FEDERAL COURT OF AUSTRALIA Mastrangioli v Chisholm Institute of Technical and Further Education [2014] FCA 66 Citation: Mastrangioli v Chisholm Institute of Technical and Further Education [2014] FCA 66 Parties: JOHANNA MASTRANGIOLI v CHISHOLM INSTITUTE OF TECHNICAL AND FURTHER EDUCATION File number(s): VID 534 of 2012 Judge(s): PAGONE J Date of judgment: 13 February 2014 Catchwords: HUMAN RIGHTS – discrimination – whether student was discriminated against on the basis of her disability – whether the case proved on the balance of probabilities – whether evidence gives rise to "reasonable and definite" inferences. Legislation: Evidence Act 1995 (Cth) s 140 Cases cited: Abram v Bank of New Zealand [1996] ATPR 41-507 Australian Broadcasting Corporation v Lenah Game & Meats Pty Ltd (2001) 2008 CLR 199 Hoe v Manningham City Council [2011] VSC 37 Neil v Nott (1994) 121 ALR 148 Luxton v Vines (1952) 85 CLR 352 McWhinney v Melbourne Health (2011) 31 VR 285 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 Platcher v Joseph [2004] FCAFC 68 Date of hearing: 28, 29, 30, 31 January and 1 February 2014 Date of last submissions: 1 February 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: In person Counsel for the Respondent: Mr M Felman Solicitor for the Respondent: Lander & Rogers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 534 of 2012 BETWEEN: JOHANNA MASTRANGIOLI Applicant AND: CHISHOLM INSTITUTE OF TECHNICAL AND FURTHER EDUCATION Respondent JUDGE: PAGONE J DATE OF ORDER: 13 February 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs on a party-party basis until 16 January 2014. 3. The applicant pay the respondent's costs on an indemnity basis from 16 January 2014. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 534 of 2012 BETWEEN: JOHANNA MASTRANGIOLI Applicant AND: CHISHOLM INSTITUTE OF TECHNICAL AND FURTHER EDUCATION Respondent JUDGE: PAGONE J DATE: 13 february 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this proceeding Johanna Mastrangioli sought orders against Chisholm Institute of Technology and Further Education ("Chisholm") on the basis that Chisholm had unlawfully discriminated against her and alleged breach of privacy. Ms Mastrangioli's claim against Chisholm depended fundamentally upon her belief that she had been discriminated against because of a disability. The various ways in which her cause of action was, or could, be put depended upon whether certain conduct (assuming it to have occurred) was based upon various staff members at Chisholm having accessed Ms Mastrangioli's medical records from a time when she had been a patient at the Southern Health Casey Hospital ("Casey"). Ms Mastrangioli was unrepresented in the proceeding and her claims against Chisholm were not expressed with the clarity and precision that would be expected from a legal practitioner. The duty of a court to assist an unrepresented litigant "depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Abram v Bank of New Zealand [1996] ATPR 41-507 at 42, 347; Hoe v Manningham City Council [2011] VSC 37 at [6]. The Court's task in determining a dispute is "to ascertain the rights of the parties": Neil v Nott (1994) 121 ALR 148 at 150. In that task the Court can ordinarily look to the legal representatives of the other parties to assist in the discharge of the Court's task. The Court, however, "must ensure that an advantage is not conferred on the unrepresented party" (Platcher v Joseph [2004] FCAFC 68 at [105]) and must "maintain a position of neutrality": Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446; McWhinney v Melbourne Health (2011) 31 VR 285 at 293 [26]. The unrepresented litigant in this proceeding, Ms Mastrangioli, is an articulate and intelligent woman who had successfully completed part of a nursing course. She lacked legal training and was unfamiliar with court processes and procedures and, of course, with much of the law. However, she was able to articulate her complaint and her evidence even though she may not have had the training and discipline that comes with legal training. The Court also had the benefit of assistance from counsel for Chisholm who helpfully sought to articulate Ms Mastrangioli's potential causes of action based upon the originating application, the amended statement of claim and the evidence. 2 The events said to constitute the discriminatory conduct occurred during the time of Ms Mastrnagioli's enrolment as a student studying for Certificate IV in Nursing (Division 2 Nursing) at Chisholm during the calendar years 2008 and 2009. Ms Mastrangioli subsequently became aware, in November 2010, that her medical records from a time when she had been a patient at Casey before undertaking the course had been uploaded onto the Internet. There is no suggestion that this had been done by Chisholm but Ms Mastrangioli formed the belief that relevant staff at Chisholm must have accessed this information during the time she had been a student and that the discriminatory conduct she complained about during the time as a student was to be explained by her belief that her medical condition was known to those who had been teaching her in the course. Ms Mastrangioli had complained about how she had been treated in her course before becoming aware that her medical records had been on the Internet but, at that time, the complaints were not based upon the belief she subsequently came to have, namely, that the conduct she complained about was discrimination because of her medical condition. Her amended statement of claim, although not written with precision, fairly bases her claim in that way. It was maintained by her on that basis and articulated by her in final submissions when saying at 621 to 624: So we have that document that was published to the internet. We've been able to establish throughout this proceeding that that document was on the internet from 2005. Okay. Now that document could have been discovered at any stage, in my statement of claim, and the whole proceeding is based upon the fact that I do believe that they saw it. I have no doubt in my mind at all that they saw it, at all, absolutely at all, all right? And I do believe that one of them looked in my medical record, despite the fact that I received the evidence that I did, you know, especially from Natasha Collins, that I – I do believe one hundred per cent that that's what happened. Okay. So now I'm going to lead you into that path. Now, there were many opportunities for that information to be discovered. Okay. When I was away because my brother had passed away, I did tell one of the students from my class. I asked her to collect my work, and I told one of the students. Her name was Janet, Janet Hib, and she was a grown woman. She was very, very lovely, but she actually associated with those women from the front row, or these two particular women here and the woman over here who used to associate with Jan Peck. And now that I know what Sunnye said about Jan Peck saying those things to those girls, of which one of them was Eddie – okay – when my brother died, I sort of wonder, did they think that my brother had died, or that I – was I just saying that, you know, was that just another thing that she could turn into, like, a lie to then say, "You know, she lied about this as well, so maybe that didn't really happen." Did they want to check it up? Did they want to google that to have a look, you know? And I look at that, and I think to myself, is that a possibility? You know, when you google someone's name, it's a very common thing, you know. I look at that, and I think to myself I made three applications to Chisholm Institute. You know, I understand that throughout jobs and things like that, people do google people's names, so it's not out of the realm of possibilities that perhaps someone from my class wanted to send me a LinkedIn request or a friend request on Facebook, and maybe they looked for me. Okay. Maybe they couldn't find me because I wasn't there. I wasn't online at that time. So when you send a – like, you look for somebody – even in Facebook, it will take you directly to a search engine, the first result being that longer document of the two breaches. That's 5 the first one. Now, how can I relate the breach to this proceeding and my time with Chisholm? The only way that I can do that, your Honour, is by stating the complete obvious: that document contained the identities of two hospitals, okay, those being the Casey – no – the Casey Rehabilitation Centre Southern Health at Berwick, my final placement location, okay, and also the Kingston Centre. Now, I was sent to both of those hospitals, to both of the – okay, onto both of them. All right. And that – you could say, "That's a bit of a coincidence", you know. That's a bit of a coincidence, just to leave it just at that. That's a bit of a coincidence. Okay. But then when you put in the fact that the last – the last – part of my nursing practice when I was actually studying to be a nurse – that was done with me being in the very same room. Now, I've submitted that document, which shows – clearly shows – the direction at which I was travelling in to get to that room. Okay. It was direct. Now, with regards to the fact that, you know, I wasn't competent or I was competent or something like that, I was sent home a day early from that placement, your Honour – one day early. Now, I've clearly established, you know, that I was not not competent, okay? Now, with regards to the medication calculation, the blood pressure, whatever kind of standard there is, you know, if I did not know how to take and measure blood pressure, okay, that would have been something that would have been brought to somebody's attention way earlier than it was, okay? In the second placement the week before or the week before that, at Frankston Hospital with Angela Bass, who was my clinical teacher, I actually identified a code blue situation. It was a patient, and she – her condition was deteriorating, and I recognised her condition deteriorating, and I notified my division 1 nurse, and I notified her that we needed to call a code blue, okay, and we did. And this division 1 nurse was actually responsible for her. She had another nurse responsible for her who did not pick it up, and yet I had the capacity to do so, you know, so to then the next week say, "No, no, capacity is something that comes and goes", you know, I don't believe that. It is not. You know, when you – if you ask me now to give blood pressure to somebody, I wouldn't be able to do it. I probably wouldn't be able to tell you what was normal. I just wouldn't be able to do it. As far as the respondent is saying that I didn't know how to measure – what was it – respirations, or I didn't measure respirations, that was not something that I admit, that I admitted in this proceeding at all, not at all. You know, I expressed that quite well, that this lady's respirations were 41 from that placement. They were 41. So I failed that placement on the day before it was the end of the placement. I was there to be educated. I was there to learn. I was marked off as being a fail for things that I had already passed my competency in relation to, okay? I look at that and I think to myself, you know – I just look at everything, you know, the way that the evidence came out, the fact that – and quite possibly the most important fact about that was that it was seven years