Lawrance v Ca**th of Aust.; La wrance v AAT
[2007] FMCA 1478
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v CTH OF AUST. & ORS; LAWRANCE v AAT & ORS | [2007] FMCA 1478 |
| HUMAN RIGHTS – Interlocutory orders – discovery, joinder, injunctions – no joinder of body not respondent to HREOC complaint. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH, 46PO, 46PP, 46PR Federal Magistrates Act 1999 (Cth), ss.8(3), 15, 42, 45 Federal Court of Australia Act 1976 (Cth), Part IVA Federal Magistrate Court Rules 2001, rr.13.10, 11.01(1), 14.02 |
| Shaw v Smith (1886) 18 QBD 193 Molloy v Kilby (1880) 15 Ch D 162 Grumbrecht v Parry (1884) 32 WR 558 Attorney-General v North Metropolitan Tramways Co (1895) 72 LT 340 Carmody v Mackellar & Ors (1996) 68 FCR 265 NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271 Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78 Mulley v Manifold (1959) 103 CLR 341 American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193 Lawrance v Commonwealth of Australia [2006] FMCA 1792 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu & Ors (2000) 171 ALR 341 United States Tobacco Company v Minister for Consumer Affairs & Anor (1988) 79 ALR 430 Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 74 ALR 505 Australian Broadcasting Corporation v O’Neill (No H1/2006) (2006) 229 ALR 457 Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 CPSU, The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176 Oshlack v Richmond River Council (1998) 193 CLR 72 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | CENTRELINK |
| Third Respondent: | JOBFIND CENTRES AUSTRALIA PTY LTD |
| Fourth Respondent: | DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| Fifth Respondent: | DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS |
| Sixth Respondent: | CRS AUSTRALIA |
| Seventh Respondent: | STATE OF NEW SOUTH WALES |
| File number: | SYG 2109 of 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms D. Watson of Australian Government Solicitor (for the 1st, 2nd, 4th, 5th, 6th respondents) Mr L. Lozina of Dibbs Abbott Stillman (for the 3rd respondent) Ms E. Mee of Crown Solicitors Office (for the 7th respondent) |
| Counsel for the Respondents: | Mr Moorhouse (for the 7th respondent) |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| Third Respondent: | SENIOR MEMBER ALLEN |
| Fourth Respondent: | SENIOR MEMBER KELLY |
| Fifth Respondent: | SENIOR MEMBER ISENBERG |
| Sixth Respondent: | DEPUTY PRESIDENT PURVIS |
| Seventh Respondent: | STEPHEN SHEPHERD |
| Eighth Respondent: | KIM RICHARDSON |
| Ninth Respondent: | PREETHI NIMMAGADDA |
| Tenth Respondent: | STATE OF NEW SOUTH WALES |
| Eleventh Respondent: | NEW SOUTH WALES GUARDIANSHIP TRIBUNAL |
| Twelfth Respondent: | CRS AUSTRALIA |
| Thirteenth Respondent: | DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| Fourteenth Respondent: | ANDRAS MARKUS |
| Fifteenth Respondent: | JUDY POWNALL |
| Sixteenth Respondent: | AUSTRALIAN GOVERNMENT SOLICITOR |
| Seventeenth Respondent: | ANNETTE O’NEILL |
| Eighteenth Respondent: | BEV SMITH |
| File number: | SYG 655 of 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for Respondents: | Ms D. Watson of Australian Government Solicitor (for the 1st – 9th, 12th – 18th respondents) Mr E. Mee of Crown Solicitors Office (for the 10th and 11th respondents) |
| Counsel for Respondents: | Mr Moorhouse (for the 10th and 11th respondents) |
| Judgment of: | Turner FM |
| Hearing date: | 27 April 2007 |
| Date of last submission: | 27 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2007 |
ORDERS
The application for discovery is dismissed except in relation to the third respondent in SYG 2109/2006 as detailed in the decision.
The application for joinder of the Guardianship Tribunal of NSW in SYG 2109/2006 is dismissed.
The applications for injunctions are dismissed.
The claim for a special benefit is dismissed.
