Hastwell v Federal Court of Australia and The Judges Thereof & Anor

[2021] HCATrans 161

[2021] HCATrans 161

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P22 of 2021

B e t w e e n -

HAYDYN HASTWELL

Plaintiff

and

FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF

First Defendant

KOTT GUNNING

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON WEDNESDAY, 13 OCTOBER 2021, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   By application filed on 21 July 2021, the plaintiff applies for constitutional or other writs.  For the reasons that I now publish I would dismiss the application.  The orders are:

1.The plaintiff’s application for constitutional or other writs filed on 21 July 2021 be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff pay the costs of the second defendant.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

This is an application by the second defendant, Kott Gunning, for the summary dismissal of a proceeding brought by the plaintiff, Mr Hastwell, in the original jurisdiction of this Court. Mr Hastwell’s proceeding generally seeks to relitigate issues raised in an interlocutory stay application before the Federal Court of Australia, and in an application for leave to appeal from a decision on that interlocutory application before the Full Court of the Federal Court of Australia.  In the interlocutory stay application, an order was made for Mr Hastwell’s primary proceeding in the Federal Court to be “permanently” stayed.  Whether an interlocutory order for a stay is accurately described as “permanent” is presently unnecessary to decide.

The primary proceeding in the Federal Court, commenced by Mr Hastwell on 12 May 2017, was described by the primary judge in the Federal Court as one for “damages for unlawful bullying, harassment and discrimination, which [Mr Hastwell] alleges took place while he was employed by Kott Gunning”[1].  As the Full Court explained in its reasons, Mr Hastwell’s contentions included that he was subjected to bullying and other mistreatment whilst employed by Kott Gunning primarily because of his sexual preference[2].  The primary judge explained that one of Kott Gunning’s defences was that any anxiety or depression of Mr Hastwell was pre‑existing and that it was “clear that the state of Mr Hastwell’s mental health, before, during and after his employment with Kott Gunning, will be an issue at trial”[3].

[1]Hastwell v Kott Gunning [No 5] [2020] FCA 621 at [3], annexed to the affidavit of Mr Hastwell.

[2]Hastwell v Kott Gunning [2021] FCAFC 70 at [2], annexed to the affidavit of Mr Hastwell.

[3]Hastwell v Kott Gunning [No 5] [2020] FCA 621 at [14].

Kott Gunning’s defence that Mr Hastwell’s disabilities were due to a pre‑existing condition was, the Full Court held, one about which Kott Gunning bore the burden of adducing evidence[4].  During the course of privileged exchanges with Mr Hastwell, Kott Gunning became aware of a diagnosis by a Sydney psychiatrist that Mr Hastwell suffers from paranoia and delusional disorder, a diagnosis which is disputed by Mr Hastwell[5].  Kott Gunning relied on evidence of the contents of that report to establish that they had a proper basis to seek to obtain psychiatric evidence[6].  On the interlocutory stay application, Kott Gunning also put into evidence medical records from Mr Hastwell’s general practitioner which, the judge on that application held, suggested that, before Mr Hastwell commenced employment with Kott Gunning, he suffered from “generalised anxiety disorder” and contained descriptions such as “longstanding (5 years)” and “keen for psychology input”[7].

[4]Hastwell v Kott Gunning [2021] FCAFC 70 at [48].

[5]Hastwell v Kott Gunning [2021] FCAFC 70 at [4].

[6]Hastwell v Kott Gunning [No 5] [2020] FCA 621 at [25]‑[28].

[7]Hastwell v Kott Gunning [No 5] [2020] FCA 621 at [10].

The primary judge in the Federal Court explained[8] that on 8 April 2019, orders were made by the Court for Mr Hastwell to file and serve any medical expert evidence upon which he intended to rely and then for Kott Gunning to notify him within 14 days of service of that evidence if it required him to attend any medical examinations by a practitioner or practitioners nominated by them.  Mr Hastwell served his medical evidence on 24 July 2019.  On the same day, Kott Gunning wrote to Mr Hastwell saying that, pursuant to the orders, it required him to be examined on any one of five dates in September 2019 by a named psychiatrist.