ago, that as she was being given her evidence, the answers were coming out rehearsed, the fact that there was no – that when I asked about whether she worked at Southern Health, she did confirm that she worked at Southern Health, okay. In addition to that, when I – in relation to the clinical placement agreement – and this is quite possibly perhaps the most important and only aspect that could ever be acknowledged – that clinical placement agreement she actually denied. Now, she acknowledged during the evidence that she had worked for Chisholm Institute, that she worked for Joy McIntyre since 2007 and that in her whole career, she had done over 200 clinical assessments, and yet she denied that that document, that that clinical assessment tool that she would have to have fill out for all of those placements that she undertook for Joy McIntyre and then bring to Joy McIntyre the Friday, okay – and I believe Joy McIntyre's advice in relation to that – the fact that she would then say, "I didn't give that to Joy McIntyre." Now, that stood out to me as being something like, why wouldn't you want to acknowledge what is a very common, simple, you know – simple thing. You know, that's what you did for a living. If I ask you to go and do an evaluation on a house because I would like to sell it, you don't just leave that evaluation somewhere. If you are asked to do an evaluation on somebody, regardless of what kind of evaluation it is, whether it be an employment evaluation or a nursing evaluation or a health evaluation, you know, you must give that evaluation back to the person who has ordered it, the person who – I was being assessed in relation to that placement for nursing, and she knew that she had to give that back to Joy McIntyre, and she knew that she did give that back to Joy McIntyre, and yet she denied it. She denied that she gave it back. And Joy McIntyre said that she did, and so I look at that, and I have to ask myself, why would she do that? You know, why would she do that? All right. So basically that's my case, your Honour, that in addition to the fact that, you know, that I was asked, you know – on a balance of probabilities – all right – on a balance of probabilities, when looking at the facts in relation to this matter, we've got Joy McIntyre denying knowledge of a health form that would have been stored within her – a health form that she was – that was probably written by her for the purposes of clinical placements, as it was identified. She denied that she had ever seen it. Okay. Why? Why would she deny that she had ever seen it? Why? Where else would it have been? It would have been with her. The form was designed, as it said, for clinical placements, and yet she denied that she ever saw it. Okay. We then have the two placements again, we have the failure, and then in addition to having the failure, we've got the stuff from the book, the mental health day. Now, that day in mental health, the teacher went around and he gave out those documents, and while – how would I describe it – the subject matter was – I think it was psychosomatic or ..... disorders, which falls within the same category. Like, for example, if I've been diagnosed with, you know, Lewy body dementia, that would be the same classification as all of the other dementias, you know, the same, the very same classification. Now, in my mental health, I've not made any kind of allegation in relation to that teacher, saying, "You know what? He was horrible. He was –" because he wasn't, you know. I have the capacity to 5 recognise when a person is decent, is normal, is, you know – but for me as a person now, I look back upon that and I say to myself, okay, so can we say that that is a coincidence? Can we say that that is a coincidence, you know. Is it possible that my medical information could be on the internet, okay, for five years. Okay. While I haven't perhaps established all of that sort of conduct that was directed towards me, you know, I have Sunnye who came here, and she gave evidence that I was the student who was picked on the worst, okay, that Jan Peck spoke, you know, about my family, telling people that I was a liar, that a medication teacher yelled at me and that Joy spoke inappropriately to me and raised her voice to me. So that's the evidence of her. Okay. Now, if, you know – I look at that and I think to myself, okay, so clearly that can establish quite a few things, you know. That establishes a few things. She was credible, you know. You know, maybe it's not exactly as I remember those things being, you know, the ones that I remember, but it's there, you know. There is 20 something. I don't know. Is it all right if I just go for a quick walk, and then I will focus and come back? The relevant people whose behaviour was impugned each gave evidence and were each cross-examined at length, and each denied ever having accessed, or knowing of, the information concerning Ms Mastrangioli's medical condition whether from the Internet or otherwise. They each gave evidence that Ms Mastrangioli was treated no differently from any other student in her position and that she had failed aspects of her course because she did not meet the objective standards required for its successful completion. 3 The individuals at Chisholm who Ms Mastrangioli contended had discriminated against her were Joy McIntyre, Marilyn Norris, Jan Peck, Kristen Allison, Natasha Collins and Tania Hallisey. Each of these individuals had, at the relevant time, different positions within the course undertaken by Ms Mastrangioli and each was said by her to have engaged in particular conduct that was unlawfully discriminatory conduct. Ms McIntyre, now retired, had been a registered nurse with the State of Victoria and at the time of Ms Mastrangioli's enrolment with Chisholm had been the Acting Program Co-ordinator of Health & Community Care for Chisholm at the Berwick and Frankston campuses, and was also the Clinical Placement Co-ordinator for both campuses. Ms Norris was also a nurse and at the time had been the person responsible for a placement Ms Mastrangioli was given at the Carinya Psycho-geriatric facility ("Carinya") which was one of the placements which Ms Mastrangioli failed. Ms Norris has been a registered nurse since 1967 working mainly in psycho-geriatric facilities. In 2008 she worked at Carinya as a clinical supervisor for Chisholm in a role she had had from 2006. Her role as clinical supervisor was to supervise student nurses when the students were obtaining experience in a clinical environment by applying in the "real world" of a clinic the knowledge they had gained in the classroom and the laboratory. Her role included the assessment of students in the placement "as competent or not competent, to help them, and [to] cope with any problems that they may have to gain confidence, and [to] ensure that they were competent to work in the nursing field". The assessment of the competence of a student nurse was done by reference to criteria which was explained to the students in class and was set out in written materials given to the students. Ms Collins was also a registered nurse employed by Chisholm as a clinical educator. She was responsible for supervising Ms Mastrangioli at her placement at Casey which was another clinical placement Ms Mastrangioli failed. Ms Peck was a registered nurse and was one of Ms Mastrangioli's teachers in 2008 in the Chisholm course. Ms Allison was a nurse and the co-ordinator of the medications subject called "Administer and Monitor Medications in the Work Environment". The medications subject was of particular significance to the training of nurses in the course undertaken by Ms Mastrangioli. The course included a specific module for medications monitoring and administration. Ms Mastrangioli acknowledged in cross-examination that hers was the first year in which the students were permitted to undertake medications as part of their training. Ms Allison explained that the regulations, including those of the Nursing and Midwifery Board of Australia, required a 100% competency in the medications testing for a nurse to be eligible for registration. Ms Hallisey was a nurse employed by Chisholm to teach the medications subject with Ms Allison. She was later employed by Care Training Australia as the nursing course coordinator. 4 Ms Mastrangioli contended that I should infer that each of these individuals knew of her medical condition or had attributed such a condition to her, and that each had engaged in discriminatory conduct because of knowledge of that condition or because they had attributed such a condition to her. Each of the individuals against whom Ms Mastrangioli made allegations gave evidence, each was subject to cross-examination by her, and each gave credible evidence, which I accept, that they did not know of Ms Mastrangioli's condition, that they did not attribute to her any such condition and that they did not treat her in a manner that was different from the way in which they did treat, or would have treated, a student in a position similar to Ms Mastrangioli undertaking the course. 5 Ms Mastrangioli's case requires inferences to be drawn contrary to the testimony each has given. Her case requires the Court to be satisfied on the balance of probabilities of the facts and inferences she alleged. In deciding whether the Court is satisfied on the balance of probabilities the Court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged: Evidence Act 1995 (Cth), s 140. In this case serious allegations of conspiracy and dishonesty are alleged against the individuals against whom Ms Mastrangioli seeks the Court to have inferences made. In Luxton v Vines (1952) 85 CLR 352 Dixon, Fullagar and Kitto JJ said at 358: The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant is responsible vicariously or otherwise occasioned the injury complained of was restated recently by this Court in Bradshaw v McEwans Pty Ltd, and for the purposes of this case it is enough to set out the following passage from the judgment: "Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn. (Citations omitted). The burden of proof to be discharged by Ms Mastrangioli is not as high as having to satisfy the Court that what she contends must "certainly" have occurred. It is sufficient that inferences can be drawn; but such inferences must be, at very least, both reasonable and definite. The evidence in this case does not make such inferences either reasonable or definite. Each of the witnesses against whom the allegations were made presented as reliable and honest witnesses giving testimony to the best of their recollection. Each was specifically asked about, and denied having known about, Ms Mastrangioli's condition at the time of the events about which she complained. Each was asked, and denied, treating Ms Mastrangioli differently from their treatment of other students in the same or similar position as Ms Mastrangioli. Each was cross-examined and each satisfactorily explained the basis of their conduct which Ms Mastrangioli complained to be discriminatory. Their evidence did not appear contrived or rehearsed and at times differed, as could be expected of witnesses giving evidence from memory about events which occurred some years before concerning circumstances which, at the time, did not in their minds have the significance which they came to have after Ms Mastrangioli commenced this proceeding. Furthermore, their evidence is the more probable account of the facts in view of the contemporaneous documents and surrounding circumstances. 