Costs to be costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2109 of 2006
| AROHA LAWRANCE |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| CENTRELINK |
Second Respondent
| JOBFIND CENTRES AUSTRALIA PTY LTD |
Third Respondent
| DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Fourth Respondent
| DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS |
Fifth Respondent
| CRS AUSTRALIA |
Sixth Respondent
| STATE OF NEW SOUTH WALES |
Seventh Respondent
SYG 655 of 2007
| AROHA LAWRANCE |
Applicant
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
| SENIOR MEMBER ALLEN |
Third Respondent
| SENIOR MEMBER KELLY |
Fourth Respondent
| SENIOR MEMBER ISENBERG |
Fifth Respondent
| DEPUTY PRESIDENT PURVIS |
Sixth Respondent
| STEPHEN SHEPHERD |
Seventh Respondent
| KIM RICHARDSON |
Eighth Respondent
| PREETHI NIMMAGADDA |
Ninth Respondent
| STATE OF NEW SOUTH WALES |
Tenth Respondent
| NEW SOUTH WALES GUARDIANSHIP TRIBUNAL |
Eleventh Respondent
| CRS AUSTRALIA |
Twelfth Respondent
| DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Thirteenth Respondent
| ANDRAS MARKUS |
Fourteenth Respondent
| JUDY POWNALL |
Fifteenth Respondent
| AUSTRALIAN GOVERNMENT SOLICITOR |
Sixteenth Respondent
| ANNETTE O’NEILL |
Seventeenth Respondent
| BEV SMITH |
Eighteenth Respondent
REASONS FOR JUDGMENT
Introduction
Matter SYG 2109/2006 was before the Court on 20 February 2007, when the applicant pursued a number of matters:
(1)Discovery;
(2)Joinder of the Guardianship Tribunal;
(3)Amendment of her application;
(4)Injunctions against the Commonwealth and the State of New South Wales restraining them from releasing information about the applicant;
(5)Injunctions against the Commonwealth and the State of New South Wales and “eligible service providers” restraining them from entering the applicant’s residence;
(6)An injunction against the State of New South Wales restraining it from administering medical treatment to the applicant;
(7)An injunction against the Guardianship Tribunal (NSW) restraining it from granting any form of Guardianship order covering the applicant;
(8)Injunctions requiring Centrelink and the Jobfind Centre to treat the applicant as a person who has no disability;
(9)A claim for a special benefit.
The decision was reserved on those matters.
On 16 February 2007, the State of New South Wales filed an application seeking summary dismissal of the applicant’s matters under Rule 13.10 of the Federal Magistrates Court Rules 2001 as far as they relate to the State of New South Wales and associated respondents. The hearing of that application was listed for 13 March 2007, when the Court ordered that matters SYG 2109/2006 and SYG 655/2007 be joined for hearing, and that the application for summary dismissal in both matters be heard on 19 April 2007. On that day the Court heard submissions from counsel for the State of New South Wales seeking summary dismissal of both matters. The applications for summary dismissal were adjourned for further hearing on 27 April 2007. By then, the first to ninth, and twelfth to seventeenth respondents (in SYG 655/2007) had filed a Notice of Motion seeking summary dismissal of the applicant’s applications. On 27 April 2007, those hearings were adjourned until after the Court delivered this decision on the reserved matters. On 14 May 2007, the applicant filed a Notice of Constitutional Matter in both matters. No Attorney-General has indicated an intention to intervene in the matters. The Court now proceeds to deal with the issues awaiting decision.
Discovery
The applicant has sought discovery of documents. On 12 October 2006 the Court ordered the applicant to file and serve by 12 December 2006 specific details of the orders for discovery which she seeks.
The applicant filed a document called “Particulars – Disclosure” on 12 December 2006. In that document the applicant set out details of whom she seeks an order for discovery against, and the documents sought.
Discovery is sought from:
·The Department of Families, Community Services (later the Department of Families, Community Services and Indigenous Affairs) (FACSIA);
·CRS Australia (CRS Australia comes under the Department of Human Services of the Australian Government and is a provider of vocational rehabilitation services);
·The Department of Health;
·The Guardianship Tribunal of NSW;
·Jobfind Centres;
·The Department of Employment and Workplace Relations; and
·Centrelink.
All of the respondents, with the exception of the Guardianship Tribunal which is not a respondent to these proceedings, were respondents to the application by the applicant to the Human Rights and Equal Opportunity Commission (“HREOC”) matter No. NSD 1211/2006.
The NSW Guardianship Tribunal is not a respondent to SYG 2109/2006. The applicant has applied for joinder to SYG 2109/2006. That application is rejected later in this decision.
The respondents to the application to HREOC were:
·The Commonwealth of Australia – Centrelink;
·The Commonwealth of Australia – Department of Employment and Workplace Relations;
·Angus Knight Group trading as Jobfind;
·The Commonwealth of Australia – CRS Australia;
·Mr. Trent Newton (employee of Centrelink Bondi Junction); and
·The State of New South Wales – Department of Health.