[8]Hastwell v Kott Gunning [No 5] [2020] FCA 621 at [29].

After non‑compliance by Mr Hastwell with the order that he be medically examined, conduct that the Full Court described[9] as “persistent refusal for many months”, on 11 May 2020, the primary judge ordered that the proceeding be stayed on and from 8 June 2020, with liberty for either party to apply at any time before 2 June 2020 to vary the order.  The delay was provided to allow for a period for Mr Hastwell to comply with the orders for medical examination.  The stay order took effect on 8 June 2020.

[9]Hastwell v Kott Gunning [2021] FCAFC 70 at [5].

Mr Hastwell sought leave to appeal the stay order to the Full Court of the Federal Court.  After hearing the application for leave to appeal from the decision of the primary judge, together with full argument on the proposed grounds of appeal, on 13 May 2021 the Full Court dismissed the application for leave to appeal[10].  Mr Hastwell could not bring an application for special leave to appeal to this Court because this Court has no jurisdiction to hear an application for special leave to appeal from the dismissal by the Full Court of the Federal Court of an application for leave to appeal[11].

[10]Hastwell v Kott Gunning [2021] FCAFC 70.

[11]Federal Court of Australia Act 1976 (Cth), s 33(4B)(a).

On 21 July 2021, having exhausted the processes for applications for leave to appeal or to appeal, Mr Hastwell brought the present application in the original jurisdiction of this Court for a constitutional or other writ. Apart from costs, the specific relief he sought was writs of certiorari to quash the decisions of the Federal Court of Australia and the Full Court of the Federal Court of Australia, declarations, and an extension of time under r 25.02.2(a) of the High Court Rules 2004 (Cth). As Mr Hastwell explained in his affidavit, he relied upon the same 14 grounds for his application in the original jurisdiction of this Court as his 14 proposed appeal grounds in an application for special leave that he drafted but did not attempt to file.

It will generally be an abuse of process for a plaintiff to commence a proceeding in the original jurisdiction of this Court where the nature of the plaintiff’s application in this Court, although expressed as one for judicial review, is amenable to appeal, whether or not the appeal is subject to a requirement of leave[12]. The same is true where the application is in substance an attempt to relitigate issues for which the appeal process has concluded without further reason. Rule 25.09.1 of the High Court Rules 2004 (Cth) empowers this Court to dismiss an application without listing it for hearing on the basis that the application is an abuse of the process of the Court. This application bears all of the hallmarks of such an abuse of process as an attempt, without more, to relitigate issues for which the appeal process, or leave to appeal process, has concluded. However, the second defendant, Kott Gunning, does not allege that Mr Hastwell’s proceeding in this Court is an abuse of process.

[12]Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367; Dimitrov v Supreme Court (Vic) (2017) 263 CLR 130 at 138‑139 [19]; KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666 at 669 [3]; 392 ALR 186 at 188.

Kott Gunning seeks to have Mr Hastwell’s proceeding in this Court dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) on the basis that it does not disclose an arguable basis for the relief sought or, alternatively, under r 28.01.2 on the basis that it has no reasonable prospects of success. It is unnecessary to explore the precise differences between these two bases for relief. It suffices to focus upon whether Mr Hastwell’s proceeding in the original jurisdiction of this Court discloses an arguable basis for the relief sought. An arguable basis for relief does not extend to any argument at all that might be made, no matter how hopeless. It requires that the argument have some prospect, even if only a small prospect, of success.