6 It follows that Ms Mastrangioli's case fails because its factual foundation does not exist and it becomes unnecessary to explore the potential legal basis her case might have had. Indeed, not only has Ms Mastrangioli not satisfied me that I should find the facts and draw the inferences she needs to establish her case, but the evidence before me affirmatively establishes that none of the individuals concerned knew of her condition, nor sought to discriminate against her, nor sought to inflict harm upon her. It is therefore not necessary to consider the many specific allegations that were made but it may be desirable to deal with two of the more serious allegations made by Ms Mastrangioli as they reflect upon the probability of the facts she alleges and the inferences she asks to be drawn. 7 One of the complaints of discrimination made by Ms Mastrangioli was that she had been deliberately made to fail a placement at Carinya in which the clinical supervisor had been Ms Norris. Paragraph 15 of Ms Mastrangioli's amended statement of claim refers to this placement and asserts that, contrary to the evidence of others, she had not failed the placement. The process of assessment of the students involved the completion by a supervisor of a Clinical Placement Assessment Tool ("assessment tool") in which the clinical supervisor concerned (in this case Ms Norris) was required to record whether the student was competent or not competent against a range of workplace situations. Blank copies of the assessment tool were always sent by Ms McIntyre to the clinical supervisors which they were always required to complete and to provide to Ms McIntyre at the end of the placement. Each student also had blank copies of the assessment tool in a log book, referred to as "the red book", in which the clinical supervisor would write comments including the clinical supervisor's assessment of the student as either competent or not competent on that placement. Ms McIntyre gave evidence that she would also require a clinical supervisor to provide a short additional statement of the reasons for the conclusion that a student was not competent on a placement if that had been the assessment of the clinical supervisor. The assessment tool for the Carinya placement was not in evidence because it could not be located, but both Ms Norris and Ms McIntyre were confident that it would have been provided by the former to the latter at the conclusion of the Carinya placement. Ms Norris also gave evidence of, and identified in the exhibits, a written report in addition to the assessment tool which she recalled having prepared in respect of her assessment that Ms Mastrangioli was not competent at the placement. Such a report was of the kind about which Ms McIntyre had given evidence that she would require from the clinical supervisor, but Ms McIntyre could not recall ever having seen the particular document tendered in evidence. Ms McIntyre's candid evidence that she could not recall having seen that report alone tends against Ms Mastrangioli's claim because the document supported Ms McIntyre's evidence and testifying that she could not recall a document supporting her case is consistent with a witness giving truthful evidence to the best of her recollection rather than relying upon convenient evidence to harm Ms Mastrangioli. It is, however, probable that Ms McIntyre had seen the document in view of the practice which she had and always followed, and in view of the importance of the practice for the continuing studies of the students. In any event, Ms Mastrangioli's claim was that her failure of the Carinya placement was not justified notwithstanding the details of the report which Ms Norris had made. 8 Ms Mastrangioli's failure of the Carinya placement had also been recorded by Ms Norris in the pages of Ms Mastrangioli's log book, the "red book", relevant to that placement. Ms Mastrangioli contended, however, that what had been placed by Ms Norris in the relevant pages of the red book would not justify a failure. It is clear from what is in the red book that Ms Norris had concluded that Ms Mastrangioli was not competent at that placement. That was clearly indicated by Ms Norris having ticked the section "not competent". The final summary of performance indicated on that page said: I feel that Johanna has found this placement very challenging but showed a lot of compassion & empathy with the residents. Another placement would be beneficial to fine tune some social skills – time management requires attention. Under a heading for comments, Ms Norris recommended a further placement to improve time management skills and to gain confidence. What appeared in the assessment tool is not known because it could not be located but the more detailed report prepared by Ms Norris, and confirmed by her as having been prepared by her at the relevant time, provided a more detailed explanation for her conclusion that Ms Mastrangioli was found to be not competent on that placement. These matters were elaborated upon by Ms Norris in her oral evidence which emphasised the seriousness with which Ms Mastrangioli's unsatisfactory behaviour had been viewed. Ms Norris' written report provided specific details for each of the four days of the placement and a personal opinion expressed by Ms Norris. 9 Ms Mastrangioli, in her amended statement of claim, conceded to have been late by some ten minutes on the first day of the placement but that fact, as was conceded by Ms Norris in cross-examination, was unlikely of itself to be of sufficient concern to justify a conclusion of Ms Mastrangioli being not competent. What did feature prominently, however, was an incident described in some detail which occurred during the students' orientation on the first day of the placement. Ms Norris recorded that she took the students for a walk through the facility to familiarise them with the layout, the fire safety aspects of the facility and the conduct which was expected of the students during the placement. She then recorded: I was in Hibiscus Unit with the students, we were standing in the dining room as I spoke to them. I observed Johanna walk away from the group to one of the residents. I continued my orientation and moved along the passage. At this point I realised that Johanna was not part of the group. I asked the students to wait, I returned to the dining room to get her. I asked her to please join the group to which she replied that the resident needed something. I then insisted that she re-join the group for our orientation and that the staff are there to care for the residents. (I found this behaviour irresponsible in light of the discussions we had earlier had about the resident behaviours. She did not know the resident's name, condition or behaviours to feel she was equipped to handle the request. There seemed to be a lack of insight and she obviously felt she could cope, or maybe the saviour!!!). Ms Norris described the incident in oral testimony as "bizarre" and the competing evidence about this incident is significant to my conclusions in this proceeding also because of Ms Mastrangioli's insistence during the hearing of the appropriateness of what she had done. Ms Mastrangioli's view during the hearing was that her behaviour in respect of the incident with the patient was both natural and was that required by any individual in her situation from whatever walk of life, whether or not a nurse. In contrast, however, the view Ms Norris expressed was that the behaviour expected from a nurse required greater insight and appreciation than might be expected from an uninformed person approaching an unknown patient. In particular it was Ms Norris' professional view that a student nurse approaching an unknown patient in a psychiatric ward should have sufficient insight and awareness to appreciate that approaching the patient without knowing the patient's history might compromise the treatment of someone in a psychiatric facility. A significance of this evidence for present purposes is that it established that the reason for Ms Mastrangioli being deemed not competent on the Carinya placement was not likely to have been the reason alleged in the amended statement of claim but that it was more probably the reason set out in Ms Norris' detailed account and in her oral testimony. The reasons given by Ms Norris in the written report, and in her oral testimony, are plausible and reflect the concerns which a clinical teacher is likely to have about the conduct of a student at a placement of the kind in question. There was no dispute that an incident of the kind described by Ms Norris did occur (although Ms Mastrangioli disputed (from her recollection) that the group had moved away as far as the report from Ms Norris stated), however, it was clear from Ms Mastrangioli's evidence and from her submissions, that she continued to have, at best, a different professional judgment about the appropriateness of her behaviour on that occasion in that instance. The greater probability is that an incident of the kind described, even as described by Ms Mastrangioli, would have been of significant concern to Ms Norris as exposing both patient and student to risk, and that it was this concern that was part of her reason for assessing Ms Mastrangioli as not competent on that placement. 10 A second instance referred to by Ms Norris in her report of that placement concerned the evaluation by Ms Norris of Ms Mastrangioli's appreciation of the significance of confidential information given to the nurses in the discharge of their tasks. On the second day of the placement an incident occurred in relation to a confidential hand-over sheet which was recorded as follows: 0700 – Hand-over in all units. All students present except Johanna. Arrived at 0710 – I was walking out of one of the units and found her heading in the wrong direction. I called for her to go into [t]he assigned unit immediately and that she had already missed hand-over. Started to tell me that her father had driven her…at this point I told her I was not interested in excuses as I had made it very clear yesterday in my expectations of all students to be in their designated unit ready for hand-over at 0700 to which everyone agreed there wouldn't be a problem. Later in the morning Johanna asked me for another hand-over sheet. She said she had left it on the table in the staff room. I expressed my concern at this action which was irresponsible, to say the least. I explained, (as I had yesterday) that these sheets were a legal document and she had breached both confidentiality and privacy code. At this point J. replied that it was in the staff room but I explained that it was unacceptable – the area was frequented by tradesmen, volunteers and allied health workers. 