That matter was terminated by HREOC by notice issued on 29 May 2006 on the basis that:
·The alleged complaints are misconceived and lacking in substance, and
·That there is a more effective and convenient remedy available to the applicant in the Social Security Appeals Tribunal, and
·That the alleged discrimination is not unlawful discrimination, and
·That the alleged acts are not contrary to any human right, and
·One complaint was lodged out of time.
The applicant then lodged a claim in the Federal Court of Australia pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”) alleging unlawful discrimination by the respondents to the terminated complaint. The Guardianship Tribunal was not a respondent to the HREOC complaint or to the proceedings in the Federal Court.
By order of Stone J of the Federal Court the matter was transferred to this Court.
The respondents to the matter before this Court are the same as those in the Federal Court. The Guardianship Tribunal is not a respondent to the applications before this Court.
Discovery is a procedure between parties to an action and “extends to parties between whom there is some right to be adjusted or some question to be decided”:Shaw v Smith (1886) 18 QBD 193; Molloy v Kilby (1880) 15 Ch D 162.
“Interrogatories which are prolix or oppressive will not be allowed”: Grumbrecht v Parry (1884) 32 WR 558. This principle was applied to discovery in Attorney-General v North Metropolitan Tramways Co (1895) 72 LT 340.
Section 45 of the Federal Magistrates Act 1999 (“Federal Magistrates Act”) provides as follows:
(1)Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2)In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.
Discovery is therefore not allowed unless the Court decides that it “is in the interests of the administration of justice”. In deciding whether ordering discovery is in the interests of the administration of justice, the Court must have regard to:
(a)whether allowing discovery would be likely to contribute to:
- the fair and
- expeditious conduct of proceedings, and
(b)such other matters (if any) that the Court thinks relevant.
“Whether likely to contribute to the fair and expeditious conduct of proceedings”
Regard must be had to what is fair conduct of the proceedings for each party. A balance must be achieved. If ordering discovery is fair to the conduct of the proceedings by one party, but unfair to the other, then this unfairness must be taken into account.
The Court finds that the discovery sought is prolix and oppressive. It would be unfair to the respondents, and would not be likely to contribute to the expeditious conduct of the proceedings.
Section 45 provides also that in deciding whether to declare that discovery is appropriate in the interests of the administration of justice, the Federal Magistrates Court
must have regard to such other matters if any as the Federal Magistrates Court considers relevant.
The words “matters that the Court considers relevant” are informed by s.42 of the Federal Magistrates Act, which provides that the Court “must endeavour to ensure that the proceedings are not protracted.” Ordering discovery here would prolong the proceedings.
Further, the tests for the ordering of discovery set out by Merkel J in Carmody v Mackellar & Ors (1996) 68 FCR 265 at 280 are considered relevant by the Court in these matters. They are:
·The Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;
·The proper exercise of the power depends upon the nature of each case and the stage of the proceedings at which discovery is sought;
·If a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;
·The evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;
·If there is not the slightest evidence or there is no other material to support the bare allegations in the proceeding, then as a general rule, an order for discovery ought not to be made.
The first dot point recognises that there is a discretionary power to order discovery. That discretion must be taken to be informed by the rebuttable presumption in s.45 of the Federal Magistrates Act that discovery will not be permitted in the Federal Magistrates Court: NAQR & Ors v Minister for Immigration (No 1) [2002] FMCA 271. That barrier does not exist in the Federal Court Act. The starting point therefore is that discovery will not be allowed in the Federal Magistrates Court in the normal course of events.
The second dot point states that the exercise of the discretion depends upon the nature of the case and the stage of the proceedings at which discovery is sought. In this case discovery is being sought at the directions stage; it is being sought early in the procedural stages in the proceedings, although much of the paperwork has been completed. The nature of the case is an application alleging unlawful discrimination by some respondents to a complaint terminated by HREOC, which found there was no evidence to support the allegations of the applicant, and that those allegations are of no substance. The Contentions of Fact and Law for the State of New South Wales contend that the claims have no reasonable prospect of success. That matter is being addressed in the applications for summary dismissal filed on 30 March and 2 April 2007.
The nature of the case here is one where there is no evidence of the matters alleged by the applicant, other than her assertions. The applicant described her case (as recorded in transcript of 19 April 2007 at page 32, line 13) as follows:
The other thing I would say is that, just briefly – is to explain that what I have done, ultimately, is make a certain allegation to say, “This must be what’s happening.” However, I don’t know, and whatever it is, it’s unlawful. It doesn’t comply with state legislation and it’s unlawfully discriminatory under federal legislation. That’s how my complaint needs to be looked at. Yes.
