desire to separate
the FOI matters and our formal complaints of bias, manipulation of state records
and misconduct as it had become clear to us that the DET was trying to confuse
the two and include the complaints as part of the FOI applications so as to avoid
addressing the complaints – see letter attached and marked with Annexure “E”.

d) Number of documents affected by the Request, the officer time and salary
cost to the agency.

31. Mrs Stathis statement of evidence shows a list of Documents 85 entries long that
have all been dumped in no particular date order, without grouping in any manner
or form. One would imagine that trying to locate the documents in this format
would take some time.

32. In response the applicant has taken the time to sort the documents so as to more
clearly determine the whereabouts of the documents held at the DET and the
number and type of documents held in each location, see attached as follows:

1. Schedule setting out the location of the documents as recorded by the DET on

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 19 October 2005 – Annexure “F”
2. Schedule setting out the location of the documents as recorded by the DET on

12 March 2008 – Annexure “G”.

3. List setting out location of documents at Department of Education –
Annexure “H”.

33. During the process of properly identifying and setting out the documents for the
Department it was noted on page 9 of the ‘List of Records’ provided in the
Statement by Elissa Stathis, and on our schedule headed List of Records dated 12
March 2008 under the heading Legal Services Directorate (Annexure G), that on
the 30 July 2007 the FOI Application in question in this ADT application was
registered to John Murn and was listed as a Corporate File and that on 15 October
2007 it is noted as having been closed. This is despite the fact that the FOI
application had still not been finalised by 15 October 2007 as not all documents
had been produced and one entire part of the application had been ignored. It is
also disturbing to see other matters presently also before the ADT having been
registered as closed.

e) Reasonableness of the initial assessment and the applicants’ co-operation in

redrawing the boundaries of the application.

34. It is clear by the screen dump provided by Ms Stathis that the way documents are
filed and kept would breach the record keeping requirements and Act.

(a) FOI Applications lodged relate to matters pertaining to different children

on different occasions over many years. Already the Applicant has reduced the
scope of the Application, made clear the documents required and assisted the DET
in every way possible as required under the Act.

f) Time lines binding the agency.

35. Timelines might be tight for FOI in NSW but that is only if the DET complies.
The first FOI seeking access to these documents was filed in 2004. The second
FOI application was lodged on 11 July 2007. It is now 19 September 2008 and
many years later we have still not received the documents despite complying with
everything requested of us by the DET.

g) Whether more than 40 hours’ processing time is involved.

36. This application is in relation to matters pertaining to four children over many
years. It is also a fact that if the amount of 40 hours was to be divided by the 4
children and the applicants, about whom the applications refer and have been
separately paid for, then the time would in fact only be less than 7 hours each.

h) Possibility that processing time may exceed the first estimate.

37. The complaints were all filed as per policy and procedure requires and relate to
allegations of bias, manipulation and misconduct by the Selective Schools Unit.

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 That the DET sent the complaints and files to different departments to deal with is
against their Policy in handling complaints of this nature and not something that
should then be allowed to be used by them to deny giving applicants access to
documents and in particular when the matter involves child protection issues.

i) The applicant is a repeat applicant

38. In reality the applicant has lodged 8 original FOI applications relating to test
papers and school documents pertaining to Opportunity Class placement and
Selective High School placement, Ella tests and Basic Skills tests for her children
spanning 7 years. See attached schedule and marked Annexure “I”. The fact
that 19 applications have had to be lodged is a direct result of the DET’s failure to
afford us our rights and to afford us procedural fairness and natural justice. The
majority of these applications have been repeat applications (some more than
twice) as the DET have not provided the documents requested of them within the
required times and have used delay tactics, obfuscation and have ignored our
applications until time issues have come into play and applications have had to be
re-lodged in order to ensure that the ADT had proper Jurisdiction to deal with the
matters. If the applications are repeat applications it is through no fault of the
Applicants who have always endeavored to assist, be fair and do the right thing.

m) Is there a public interest in the disclosure or non-disclosure of these

documents?

39. It is of significant public interest when the Department of Education can refuse to
provide evidence of investigations that they say have been conducted in relation
to serious allegations made against public servants. This is particularly significant
if further fresh allegations are being filed away without investigation on the basis
that the public servants in question have been cleared of any misconduct during
the original investigations.

41 Concerned citizens using FOI have a valid and important role to play in
scrutinizing government conduct and promoting accountability.

40. Procedural fairness is something that is of significant public interest and concern.

Whether the DET provided adequate justification in its statement of reasons.

42 The safety well being and protection of children is of paramount concern and the
DET have a duty of care to protect children. I do not believe that the DET have
provided adequate justification in its Statements/Submissions.

In addition the Applicants seek further orders:

43. The Applicants wish to make an application for an order for costs against the
Department of Education as the time taken to prepare applications and deal with
matters in relation to this application over many years has been significant and
has involved a lot of hours and time taken off work as well as a lot of

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 photocopying fees, filing fees and the like. The Applicant Jolanda had to resign
from her full-time job and do casual work because she wasn’t able to take the time
off work needed to deal with these matters. It is also a fact that there have been
significant solicitors costs involved.

44. The applicants also wish to seek compensation for the manner in which the
Department has handled and dealt with this application to date. The failure of the
DET to afford the applicants procedural fairness and natural justice and to deal
with the application in a proper and timely manner has caused psychological and
emotional harm to the family unit and put children at risk. It is also a fact that the
failure to the DET to properly comply with their requirements under FOI has
ensured that children have not been protected and that they have been further
subjected to bias and harm. This has caused significant emotional as well as
financial and social harm to the family.

45. The Applicants and their children “were put to unreasonable and extraordinary
inconvenience, prejudice, expenses, costs, and risk of harm by the Respondent’s
failure to provide disclosure in accordance with the FOI legislation”.

Applicable Legislation

12 Section 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT

Act’) states:

88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may
award costs in relation to proceedings before it, but only if it is satisfied that there
are special circumstances warranting an award of costs.

46. The Applicants submit there are special circumstances justifying an award of
costs, pursuant to section 88 of the ADT Act and section 56(3) of the FOI Act as
the respondent was responsible for inordinate delay and obfuscation contrary to
the objects of the FOI ACT and hopes that the Tribunal also has the Jurisdiction to
make orders in relation to the matter of compensation for anxiety, distress,
suffering, defamation and loss inflicted to the Applicants and the family in this
matter by the Respondent’s failure to provide disclosure in accordance with the
FOI legislation.

…………………………… …………………………..

Jolanda Challita Peter Challita

9
42 Carramar Crescent
MIRANDA NSW 2228
PHONE: 9501 1072

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