1100 – Spoke to Johanna privately expressing my concerns about her recent behaviour – started making excuses to which I replied I am not interested in excuses because there are none relevant. The account goes on to record other matters of concern to Ms Norris on that, and on subsequent days, but for present purposes it is sufficient to mention the incident concerning a hand-over sheet. Ms Norris was concerned that Ms Mastrangioli had missed hand-over at the commencement of a shift, but in particular was concerned that Ms Mastrangioli did not appear to Ms Norris to have appreciated that it was wrong to have left a hand-over sheet in the staff room. Hand-over occurs when one shift of nurses is replaced by another and important information concerning the patients is conveyed to the staff commencing the new shift. Some of that information, personal to the patients, is contained in writing on hand-over sheets and a hand-over sheet was provided to Ms Mastrangioli at the commencement of each shift. Ms Norris recorded that on the second day of the placement Ms Mastrangioli had requested another copy of the hand-over sheet because she had left the one previously given to her in the staff room. Ms Norris was concerned in particular by her perception that Ms Mastrangioli did not appear to regard it as inappropriate to have left the hand-over sheet in the staff room. Ms Norris gave evidence that the staff room was an open area in a building frequented not only by staff but also by tradesmen, volunteers, visitors and allied health professionals. Ms Mastrangioli did not dispute that she missed the hand-over nor that she had asked for another sheet because she had left the one previously given to her in the staff room. The written account in the report by Ms Norris makes more probable that the reason Ms Mastrangioli was marked not competent on the placement was, in part, Ms Norris' professional assessment as a clinical teacher that it was of concern that Ms Mastrangioli did not regard the leaving of the hand-over sheet in the staff room as inappropriate. 11 The written report of Ms Norris concerning the Carinya placement refers to the assessment tool which, as I have mentioned, could no longer be found. The fact of it being referred to adds to the probability that it once existed (as both Ms McIntyre and Ms Norris said) but that it has since been mislaid. It also makes it probable that the content of the assessment tool for the Carinya placement was consistent with Ms Norris' written report which refers to the missing assessment tool. In the section of the written report by Ms Norris expressing her personal opinion, she expressed a reluctance to conclude that Ms Mastrangioli was not competent on the placement. However, in referring to the assessment tool, she qualified one of the conclusions she had expressed about Ms Mastrangioli's competence by saying: In view of the events I have summarised, I honestly do not feel I can pass Johanna as competent. I feel that she would not survive out there in the general work-place, (the real world), with the personal effect on her a negative. It does seem an irony in that the care of the residents according to the assessment tool I have to complete is marked as competent – but please let me qualify. It is competent for 1 resident only and not as in the real world where staff are responsible for a minimum of 6 residents. That includes not only their total care but also the documentation required and the ability to be a team player. Such observations are consistent with what Ms Norris had written in Ms Mastrangioli's red book, namely, that in judging her to be not competent at the placement Ms Mastrangioli had found the placement challenging but had showed a lot of compassion and empathy with the residents. However, the professional judgment of Ms Norris by contemporaneous reference to actual incidents in the report prevented her from judging Ms Mastrangioli to be competent in that placement. Ms Norris concluded her report by observing that a decision of "not competent" would have a less detrimental effect on Ms Mastrangioli than having to repeat the placement in another facility. In other words, Ms Norris concluded that Ms Mastrangioli would benefit from another placement elsewhere and was not creating a permanent obstacle to Ms Mastrangioli completing her course. The report identifies reasonable concerns by a responsible educator and supervisor however unjustified they may have seemed to the student. 12 A second of the more serious allegations made by Ms Mastrangioli concerns her failure of a written test which she was required to complete before undertaking a placement in 2009. In September 2009 Ms Mastrangioli was to undertake another placement to make up for the ones she had failed but, because of the length of time which had passed between when she had last been tested and the proposed placement, she was required to undertake an assessment to demonstrate her continuing proficiency to undertake a placement she needed to complete for her nursing certificate. In December 2008 Ms Mastrangioli had been placed at Casey for a placement and had found herself in the ward in which she had been a patient some years previously. She found the experience stressful and was found not competent at that placement. Ms Collins had been the clinical teacher at that placement and tendered in evidence the assessment tool for Ms Mastrangioli which Ms Collins completed in respect of the Casey placement. Ms Collins also wrote a separate report, also tendered in evidence, of the kind Ms McIntyre required whenever a student was assessed as not competent in a placement and therefore to have failed the placement. Ms Mastrangioli made a series of complaints about the Casey placement, including that she had been given the placement at Casey to cause her to fail, but for present purposes it is sufficient to note that by the end of 2008 she had not completed all of the requirements which she needed to complete to qualify for the nursing certificate for the course in which she had enrolled. 13 On 19 January 2009 Ms McIntyre wrote to Ms Mastrangioli concerning Ms Mastrangioli's intentions to complete her nursing course and on 27 January 2009 Ms Mastrangioli met with Ms McIntyre and Ms Peck to discuss what Ms Mastrangioli needed to do to complete the course. As at that time the outstanding work was: Case study for HLTEN513A Implement and Monitor Nursing Care for Clients with Chronic Health Problems Case study for HLTEN415A Deliver Nursing Care to Acute Care Clients Case study for HLTAP501A Analyse Health Information Case study for HLTEN505A Contribute to the Complex Nursing Care of Clients Case study for HLTEN414A Deliver Nursing Care to Older Clients Assignment for HLTIR403B Work Effectively with Culturally Diverse Clients and Co-workers Assignments for HLTHIR404B Work Effectively with Aboriginals &/or Torres Strait Islander People. At that time Ms Mastrangioli also needed to repeat 160 hours of an Acute Clinical Placement. There was some dispute about some of the events between January and September 2009, but an event which did occur was the sitting of a written test described as a "hurdle requirement test". Ms Mastrangioli sat the test but failed it because she failed the drug calculations component of that test which required that all of the five questions in the paper be answered correctly. That failure is objectively established on the written paper in Ms Mastrangioli's handwriting showing that she attempted the test and that of the five drug calculations questions Ms Mastrangioli got two correct, incorrectly answered two others and failed to answer one at all. There was some evidence from which it might be possible to conclude that prior to the test Ms Mastrangioli had not had as clearly explained to her as hindsight might suggest she ought to have had explained to her what was required from her in the test, but it is clear that she failed the test because she had not passed the drug calculations component. It is also clear that she was aware of the purpose of the test and of the need to show proficiency in medications administration before being allowed to do the placement. In an email on 31 August 2009 Ms Mastrangioli contacted Ms Allison in connection with the placement asking for a time to complete "medication compliance" prior to her placement. Earlier in the email Ms Mastrangioli showed that she understood that the purpose of the requirement was to review her "proficiency in medication administration" prior to being allowed to do her final placement. On 8 September 2009 Ms Allison informed Ms Mastrangioli that a teacher had been organised to do the hurdle requirement test with her and that she should attend Berwick campus lab at 8:00 am on 14 September 2009. 14 Ms Mastrangioli's contentions about the hurdle requirement test were that it was part of the intentional behaviour on the part of those concerned to ensure that she fail the test because of the disability which she maintained the individuals must have known from what had been published on the Internet. However, the importance of the hurdle requirement test was explained by those who gave evidence and was not a requirement which was imposed only upon her: there was at least one other student sitting a similarly described "hurdle" test at about the same time as Ms Mastrangioli. The evidence was also that there had previously been "hurdle" tests which students had been required to sit and that there have been others who have done a test styled as a "hurdle" test since that attempted by Ms Mastrangioli. There was, according to the evidence, nothing about Ms Mastrangioli that made a "hurdle" test specific only to her. On the contrary, it was explained that the need for the hurdle requirement test was due to the gap in time between when she had last been tested as proficient and the proposed date of the new placement. Those in charge of the course were concerned to ensure the safety of the student, and of the patients, upon any placement. A purpose of the hurdle requirement test was to ensure that the students would not be put at risk in the placement by not having current proficiency in areas they had previously been required to study as necessary knowledge for a placement involving the care of patients. 15 Ms Allison had been asked to prepare the hurdle requirement test and had done so by selecting questions which had previously been put to Ms Mastrangioli in past exams. None of the questions, therefore, were new to Ms Mastrangioli although the test itself was different from previous tests inasmuch as it was a compilation of questions selected from previous tests. The drug calculations component in previous tests had had ten questions but in the hurdle test there were only five. The original of the test was tendered in evidence with Ms Mastrangioli's handwriting as well as the handwriting of the examiner, Ms Hallisey, who had also supervised Ms Mastrangioli attempting the test. The evidence shows a failure by Ms Mastrangioli of the reasonable requirements expected of a student nurse going on an acute care clinical placement. The questions she was asked to answer were a selection from questions which Ms Mastrangioli had previously seen and, but for her failure in the drug calculations component, would have been passed by her. She received an overall mark of 70% and required only a 65% pass apart from the requirement of passing all of the drug calculations questions. The need for there to be a 100% pass of the drug calculations component was, as explained by the witnesses, in the potentially life and death significance of the incorrect administration of medications to a patient. The need to obtain 100% for all drug calculations components was something that had been known to all students in the course. The objectively verifiable evidence confirms the inherent probability of the evidence given by those concerned that any of the conduct complained about was not due to any actual or imputed knowledge of Ms Mastrangioli's condition and confirms the inherent improbability of the inferences upon which Ms Mastrangioli's claim depends. 