This case is not of a nature that inclines the Court towards ordering discovery.
The third dot point is that if proceedings are essentially speculative in nature, the Court will not order discovery in order to assist the applicant in a fishing exercise. “Speculation” is defined in the Shorter Oxford Dictionary as “characterised by speculation or theory in contrast to practice or positive knowledge,”; “Given to conjectural reasoning.”
The Court considers the case to be speculative, as it is based on conjecture and not positive knowledge. The discovery sought is a fishing exercise.
“Fishing expedition” was defined in Nestle Australia Limited v Commissioner of Taxation (1986) 10 FCR 78 as:
Seeking discovery of documents in the hope that they will reveal relevant evidence without any basis to believe that such evidence exists. In general discovery for this purpose is prohibited.
The discovery sought is a fishing exercise.
The fourth dot point is that the evidence required to show that a case is not essentially speculative will vary with the nature and circumstances of the case.
The last dot point is that if there is not the slightest evidence, or there is no material to support the bare allegations made in the proceeding, then as a general rule, no order for discovery ought to be made. The nature of the applicant’s material in these matters is comprised of bare allegations by the applicant.
The applicant submitted on 20 February 2007:
·(T17, line 40) “That it would be expeditious for me and for the Court to be…aware of the actual facts”.
·“It is fair to me…because I have established a prima facie case”.
·(T18, line 46) “fair…to have access…to be able to prove it…and that would establish…the existence of the program.”
·(T19, line 47) “It is very clear that my dwelling is being entered. I’d say it is by a health care agency or someone like that who – who normally deal with people who are poorly treated under the Health Act or whatever, I don’t know.”
·(T21, line 49) “I’m saying that it’s fair that I have access to this sort of information so that I can address the case that the respondents clearly say they have, but are not to date willing to tell me what it is they say they have.”
·(T24, line 5) “The public interest in not unlawfully discriminating against persons is of relevance…”
The applicant referred to the case of Mulley v Manifold (1959) 103 CLR 341. The Court finds that the relevant principle from that case is that discovery is a procedure directed towards obtaining a proper examination and determination of the matters at issue between the parties, and not towards assisting a party upon a fishing expedition (at para.7).
The State of New South Wales opposes discovery and relies on the affidavit of Blaise Robinson Lyons sworn on 16 February 2007 “to demonstrate the oppressive nature of the wide ranging request for discovery in relation to the State of New South Wales.” The Court finds that the discovery sought would place an unjust burden on each of the respondents: American Flange & Manufacturing Co Inc v Rheem (Australia) Pty Ltd (No 2) [1965] NSWR 193.
The applicant submitted that if the Court was to find that the discovery sought is oppressive it should allow such discovery as it considers reasonable. In her affidavit filed on 18 June 2007 (at page 73), the applicant seeks general discovery. That application does not satisfy any of the tests for discovery to be allowed in this matter, and it is rejected, except as set out below.
The Commonwealth opposed discovery also on the basis that it is oppressive (T30, lines 18 and 29) and an abuse of process (T30, line 49).
Mr. Kemp for the third respondent in matter SYG 2109/2006 (i.e. Jobfind Centres Australia) adopted the submission of the State of New South Wales, but stated (at T31, line 41) that the third respondent would not oppose discovery of the contract between itself and the fifth respondent (i.e. Department of Employment and Workplace Relations), which is referred to in the first three lines of paragraph 2, which refers to page 20 of the “Particulars – Disclosure”, filed by the applicant on 12 December 2006. As it is not opposed, the Court declares that it is appropriate, in the administration of justice, to allow discovery of that document (if it exists) by the applicant.
Whether discovery ought to be ordered is a matter of discretion. The Court considers that an order for discovery, other than as above, would not be likely to contribute to the fair and expeditious conduct of these proceedings.
After taking into account the matters referred to in section 45 of the Federal Magistrates Act, the relevant factors set out by Justice Merkel, and the submissions of the parties, the Court determines that it is not appropriate to allow discovery, except as set out above.
Application for joinder of the Guardianship Tribunal (NSW)
The applicant made a complaint to the Human Rights and Equal Opportunity Commission on 20 March 2006 (SYG 2109/2006). That complaint was against named respondents that did not include the Guardianship Tribunal. That complaint was terminated by the delegate of the President by notice and decision dated 29 May 2006.
The applicant lodged an application with the Federal Court of Australia under s.46PO of the HREOC Act on 22 June 2006.