Kott Gunning submits that there is no arguable basis to conclude, or no reasonable prospects of successfully establishing, that the Full Court erred in dismissing Mr Hastwell’s application for leave to appeal.  Moreover, Kott Gunning submits that even if there were some legal error in the decision of the Full Court there is no arguable basis to conclude that the error was one that invalidated the decision of the Full Court, or, in the case of a non‑jurisdictional error of law on the face of the record, could cause the decision to be invalidated, so as to permit a writ of certiorari to issue. And all of that reasoning assumes, for the sake of this proceeding, the authority of this Court to consider the issue of a writ of certiorari where it is not ancillary to any other relief to which reference is made in s 75(v) of the Constitution[13].

[13]See Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 142 [60] and the references in the footnote to that paragraph.

In very broad terms, Mr Hastwell’s 14 grounds of relief in this Court generally replicate those in the Full Court. Mr Hastwell’s grounds are as follows: (i) alleged error by the Full Court in failing to find that leave to appeal was not required; (ii) alleged errors by the primary judge and by the Full Court in finding that there was jurisdiction to order a permanent stay of the proceeding; (iii) alleged errors by the primary judge and the Full Court in relation to the finding that it was open for Kott Gunning to put a case that any anxiety or depression was pre‑existing; (iv) alleged errors by the primary judge and the Full Court in relation to whether it was necessary for Mr Hastwell to have a psychiatric examination by a psychiatrist nominated by Kott Gunning; (v), (vi), (vii), (viii), (ix), and (x) alleged errors by the primary judge and the Full Court concerning ss 75, 79, 108C, 192, 135, and 138 of the Evidence Act 1995 (Cth); (xi) an apprehension of bias by the primary judge and error by the Full Court in failing to find that there was such an apprehension of bias; (xii) alleged errors by the primary judge and the Full Court in failing to find that a permanent stay of the proceeding was an unjust or an inappropriate determination of the cause and an error in the exercise of discretion, or that the discretion miscarried; (xiii) alleged errors by the primary judge and the Full Court in the factual findings that Mr Hastwell had refused to submit to be medically examined; (xiv) alleged errors by the primary judge and the Full Court in ordering a stay of the proceeding in light of the unreasonableness of Kott Gunning’s request for Mr Hastwell to be medically examined.

Each of these grounds was considered and rejected by either or both of the primary judge and the Full Court.  I have considered the reasons of the primary judge and the Full Court as well as Mr Hastwell’s submissions in this Court.  Mr Hastwell’s application, his affidavit evidence, and his submissions provide no arguable basis to conclude that the Full Court’s reasons contain any jurisdictional error or, even if the reasons of the Full Court were to be treated as forming part of the record[14], any error of law on the face of the record.  Mr Hastwell has no arguable basis for the relief he seeks in this Court.

[14]cf Craig v South Australia (1995) 184 CLR 163 at 180‑183.

Further, and in any event, Mr Hastwell has no arguable basis for the relief he seeks because the circumstances of this case are not sufficiently exceptional to justify the substantial extension of time that he requires.  In order for Mr Hastwell’s application to succeed, it would be necessary for him to set aside the decision of the primary judge in the Federal Court and the decision of the Full Court.  An extension of time of more than 8 months is required for a writ of certiorari to issue to quash the decision of the primary judge in the Federal Court proceeding[15].  It could only be in exceptional circumstances in which an extension of time would be granted where a substantial part of the period of delay was while a plaintiff pursued a separate proceeding ‑ here an application for leave to appeal ‑ to set aside the decision that is now challenged.  Although the merits of an application can be a factor in assessing whether the circumstances are sufficiently exceptional, even if Mr Hastwell’s case were slightly arguable (which it is not), that would not be sufficient to extend time.

[15]High Court Rules 2004 (Cth), r 25.02.2(a).

Mr Hastwell filed affidavit evidence and substantial written submissions in this Court. There is no basis in Mr Hastwell’s case or in any of those materials to infer that there is any prospect that an oral hearing might further advance Mr Hastwell’s case. The plaintiff’s application for constitutional or other writs, filed on 21 July 2021, should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). The plaintiff must pay the costs of the second defendant.

The Court will now adjourn until 10.00 am Canberra time.

AT 9.32 AM THE MATTER WAS CONCLUDED