16 My conclusion that the conduct about which Ms Mastrangioli complained was not informed by knowledge of Ms Mastrangioli's condition makes it unnecessary for me to consider the other individual complaints in detail. However, before considering them briefly, I should express some general conclusions about the evidence and, in particular, about the evidence given by Ms Mastrangioli. 17 I did not find Ms Mastrangioli to be a dishonest witness and was not invited to do so. She appeared, as I have said, to be an articulate and intelligent woman who has, however, experienced difficult circumstances. Her time at Chisholm coincided with an 18 month period in which a number of members of her family, including two close members, passed away. Amongst those were her father and brother. She herself had previously had a brain tumour and had been in Casey as a patient. Her evidence included a medical certificate that she had suffered from depression. It is, therefore, not surprising that her recollection of some events may be inaccurate. Two examples of her recollection being inaccurate can be seen from her testimony concerning the hurdle requirement test. The first example is Ms Mastrangioli's insistence that there had been ten questions in the drug calculations component of the hurdle test in the face of the clear documentary evidence which showed that there were only five. Previous tests had had ten questions but the drug calculations component of the hurdle requirement test which Ms Mastrangioli sat had only five questions. The document itself clearly shows that to have been the case and that was also the oral evidence given by both the person who set the exam (Ms Allison) and the person who supervised and marked it (Ms Hallisey). Ms Mastrangioli, however, remained convinced that the drug calculations component of the test she had attempted had ten questions despite the original copy of the test tendered in evidence showing that it had only five questions and the oral testimony of Ms Allison and Ms Hallisey. A second example of her evidence in relation to the hurdle requirement test being inaccurate concerned the identity of the person who had supervised the hurdle requirement test. Ms Mastrangioli was adamant that the test had not been supervised by Ms Hallisey. However, Ms Allison gave evidence that she set the exam and had asked Ms Hallisey to supervise its completion. Ms Hallisey gave evidence that she had been asked to supervise Ms Mastrangioli doing the test and that Ms Hallisey had done so. Ms Hallisey also gave evidence of having marked the test and identified her own handwriting on the original version of the test which also had Ms Mastrangioli's handwriting. Ms Mastrangioli had been told before sitting the exam that it would be marked when handed in and was told within a short time that she had failed because she had not answered correctly all of the drug calculations questions. It is clear from the document that Ms Mastrangioli completed the test and that Ms Hallisey marked it. That afternoon Ms Mastrangioli made a complaint with Mr Matthew Posetti at Chisholm's Student Services. Email correspondence sent by Ms Hallisey and Ms Allison that afternoon confirm their account of who supervised and marked the test and that evidence was in contrast with Ms Mastrangioli's confident insistence, which she maintained at all times throughout the hearing, including during her final submissions, that it was not Ms Hallisey who had supervised and marked the test. 18 Ms Mastrangioli's account of events was also frequently unreliable because her recollection of events misstated the facts and appeared to do so to fit the case she wanted to maintain. Her evidence, for example, about whether Ms Peck had said in public that a student had herpes was misstated and was contradicted by Ms Sunnhye Hughes who had been called by Ms Mastrangioli. Ms Mastrangioli had said that Ms Peck had "diagnosed" a student in class as having herpes. The student in question was Ms Hughes whose oral evidence in support of Ms Mastrangioli was significantly different from Ms Mastrangioli's account. According to Ms Hughes it had been she who had said in class that she had a "red lump, or cold sore, under her eye" and that after "some banter" in which Ms Hughes had engaged with Ms Peck the latter described the cold sore by its technical name as herpes. There was no suggestion from Ms Hughes' evidence of any diagnosis by Ms Peck; indeed it was clear that what had occurred was not a diagnosis, and the description of the cold sores as herpes was no more than to give cold sores the technical name which, perhaps, a nurse should either be expected to know or should be expected to learn. 19 Many of the specific allegations which she claimed to be in breach of her rights are of conduct which in large part depend upon impression and perception rather than upon objective facts. Thus, a number of the allegations were to the effect that Ms McIntyre or Ms Allison had spoken harshly to Ms Mastrangioli or had singled her out when speaking harshly or critically. Ms McIntyre and Ms Allison both gave evidence and each presented as individuals who ordinarily speak firmly. Ms McIntyre described herself as always speaking "firmly" and "with authority" in her voice. It is perhaps not surprising that a person in her position would do so. Her manner in the witness box was at all times one that might fairly be described as speaking firmly and with authority. She was, however, at all times polite even when under direct personal criticism in cross-examination from Ms Mastrangioli. Ms Allison had a naturally loud voice and observed at one point during her oral testimony that even in the amplified context of a courtroom her voice would carry when she spoke. Both women accepted that others might perceive them as speaking critically but both rejected, and I accept their rejection, that they would have spoken critically to Ms Mastrangioli. Both were acutely aware of their duties in their role as teachers of student nurses and in providing the appropriate professional role model which the course was in part designed to instil. Their evidence, and their behaviour in the witness box, together with the fact of the roles they had as teachers, make their evidence about their conduct towards Ms Mastrangioli and the other student inherently more probable than that of Ms Mastrangioli. That is not to say that Ms Mastrangioli, or Ms Hughes who gave evidence in support of Ms Mastrangioli, might not have had a perception of Ms McIntyre or Ms Allison speaking harshly, but I do not accept the perception of Ms Mastrangioli and of Ms Hughes as an accurate or fair account of the actual behaviour of Ms McIntyre and Ms Allison. 20 There were in all some 21 allegations which Ms Mastrangioli relied upon in contending unlawfulness on the part of Chisholm. It is, as I have said, unnecessary to consider them in view of my conclusions but, for completeness, I will deal briefly with the complaints I have not already dealt with. 21 In paragraph 5 of her amended statement of claim, Ms Mastrangioli contended that Ms McIntyre breached Ms Mastrangioli's rights in respect of her private medical information on 28 January 2008 at a student induction day. The particulars given for this allegation were that Ms Mastrangioli approached Ms McIntyre, who was sitting down at a desk at the front of the room, and informed Ms McIntyre that she could not drive and produced her visual field documentation as evidence of her visual impairment. According to the particulars, Ms McIntyre looked at the documentation and spoke in a sufficiently loud voice for others in the room to hear details of Ms Mastrangioli's medical condition and to hear Ms McIntyre asking if Ms Mastrangioli had enough vision to see and to perform the task of nursing. 22 Chisholm was aware that Ms Mastrangioli had a visual disability as it was declared in Ms Mastrangioli's enrolment form which was completed on 14 January 2008, however an actionable disclosure of confidential information is unlikely to have occurred. Ms Mastrangioli's several accounts of the event relied upon are not consistent, and in critical respects her account is both denied by Ms McIntyre and is inherently unlikely. Paragraph 5 of the amended statement of claim suggests that Ms McIntyre's breach occurred when speaking to the students as a group from the auditorium, but the particulars of the allegation in that paragraph, in contrast, suggest that any disclosure by Ms McIntyre to others of Ms Mastrangioli's visual impairment may have arisen when Ms Mastrangioli approached Ms McIntyre to discuss the matter. In one place, therefore, the event was described by Ms Mastrangioli as initiated by Ms McIntyre speaking to the class as a whole, whilst in the other it was described as an event initiated by Ms Mastrangioli, with Ms McIntyre responding at the place where she had been approached by Ms Mastrangioli. In her oral testimony Ms Mastrangioli's account was: And this is the time when I - Jan or Joy McIntyre was sitting at the front of the room. It was like a theatre and our class was there. She said, you know, at the end, if any student could not drive, if they could come to the front of the classroom and speak with her about it. She was sitting on that side of the room, she had her own little table, and I went up and there was another girl who went up, and her name was Dora. She was very young, and she couldn't drive either. I gave my field of vision test, which are the next two documents that you have there, to Joy McIntyre. And Joy McIntyre looked at them and then she asked me if I firstly, she said, you know, she was a bit shocked, and then she said, did I have enough vision to actually perform the task of nursing. And that wasn't private, there were students in the room. There was not much room between the front of the door and the beginning of where the students were sitting, and the students were moving around the room. And in that time, I felt very, very, very uncomfortable. I felt - I can't even describe it. After spending so much effort, like, the documents that I have just gone through with you, to actually get into nursing, to be told that in front of other people, and to have that sort of information shared, it was just - for me, it was, - like it was horrible. In cross-examination Ms Mastrangioli accepted that it was she who had approached Ms McIntyre but that a student named Dora was there as well. In contrast, Ms McIntyre denied ever having revealed any information about Ms Mastrangioli's visual disability publicly. It is likely that her visual disability was discussed amongst Chisholm staff, as was reasonably to be expected from its disclosure in that part of an enrolment form which expressly asked whether the prospective student nurse had a disability for which she may require assistance. However, it is unlikely that Ms McIntyre on the orientation day, with new students commencing a course of studies in nursing, was likely to have revealed details of a student's visual disability in the hearing of the students. Ms Mastrangioli's evidence falls short of establishing the facts in her allegation. 