The application was transferred to this Court for determination by order of Justice Stone on 27 July 2006. The applicant seeks to join the Guardianship Tribunal as a respondent. The relevant provisions of s.46PO are as follows (highlighting added):
46 PO [Grounds of application] if:
(a)A complaint has been terminated by the President under section 46PE or 46PH; and
(b)The President has given notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (emphasis added).
The application was terminated by a delegate to the President under section 46PH of the HREOC Act and notice was given to the applicant.
The Guardianship Tribunal was not a respondent to the terminated complaint. The applicant submits:
·(T45, line 44) “the very first documents, the letter of 27 January, the letter of 20 March 2006, and the submissions of 21 April 2006 all go directly to me being on a Disability Services Act program”.
·(T46, line 13) “I didn’t actually refer to the (Tribunal) in terms of being a respondent there and then.”
·(T46, line 36) “Even though the Guardianship Tribunal wasn’t named per se in that complaint, its action was clearly the subject of the complaint and…it can be taken to be a respondent because the its actions were the subject of the complaint.”
·(T47, line 16) “Under s.46PO…the documents you can take into account include the notice of termination and…every complaint document as well.”
·(T48, line 39) The Court asked the applicant: “Do any of the documents refer to the Guardianship Tribunal?”
(Line 41) “I don’t believe that it does”.
·(T49, line 44) “Where the scope of the complaint covers their action…you can call a particular agency or body a respondent where it is necessary to do so.”
·(T50, line 41) “…you can treat that Tribunal as a necessary party under Federal Magistrates Court Rules, and certainly where its conduct is the subject of complaint.”
·(T50, line 45) “There was no direct allegation against the Tribunal by name in any of the papers before the Commission.”
The Guardianship Tribunal opposed joinder and submitted:
·(T53, line 21) “The Guardianship Tribunal opposes joinder on two bases – s.46PO, and that joinder would be futile.”
·(T53, line 28) “The Guardianship Tribunal is not a respondent to the HREOC complaint and is not referred to in any of the complaints or updating complaints – the three letters referred to by Ms. Lawrance as constituting her complaint.”
·(T53, line 35) Reference was made to the decision of Smith FM in Lawrance v Commonwealth of Australia [2006] FMCA 1792. Ms. Lawrance objects to the Court following this decision. The decision has not been appealed, and the Court finds no reason to disregard it. Counsel for the Guardianship Tribunal referred to paragraphs 18 an 19 of the decision as follows:
[18] I am doubtful whether this is the correct interpretation of s.46PO(1). I was not referred to any authority on the point, and have not conducted my own researches. However, I am inclined to think that the Act intends that the Court should determine its jurisdiction in relation to proposed respondents, by itself forming an opinion as to who were “the respondents to the terminated complaint”. This interpretation might better accord with the judicial function conferred on the Court.
[19] If the Court must decide the issue for itself as a question of jurisdictional fact, the course of correspondence between the Commission and the applicant and other parties when the matter was before the Commission, and the Commission’s notice of termination and its reasons, would provide the relevant evidence upon which the Court should arrive at its conclusion as to who were the respondents to the terminated complaint. In the present case, after examining the complaints which were terminated by the Commission, I have concluded that the Commission correctly identified the respondents to the terminated complaint in its list on the notice of termination. I therefore do not need to resolve the issue of construction.
Ms. Lawrance (at T61, line 10) conceded that the part of the decision on the issue of construction “is consistent with authority on the point.”
The Court finds those paragraphs in his Honour’s decision to be correct statements of the law. After examining the complaints that were terminated by the Commission, the Court concludes that the Commission correctly identified the respondents to the terminated complaint in its list at the head of the notice of termination: the Guardianship Tribunal is not included.
Counsel for the Guardianship Tribunal continued:
·(T57, line 13) “We also say that 46PO(3) prevents the Guardianship Tribunal being a respondent – the things alleged against it do not arise out of the same facts and circumstances as the complaint. But I won’t take that any further…because the s.45 point is clearer.”
·(T57, line 19) “As to the second matter, we say that the application…is futile…(as there are) no records of Ms. Lawrance whatsoever in terms of applications to the Tribunal or orders by the Tribunal.”
The applicant cannot make an application to the Court alleging unlawful discrimination by the Guardianship Tribunal (in SYG 2109/2006). The words “make an application” are not limited to the filing or lodging of the original documents; they extend to cover what is put to the Court in the case before it. The section does not allow the filing of an application with limited respondents, and thereafter adding respondents that were not respondents to the terminated complaint. It is therefore not open to now add the Guardianship Tribunal as a respondent.
The Court finds that the Guardianship Tribunal was not a respondent to the terminated complaints (references KMc/2016890FC(D), 2016891FC(S) and 2016893FC(H).
Rule 11.01(1) of the Federal Magistrates Court Rules 2001 provides that:
Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party to the proceeding.
The Guardianship Tribunal is not “a person whose participation is necessary for the Court to completely and finally determine all matters in dispute” in the proceedings between the parties before HREOC. The words “subject to any order of the Court” give the Court a discretion as to whether a person should be joined as a party. Having regard to section 46PO of the HREOC Act, and to the matters referred to above, the Court dismisses the application to join the Guardianship Tribunal as a party to the proceeding.
The applicant named the NSW Guardianship Tribunal as the eleventh respondent to matter SYG 655/2007.
Injunctions
The applicant seeks interlocutory and perpetual injunctions to restrain the Commonwealth and the State of New South Wales from disclosing or releasing information about her. Acting Chief Justice Mason (as he then was) stated in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 at [11] (adopted in Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu & Ors (2000) 171 ALR 341):
The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show
(1)that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief;
(2)that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and
(3)that the balance of convenience favours the granting of an injunction.
Since Castlemaine Tooheys it is clear that the first and second limbs are interrelated and the balance of convenience may be affected by the Court’s perception or evaluation of the strength of the plaintiff’s case (see United States Tobacco Company v Minister for Consumer Affairs & Anor (1988) 79 ALR 430 and Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 74 ALR 505 from “Injunctions Outline,” Paul Meadows 20.9.88). In Australian Broadcasting Corporation v O’Neill (No H1/2006) (2006) 229 ALR 457 at [65] Gleeson CJ, Crennan, Gummow and Hayne JJ stated as to the principles respecting the grant of the special remedy of injunctive relief that is interlocutory in nature are as follows:
Interlocutory injunctions
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument[71]. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
[71] Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 620
In CPSU, The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176 (1 December 2006) the Full Court of the Federal Court of Australia stated at [13-19]:
Section 838 of the WR Act provides that if, under a provision of the Act, a court may grant an injunction, the court may, if in its opinion it is desirable to do so, grant an interim injunction pending its decision on the granting of the injunction.
TEST FOR GRANT OF INTERIM INJUNCTION
The Court’s discretion under s.838 of the WR Act to grant an interim injunction is conferred in wide terms. Nonetheless, the discretion must be exercised judicially; that is, ‘not arbitrarily, capriciously or so as to frustrate the legislative intent’ (Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [22]). Additionally, as the discretionary power to grant interlocutory injunctions has a long history, the discretion is to be exercised according to established principles (Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 per Gleeson CJ at [10]).
It is well established that a proper purpose of an interlocutory injunction is to maintain the status quo until the rights of the parties can be determined at final hearing (ABC v Lenah Game Meats per Gleeson CJ at [9]-[10]).
The principles governing the grant or refusal of interlocutory injunctions have recently been confirmed in Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 (‘O’Neill’). Gleeson CJ and Crennan J at [19] observed:
‘... in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd [ante] should be folIowed.’ (footnotes omitted)
In O’Neill [ante] Gummow and Hayne JJ at [65] stated:
‘The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:
“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. ... With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.” (footnotes omitted)
At [70] Gummow and Hayne JJ make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase ‘serious question’ if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Limited v Bristol Laboratories Pty Ltd. At [71] their Honours emphasise that the governing consideration is that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
No suggestion was raised on this appeal, or it seems before the primary judge, that damages would provide adequate compensation to the appellants should they be entitled to final relief. Nor was it suggested that, if a serious question to be tried were shown, the balance of convenience did not favour the granting of an injunction. The practical consequences likely to flow from the grant of the interlocutory orders sought are principally that applications from staff of the Employment Advocate to take leave on 30 November 2006 will be assessed in the usual way. The critical issue before the primary judge, and on this appeal, is therefore whether the appellants have demonstrated a serious question to be tried, in the sense discussed by the High Court in O’Neill, as to their entitlement to final relief.
The Court clearly has the power to grant interim injunctions. Section 46PO of the HREOC Act provides:
Application to court if complaint is terminated
(1)If:
(a) a complaint has been terminated by the President under section 46PE or 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(2)The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(3)The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
(5)In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976 ).
(6)The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7)The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8)The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
Section 46PP of the HREOC Act provides:
Interim injunction to maintain status quo etc.
(1)At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person.