23 In paragraph 10 of the amended statement of claim Ms Mastrangioli alleged that she had been in the laboratory on one occasion in February 2008, and as it filled with other students Ms McIntyre "came in and standing at the doorway of the lab, asked [Ms Mastrangioli] to collect her bag and leave the school, as she had not paid her fees and there was no insurance for her should an accident happen". In paragraph 52 of the amended statement of claim Ms Mastrangioli identified this allegation as one of the breaches of her rights to have her private, personal and confidential health, student, financial, opinion or other information kept private. Ms McIntyre accepted in evidence that she spoke to the whole class about the importance of fees being paid, but that she would not have stood in the doorway of a laboratory and called out to a student indicating that the student had not paid fees. Ms McIntyre's evidence was: I don't recall the incident, but I know what I would have done. I would have not stood in the doorway of a laboratory and called out. At that time I was the acting program co-ordinator as well. I would have entered the laboratory. I would most likely have gone to the clinical teachers in the laboratory, explained why I was there. Then I would have gone to Johanna and asked her to leave the laboratory with me. If Johanna did ask me why, I would have explained to her, but it would not have been explained in a loud voice that other students would have heard. I accept Ms McIntyre's evidence as the more probable account of what occurred in respect of the payment of fees. In any event, the non-payment of fees was not information conveyed in confidence by Ms Mastrangioli so as to attract a duty of confidence. Ms Hughes, who was called to give evidence by Ms Mastrangioli, did not give evidence of any such occurrence. 24 In paragraph 12 of the amended statement of claim Ms Mastrangioli made a number of allegations about inappropriate statements being made to her by Ms McIntyre in the presence of others. Paragraph 12 contained an allegation that Ms McIntyre not only raised her voice to Ms Mastrangioli but had spoken to her "with extraordinary malice" and with "a harsh and contemptuous voice" about how unprofessional it was for Ms Mastrangioli to be late and had asked "how she would get a job or hoped to keep a job, within the industry if she was so very tardy". This allegation, in the particulars to paragraph 12, was linked to a complaint that she had been placed at the Berwick Private Aged Care facility ("Berwick") rather than at the Regis Waverley Gardens facility in the knowledge that Ms Mastrangioli could not drive. What was described in the particulars as the verbal assaults upon Ms Mastrangioli was said to have occurred in front of Ms Peck, but Ms Peck gave evidence and denied any such incident; as did Ms McIntyre. Ms Hughes, who gave evidence for Ms Mastrangioli, could not recall any such incident. I accept the evidence of Ms McIntyre and Ms Peck. Ms McIntyre gave evidence for several hours over two days and at all times maintained a professional disposition. There was nothing in her demeanour, or in anything she said, or in any of the objective evidence, that would justify a conclusion of malice towards Ms Mastrangioli. Ms McIntyre's placement of Ms Mastrangioli at Berwick was explained by Ms McIntyre as her attempt to accommodate Ms Mastrangioli in the knowledge that she could not drive and needed to have placements that were accessible by public transport. 25 In paragraph 13 of the amended statement of claim Ms Mastrangioli alleged that Ms Peck had approached Ms Mastrangioli in front of other students and had referred to her lateness and absenteeism. In paragraph 52 of the amended statement of claim Ms Mastrangioli summarised the complaint as the expression of concerns for her academic progress being shared with others in the class. No evidence was led by Ms Mastrangioli in respect of the claim but Ms Peck denied that it occurred and I accept that evidence. 26 In paragraph 15 of the amended statement of claim Ms Mastrangioli alleged that she had been discriminated against by having been placed at Carinya (to which I have previously referred). The allegation was relied upon by Ms Mastrangioli to show unlawful discrimination, the intention to inflict mental harm upon her, the imposition of unjustifiable hardship upon her and as a breach of privacy and confidential information. However, for the reasons I have previously given, I do not regard any of these claims to be established on the facts. The reasons for her failure at the placement were clear, cogent and valid. Ms Norris was challenged by Ms Mastrangioli in cross-examination and explained her professional reasons for assessing Ms Mastrangioli as not competent on the placement. There were other reasons in the written report by Ms Norris for her conclusions to which I have not previously referred but which support my finding that the reason for the failure at the placement was an exercise of professional judgment and not unlawful discrimination or an intention to inflict mental or any other harm upon Ms Mastrangioli. 27 In paragraph 16 of the amended statement of claim Ms Mastrangioli alleged that Ms McIntyre publicly spoke in a harsh way about Ms Mastrangioli having failed her mental health placement. Specifically paragraph 16 contained the following sentence: At the first possible moment, the Applicant alleges that Joy McIntyre came to the Applicant's class and again what came out of her mouth was really very bad, again her voice was raised with a harsh tone, this time she started talking about how the applicant had failed her mental health placement, how there was something clearly wrong with the Applicant and how that sort of thing would not happen again. There was no evidence led about this allegation and I do not find it to be established. The facts asserted in it, however, are improbable given the evidence of Ms McIntyre and the other staff at Chisholm, including the fact of conducting a course where students were being taught about the importance of confidentiality of health information. It is inherently unlikely that a teacher such as Ms McIntyre, at her stage in her career, would have made statements of that kind to a class of students expected to learn the importance of keeping confidential information about the condition of patients. 28 In paragraph 18 of the amended statement of claim Ms Mastrangioli alleged that she had been discriminated against by not being offered the ability to sit with some international students at Frankston to give her the opportunity to attend a medications class which she had missed. However, no evidence was led in support of this allegation and I do not find it to have been established on the evidence. 29 In paragraphs 20 and 21 of the amended statement of claim allegations were made of other statements attributed to Ms McIntyre concerning Ms Mastrangioli's condition or personality. In the particulars to paragraph 21 Ms Mastrangioli alleged that Ms McIntyre said "there is a growing feeling amongst the staff that you are manipulative". Later in those particulars Ms Mastrangioli claims to have informed Ms McIntyre of intending to look after her dying father and that Ms McIntyre responded by saying "don't be stupid – you can't do that". Ms McIntyre had no recollection of such statements being made by her and I accept that they are unlikely to have been made. It is possible that Ms McIntyre may have made a comment about the difficulty of Ms Mastrangioli looking after her dying father. If it had been said, it is likely to have been said out of concern for Ms Mastrangioli rather than an intention to inflict harm upon her. 30 In paragraph 22 of the amended statement of claim Ms Mastrangioli made allegations about having to do a medications calculation exam in the bathroom of a laboratory. Ms Mastrangioli and Ms Hughes both gave evidence that they had not seen the bathroom ever used for examinations and that it was an inconvenient place for an examination to be held. In contrast, however, both Ms Allison and Ms Hallisey gave evidence of the bathroom being used by other students to undertake exams and that there was nothing particularly directed to cause harm or any discrimination to Ms Mastrangioli in requiring her to sit an exam in that space. The evidence was also that the "bathroom" was not used as an operating bathroom but that it was part of the teaching space and was not plumbed. Ms Allison said that the bathroom was frequently used for doing tests as a matter of convenience because of the number of students who had to be accommodated from time to time. 31 In paragraph 23 of the amended statement of claim Ms Mastrangioli complained that Ms Peck, during class in the subject "Nursing Care to Older Clients", asked everyone to put down their pens because she wanted everyone to listen rather than to write. Ms Mastrangioli accepted that the direction had been made to all students but came to regard it as one directed only to her because, it seems, she was the only one who had not complied with the general request. Ms Mastrangioli next attributed to Ms Peck's request the motive of not wanting Ms Mastrangioli to do well in an exam in the subject which Ms Peck was teaching. Ms Peck could not recall the particular instance but conceded that it probably happened because it was her teaching style to require students to concentrate on what she was saying rather than to be writing. Ms Peck's evidence was that she asked students to put their pens down because presentation slides she used covered their homework and she wanted them independently to research that information for themselves. Ms Mastrangioli's evidence did not make out her claim: she conceded that any request had been to the entire class and, if repeated when Ms Mastrangioli was the only person writing, it would have been because the general request had been complied with by all except her. In cross-examination Ms Mastrangioli said: Counsel: The request would have been made because you were still writing? Ms Mastrangioli: At that particular time. The request continued to be made until I put my pen down. That's right?...it did not stop And that..?..I kept going your Honour. It kept going. Now, I need you to understand for the whole year the whole year every single lesson I would write every single thing down. It never stopped. Okay? And I needed those things; I used them. They were great. Okay? Now, when Jan Jan Peck kept going with, put your pens down. Put your pens down. Put your pens down, til it got to the stage this is why it sticks in my head until it got to the stage where I actually looked around and thought, is she talking to me? And not only was she looking at me, but some of the students were looking at me too. At that point I put my pen down. Okay? Then I realised and I picked it up again. Okay? And I acknowledge that perhaps it's a bit rude. Alright? I didn't do it to be rude; I did it because it made me feel better. That's it. Ms Mastrangioli then gave evidence to show how the things that she had written down in the lecture were the things which came up for examination. However, it is clear that Ms Peck's request for pens to be put down was based upon her pedagogical views and not in any way directed against Ms Mastrangioli or to cause any harm to Ms Mastrangioli. In examination-in-chief Ms Peck said: Counsel: Ms Mastrangioli alleges that during a subject, "care of the older person" when you were covering a topic within that subject, the effect of aging, you asked students to put their pens down. Do you recall asking students to put their pens down in such a class? Ms Peck: Yes, I have in the past, yes. Counsel: And can you tell the court why you would have done that? Ms Peck: The workbook that they have for the older person has sections in it where they've got to do homework and the slides that I was putting up were actually covering that homework. So I didn't want them to – to cheat on their homework. I wanted them to go out and find that information for themselves, because finding that information more often than not assists with their learning process and, yes, basically that. So often I will turn around and go through those slides incredibly quickly or I might even have the slides up and be wanting them to pay attention to what I'm saying. So it's more a discussion so as they can sort of follow – it's not about verbatim, remembering everything. It's about having an understanding as to what's gone on. In that context Ms Peck candidly conceded that she may well have made a direct request for Ms Mastrangioli to put down her pen but that in doing so it was based upon her pedagogical objectives and not for the reasons alleged by Ms Mastrangioli. I accept the evidence of Ms Peck and conclude that the claim by Ms Mastrangioli is not established. 32 In paragraph 26 of the amended statement of claim Ms Mastrangioli alleged that Ms Allison had made fun of Ms Mastrangioli about her bag. Ms Allison's evidence-in-chief was, in stark contrast, that she was completely indifferent to what the students did with their bags unless it was interrupting others. Her view was that the students were adult learners and that they were free to do whatever they liked with their bags: Counsel: Ms Mastrangioli also alleges that you yelled at her and made fun of her in relation to her bag during classes. Could you please respond to that allegation to his Honour? Ms Allison: I deny that outright. Them having their bags on the table, couldn't have cared less. Most time – I mean most students – every student would bring their bag into the classroom. It's not like a high school where you've got a locker when you can leave your belongings. So as adult learners, they would come in with their bags. A lot of them would unload, put everything down, and put their bag either underneath their chair, underneath their table, in front of their table, or behind their table. If they chose to leave it on the table, I'm not sure how she would have fitted the room, to be honest, because she had a big A4 folder that her notes were in, as did every student. So with having that as well as a textbook, as well as some pens, and most of them used to have a bottle of water or something. There's not really enough room to leave your bag there. But if they choose to, I couldn't have cared less. They're adult learners, and I told them, and I would regularly tell them. If they want to sit down the back and play games on their phone or send text messages while I'm trying to teach them, unless they were interrupting somebody else's learning, I didn't respond. I would have students come to me and say, "They're playing on their phone" or "They're passing notes", and it's like this isn't high school. It's not even primary school. You're adult learners; you're here supposedly because you choose to be here. And if you choose not to learn – this may be the wrong way for me to put it, but I get paid whether you pass or not. I'm here to do a job, I will do the best I can to ensure that you pass. But if you come to class and choose not to listen and learn from what I have to say, as long as you're not interfering with anyone else's learning, then I will not interrupt. However, if it is affecting other people's learning, as some people would start to get a bit rowdy, I would ask them to leave. But as far as having a bag on the table, I couldn't have cared less, because that had no bearing or impact on my ability to teach or – my reasoning, I wouldn't – I don't believe I ever even considered them. The only time they did not have – or allowed to have a bag specifically on the table was during a test. And that was every student categorically across the board. They were allowed their test paper; scrap paper, as long as they showed us there was nothing written on it. They were allowed to have scrap paper if they wanted to write things down or particularly with the drugs calcs, that they could use that as paper for their workings out. And we used to tell them, "Have a couple of pens, have a bottle of water, scrap paper if you need it. That's it. Once the test starts, you cannot go into your bag." So if your pen runs out and you haven't got a second one, bad luck. The matter was taken up again in cross-examination by Ms Mastrangioli in which there were striking differences in their respective recollection of events. Ms Mastrangioli, for example, contended that Ms Allison had made fun of her on more than one occasion but Ms Allison controverted that by pointing out that she, Ms Allison, had only ever taught Ms Mastrangioli once: Ms Mastrangioli: Oh, goodness me. Okay. Yesterday, we had a student called Sunnye Hughes from our class and she came in and she gave evidence. She – I did mention in my statement of claim that – that you had raised your voice to me a few times. I mentioned the bag incidents as I also mentioned the exam incidents. You were only my teacher, I think it was probably, maybe three times. I can't remember it very often. She gave evidence in relation to a medications teacher who had – who had raised her voice to me and spoken to me harshly. Would you accept that that person is you? Ms Allison: Well, a medications teacher, there could have been any one of 12 people. The only - - -?---I – if I've – as you can see – I've been told, the microphone is on. I am a loud person. If that's interpreted as being yelling or intimidating or making fun of, then that is the other person's interpretation. That's not my fault if that's how they interpret that. I am that. However, the timetable that shows who taught the classes that you were in shows that I taught you once. So, if I've only taught you once, how is it that I could have on numerous occasions, made fun of you about your bag? Why would I make fun of you about your bag? Why – for what purpose would I have for that? Ms Mastrangioli: I would say that you were my teacher more than once and in my complaint – I'm going to ask you again – I – I – I made allegations about you 5 in my statement of claim, okay. Sunnye Hughes came here and she confirmed – she didn't identify you – but she confirmed that there was a medications teacher who had spoken to me harshly. Now given that your name is the only medications teacher that I've placed in here, can you acknowledge that that person was you? Ms Allison: I'm not the only medications teacher that you've put in there. Tanya Hallisay, who was the one that took you for the test, is a medications teacher. As I say, there were at least 12 teachers that I dealt with at any given time. So, I'm sorry, if that student did not mention me by name, then how can you prove that it was me? Ms Allison's recollection of events is the more probable and supported, as it is, by the accuracy of her evidence in respect of the hurdle requirement test to which I have referred previously. In any event, the facts alleged would be insufficient to sustain a cause of action even if I preferred the testimony of Ms Mastrangioli. 33 Paragraph 27 of the amended statement of claim contains another allegation against Ms Allison; in this instance that Ms Allison had said publicly that if Ms Mastrangioli did not hand in work by the next class she would fail the entire subject. Ms Allison denied that she did, or would, have made such a statement in the presence of others and I accept that testimony. All of the teaching staff at Chisholm gave evidence of a practice of raising such matters privately with students rather than publicly. Ms Allison did say that on occasion a student might be asked to approach her desk and that there might be some discussion with a student about performance whilst other students were around but that is materially different from Ms Mastrangioli's allegation against Ms Allison which is not made out. 34 Paragraphs 31, 35, 36, 37, 38 and 39 of the amended statement of claim contain a series of allegations concerning her placement at Casey to which I have already referred in part. The allegations ranged from one of her having been placed at Casey in 2008 so that she would fail, to such specific complaints as inappropriately being tested about how much children's strength Panadol was to be used to medicate a fully grown adult. None of the allegations are made out on the evidence. All of the witnesses gave evidence of not having known that Ms Mastrangioli had been a patient at Casey and that they did not know of, and had not seen, the information which had been put on the Internet. Furthermore, much of the behaviour of those concerned at Chisholm was directly contrary to the motive which Ms Mastrangioli attributed to the individuals concerned. She had failed in 2008 and, therefore, if (as she contended) they had wanted to ensure that her studies did not succeed, they need not have taken any step to encourage her to complete her course. On the contrary, however, it was Ms McIntyre who in January 2009 wrote to Ms Mastrangioli enquiring about her intentions to complete the course. It was also the teachers who were alleged by her to have the intention of causing her not to complete her course, who (contrary to her allegation) took steps to assist her in the process of completing the course; and she was given the opportunity to complete the course in 2010 even when she failed the medications exam in 2009. 