(2)The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
(3)The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE or 46PH.
(4)The court concerned may discharge or vary an injunction granted under this section.
(5)The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.
As an interim injunction under that Act is granted pending the determination of the proceedings, the principles governing the granting of them are as for interlocutory injunctions above. Their purpose is “to maintain the status quo, as it existed immediately before the complaint was lodged”. The purpose of the interlocutory injunctions sought by the applicant is not to maintain the status quo, but is to change the status quo.
This Court is a court of record, and is a court of law and equity: s.8(3) Federal Magistrates Act. Being a court of equity, the Court has the power to grant injunctions. By s.15(a) the Court has the power to make such interlocutory orders as the Court thinks appropriate.
The applicant must show first:
·That there is a serious question to be tried, or
·That she has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action she will be held entitled to relief.
A serious question to be tried/is there a prima facie case?
The applicant’s case is based on her genuinely held beliefs that various bodies and persons are discriminating against her by imputing to her a psychological injury, and doing various things to her or to her property.
The applicant’s assertions in her affidavits are not supported by any evidence other than her perception of what is happening to her. If the evidence remains as it is, it is not probable that at the trial of the action the applicant will be held to be entitled to relief. The Court of course cannot reach a final conclusion on the matter at this stage. However, as the evidence is on affidavit, the Court is in a position to reach a tentative view on the matter. The Court concludes that there is not a serious question to be tried and that a prima facie case has not been made out. Owing to both the extent and nature and content of the material filed by the applicant, the Court is of the view that its order of 1 August 2007 preventing the applicant from filing and serving further documents before the determination of the applications to dismiss the matters, is not likely to prevent the applicant from putting cogent evidence before the Court. That order was made in the interests of the administration of justice.
The next matter the applicant must show is that she will suffer irreparable injury, for which damages will not be adequate compensation, unless injunctions are granted. The conclusion of the Court is that if the applicant succeeds in her case, injunctions at that stage plus damages would be adequate compensation.
The next matter the applicant must show is that the balance of convenience favours the granting of the injunctions. There is nothing to show that it would be convenient to grant injunctions to prevent activities taking place, where the only evidence of them, is the unsupported assertions by the applicant. This is not to say that at the final hearing the applicant will not be able to prove the activities complained of.
Interlocutory injunctions are normally only granted to preserve the status quo until a final determination of the matter. In this case the injunctions would not preserve the status quo. They are being sought on the assumption that breaches of legislation have already been established. That is clearly not so. This Court will not issue injunctions to restrain activities that may or may not be happening unless there is cogent evidence before the Court.
The Court notes that although the applicant states that she seeks injunctions on an interlocutory basis, her original application to this Court includes perpetual injunctions.
The grant of final injunctions depends on the applicant establishing to the satisfaction of the Court that the activities complained of are in breach of the named statutes and that those breaches will continue unless the parties are restrained. That is a matter to be addressed at the final hearing. The Court will not grant the injunctions sought.
The applicant seeks injunctions against the Commonwealth and the State of New South Wales and “eligible service providers” restraining them from entering the applicant’s premises. As there is no cogent evidence before the Court that such conduct is occurring, for the reasons stated above relating to the other injunctions sought, the Court will not grant these injunctions.
The applicant seeks injunctions against the State of the New South Wales restraining it from administering medical treatment to the applicant; against the Guardianship Tribunal restraining it from granting any form of guardianship; and injunctions requiring Centrelink and the Jobfind Centre Australia Pty Ltd to treat the applicant as a person who has no disability. As there is no cogent evidence before the Court at present that such conduct is occurring, the Court declines to grant the injunctions for the reasons outlined above, relating to the other injunctions sought by the applicant.
Claim for a special benefit
The applicant seeks an order for a special benefit under s.15 of the Federal Magistrates Act (Points of Claim, 9 January 2007, para 146). The Court accepts the submission by Ms. Watson (transcript of 20 February 2007, p.96) that such an award is not of an interlocutory or interim nature, but is a matter for final relief, if appropriate. The Court is restricted under s.15 to the remedies appropriate to the particular case: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 per Wilson and Dawson JJ at [7]. The Court finds that a special benefit by way of damages or otherwise is not appropriate at this stage, and rejects that application.