35 Ms Mastrangioli also complained that the Casey placement lacked structure, but the evidence of Ms Collins was to the contrary. Casey was a known hospital used by Chisholm and none of those involved in arranging Ms Mastrangioli's placement there did so with any knowledge of Ms Mastrangioli's previous time there as a patient. Ms Collins had been her supervisor at Casey and gave evidence, which I accept, that she had no idea that Ms Mastrangioli had been a patient at Casey and could not have known it. The "Panadol incident" was explained by Ms Collins as a routine situation: Counsel: Now, allegations have been made about an incident where you asked Ms Mastrangioli to calculate and administer medication to a patient. I understand it was Panadol? Ms Collins: Yes. Counsel: Do you recall this incident? Ms Collins: Yes. Counsel: Can you please tell the judge what you recall about this incident? Ms Collins: So the patient was due to receive some paracetamol, and we would have gone into the room to look for the paracetamol, and obviously we were going to be giving liquid paracetamol, and we needed to find what that was. And when you're giving liquid paracetamol to a patient, it is a larger volume than just giving, say, two tablets of paracetamol because the dose has to be calculated accordingly. Counsel: Why do you say that you needed to give the patient liquid Panadol? Ms Collins: It was – would have been based on what the patient's history was and that they could potentially not swallow tablets. Counsel: Okay. And again you said "would have". Do you specifically recall? Ms Collins: No. Counsel: Do you specifically recall whether it needed to be liquid or a tablet form? Ms Collins: Without seeing the patient's history, no. Counsel: Okay. Ms Mastrangioli alleges that you led her into a room and asked her to locate medication for the patient. Do you remember that - - -? Ms Collins: Yes. Counsel:- - - happening? And are you able to tell the judge what happened in that room? Ms Collins: Limited knowledge, but I can remember going – we went into the room to look for the medication, and I can remember her seeking to find the medication and was struggling to find the medication, so I would have been asking her what she was going to do about it – to how she was going to locate that medication to give to the patient. Counsel: Was this room a medications room or a separate sort of room? Ms Collins: It was probably a medications room, but we do sometimes have more than one room as well. Counsel: Yes. Is it possible for medications to be stored in rooms other than the medication room? Ms Collins: Yes. Sometimes they are stored adjacent or in, say, a separate room or a separate cupboard. Counsel: And are nursing students expected to be able to find and locate medicines whether they're in a medicine room or in another room? Ms Collins: Yes. Counsel: In your experience? Ms Collins: Yes. Counsel: Now, it's alleged that in that room – Ms Mastrangioli alleges that you said to her in a mocking tone, "What are you going to do, Johanna? The patient is waiting." Do you recall saying that? Ms Collins: No, but I deny that I would speak in a mocking tone. Counsel: Why do you say that? Ms Collins: Just not in my professional behaviour to – to act like that as – as an educator. Counsel: Ms Mastrangioli claims that liquid Panadol, liquid children's Panadol, is not a product that should be found in an acute care ward or a hospital. What do you say about that? Ms Collins: That's incorrect, because liquid Panadol is given to patients within an adult setting. The paracetamol in itself is still the same drug or same medication, be it children's or an adult. It's just the concentration is different. So we administer accordingly the amount that's required by the doctor. Counsel: And is that calculation one that nursing students are expected to make? Ms Collins: Yes. So they would learn those calculations while at TAFE or at their institution, and then obviously while they're on clinical placement, we would be ensuring that they can carry out making those equations to calculate the correct amount of medication required for the patient. Ms Collins failed Ms Mastrangioli in the placement for the reasons as set out in the assessment tool and the report which Ms Collins sent to Ms McIntyre, and not for the reasons alleged by Ms Mastrangioli. Ms Mastrangioli in part accepted that she had a problem taking respirations and had forgotten to calibrate a machine on one occasion. The evidence falls well short of establishing the complaints. 36 In paragraph 41 of the amended statement of claim Ms Mastrangioli complained that Ms McIntyre failed to make contact with Ms Mastrangioli in June 2009 regarding the then proposed placement to complete her nursing course. A subsequent amendment to the paragraph added a complaint that no placement had ever been arranged for her to attend at the time. There is no evidence that the placement did not exist and such evidence as there is about the proposed placements is that it was in place. On 27 August 2009 Janice Graham, the then Clinical Placement Co-ordinator, wrote to Ms Mastrangioli informing her that she was booked in for an acute care clinical placement at "The Valley Hospital" for two weeks from 21 September 2009 to 2 October 2009. The letter indicated, however, that Ms Mastrangioli was required to sign the clinical contract for Ms Graham to send the paperwork to the clinical teacher and the venue. An internal email from Ms Graham to Ms Ann Moates on 26 August 2009 informed Ms Moates that Ms Graham had been trying to contact Ms Mastrangioli to make up a two week acute care placement at "The Valley". That email indicated that the suggestion of The Valley for the placement had been made by Ms McIntyre in notes by her upon her retirement for her successor. The other complaint concerning failures to return phone calls in June 2009 are to some extent justified and were partially accepted by Ms McIntyre, however, it coincided with actual difficulties which various members at Chisholm had experienced in attempts to make contact with Ms Mastrangioli on various telephone numbers she had given and to email addresses which she had given them. Ms Mastrangioli had met with Ms McIntyre in January 2009 but Ms Mastrangioli did not make contact again with Ms McIntyre until May. A meeting was then arranged within seven days. Such delay is not significant or evidence of any inappropriate behaviour. 37 Paragraph 42 of the amended statement of claim alleged that Ms Peck had failed to return Ms Mastrangioli's telephone calls or emails in July 2009. Chisholm conceded that Ms Peck had not returned Ms Mastrangioli's calls and had not emailed in response. Unsatisfactory as that delay may be, it does not establish discrimination as alleged. Her failure to respond during that time is in part explained, if not excused as a matter of administration or politeness, by the fact that Ms Peck had just taken over some of the duties upon Ms McIntyre's retirement. Ms Peck gave evidence that she received many emails daily and did not always respond in a timely manner. The failure to respond was not, however, because she was aware of Ms Mastrangioli's medical records or because she had been imputing a disability to Ms Mastrangioli. 38 In paragraph 44 of the amended statement of claim Ms Mastrangioli complained about the hurdle requirement test which she undertook on 8 September 2009 to which I have already referred. Ms Mastrangioli conceded the importance of drug calculations for the ongoing duties of a nurse but contended that the hurdle requirement test was an instance of discrimination, harassment, unjustifiable hardship, and intentional infliction of mental and economic harm upon her. I will not repeat my findings in respect of the hurdle requirement test other than to note that the reason Ms Mastrangioli failed the hurdle requirement test was that she did not achieve 100% on the drug calculations component as she was required to obtain in order to pass. Ms Allison conceded that her email to Ms Mastrangioli, with the benefit of hindsight, should have reminded Ms Mastrangioli that she needed to obtain 100% of the drug calcculations component but otherwise needed to obtain a grade of 65% of the whole test. In fact Ms Mastrangioli obtained a 70% pass but did not obtain 100% on the drug calculations component. She may not have passed the test because she may have had a mistaken belief that she did not need to obtain 100% on the drug calculations component but it was well known amongst those in the course that the drug calculations component always required a 100% pass rate, and, in any event, any such error does not amount to actionable discrimination or to any of the other causes of action which may have been raised. 39 Paragraph 45 of the amended statement of claim complained that the Chisholm complaints department took more than a month, namely until October 2009, to deal with her complaint and to inform her that, as she expressed it in her amended statement of claim, she had "achieved a result greater than 65% I think it was 70%". In fact Ms Mastrangioli made a complaint on the very day she sat, and was told that she had failed, the hurdle requirement test. That complaint was made to a Mr Posetti who was leaving at the end of the week and who informed Ms Mastrangioli that it would be dealt with by Ms Katie Dillon. Ms Mastrangioli was offered to re-sit the test in the following year but rejected the offer. She was also given an opportunity to make a formal complaint to Chisholm but that was also rejected. The offers by Chisholm having been made, and Ms Mastrangioli's rejection of the offers, tell against her complaints of discrimination by Chisholm. 40 Paragraph 47 of the amended statement of claim contended that Chisholm was instrumental in preventing her from completing her course through another institution, namely, Care Training Australia ("CTA"). Ms Mastrangioli attempted to complete her course with CTA and had met with a Mr Ian Spargo who had given her some hopes of being able to complete her course through CTA. That has not happened because, as alleged, Mr Spargo has not returned her calls. Ms Hallisey worked with CTA and was asked about her knowledge of any application by Ms Mastrangioli to complete her course with Care Training Australia or whether Ms Hallisey had said anything to anyone at CTA about Ms Mastrangioli's circumstances. Ms Hallisey had been the person who had supervised Ms Mastrangioli's hurdle requirement test and was a friend and business associate of Ms Allison. Ms Hallisey gave evidence that she was not aware that Ms Mastrangioli had applied to CTA and would not have been privy to information of that kind in the role that she had as a sessional or casual teacher at CTA. She has since set up her own business as an education consultant and has stopped being available for work at CTA. Ms Mastrangioli did not call anyone from CTA to give evidence and there is no basis for establishing any breach of the kind alleged by Ms Mastrangioli in respect of her failure to secure her attempts to complete her course through Care Training Australia. 41 Paragraph 53 of the amended statement of claim alleged that Chisholm accessed the medical records of Ms Mastrangioli which had been placed on the Internet to obtain private information to place her in Ward D at Casey. For the reasons previously set out this allegation is contradicted by the evidence and, therefore, not established. 42 Counsel for Chisholm provided helpful submissions concerning the applicable law together with an analysis of the potential causes of action that may have been raised upon the facts alleged by Ms Mastrangioli if found. The submissions included such helpful considerations as whether there is currently a tort of privacy as part of the common law in Australia: see Australian Broadcasting Corporation v Lenah Game & Meats Pty Ltd (2001) 2008 CLR 199 at 258 [132]. The submissions were in large part a helpful attempt to deal with potential causes of action in the event that the facts required that they be considered, but no useful purpose would be served in dealing with them. The case put by Ms Mastrangioli depended upon the factual foundation that her medical records were known by those who had behaved in the way contended and that it was her condition that explained what was said to be discriminatory behaviour. That fact is not made out, nor are the other factual allegations concerning intention to cause harm and breach of private or confidential information. 43 Accordingly the proceeding will be dismissed but I will hear the parties on the question of costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 13 February 2014