Order pursuant to Rule 14.2
The Court declares under s.45(1) of the Federal Magistrates Act that it is appropriate in the administration of justice to allow discovery as set out below. The Court orders pursuant to Rule 14.02 that the third respondent (in SYG 2109/2006) “Jobfind Centres Australia Pty Ltd”, give discovery of a contract it may have with the fifth respondent, “The Department of Employment and Workplace Relations”, described by the applicant in “Particulars – Disclosure” filed by the applicant on 12 December 2006 on p.20 as follows:
Documents disclosing the existence and substance of contact between the Bondi Junction Jobfind Centre and the Department of Employment and Workplace Relations, or Centrelink, or DFaCSIA, or CRS Australia, or an advocate/eligible service provider (state based or Commonwealth), relating to me and policies implemented in relation to me that involve me being treated as a person who has a disability or who might have a disability, including that described at point 12(4) asterisk 1 on p.15 of this document (under the heading the Department of Families, Community Services and Indigenous Affairs), other policies or practices, including the use of a pen where relevant.
Asterisk 1 on p.15 is as follows:
In the last 4 or so weeks, staff at the Bondi Junction Jobfind Centre all behave as though I am under surveillance and monitoring as soon, literally, as I walk in the office. Instead of one person dealing with me, several people automatically start talking to me and locating my file for my job-search work as soon as I walk in. Its very unnerving and appears to be based on the imputing of a paranoid personality.
In reaching conclusions in these matters, the Court has had regard to the following documents filed by the applicant, as well as the other documents in the matter.
Documents filed by the applicant in SYG 2109/2006
DATE FILED
DOCUMENT
22.06.06
Application
22.06.06
Claim under HREOC Act
22.06.06
Points of claim
22.06.06
Affidavit: Lawrance
11.07.06
Affidavit: Lawrance
25.07.06
Affidavit: Lawrance
27.07.06
Draft orders sought
04.08.06
Affidavit: Lawrance
04.08.06
Affidavit: Lawrance
22.08.06
Affidavit: Lawrance
22.08.06
Affidavit: Lawrance
22.08.06
Affidavit: Lawrance
22.08.06
Affidavit: Lawrance
22.08.06
Affidavit: Lawrance
24.08.06
Affidavit: Lawrance
24.08.06
Affidavit: Lawrance
25.08.06
Affidavit: Lawrance
12.10.06
Amended application
27.10.06
Notice of Motion
27.10.06
Affidavit: Lawrance
03.11.06
Affidavit: Lawrance
12.12.06
Application for interim orders
12.12.06
Application seeking discovery
12.12.06
Affidavit: Lawrance
09.01.07
Affidavit: Lawrance
09.01.07
Points of claim
25.01.07
Points of claim
09.03.07
Affidavit: Lawrance - Response/Dismissal
04.05.07
Affidavit: Lawrance
14.05.07
Affidavit: Lawrance
17.05.07
Affidavit: Lawrance
18.06.07
Affidavit: Lawrance
19.07.07
Notice to Admit Facts (Re D. Watson)
19.07.07
Notice to Admit Facts (Re E. Mee)
24.07.07
Notice to Admit Facts (Re L. Lozina)
24.07.07
Affidavit: Aroha Lawrance
Documents filed by the applicant in SYG 655/2007
DATE FILED
DOCUMENT
26.02.07
Application
26.02.07
Claim under HREOC Act
26.02.07
Affidavit: Lawrance
05.04.07
Points of Claim
05.04.07
Affidavit: Lawrance
17.04.07
Affidavit: Lawrance
17.04.07
Affidavit: Lawrance
4.05.07
Affidavit: Lawrance
14.05.07
Affidavit: Lawrance
17.05.07
Affidavit: Lawrance
26.06.07
Affidavit: Lawrance
19.07.07
Notice to Admit Facts (Re D. Watson)
19.07.07
Notice to Admit Facts (Re E. Mee)
24.07.07
Notice to Admit Facts (Re B. Smith)
24.07.07
Notice to Admit Facts (Re D. Watson)
24.07.07
Affidavit: Lawrance
Documents filed by the respondents in applications for summary dismissal:
DATE FILED
DOCUMENT
16.02.07
Application for summary dismissal by State of New South Wales (SYG 2109/06)
16.02.07
Affidavit: E. Mee (SYG 2109/06)
19.02.07
Affidavit: B. Lyons (SYG 2109/06)
30.03.07
Application for summary dismissal by State of New South Wales (SYG 655/07)
30.03.07
Affidavit: E. Mee (SYG 655/07)
30.03.07
Application for summary dismissal by the NSW Guardianship Tribunal (SYG 655/07)
02.04.07
Notice of motion to dismiss by First, Second, Fourth – Sixth Respondents (SYG 2109/06)
02.04.07
Affidavit: D. Watson (SYG 2109/06)
02.04.07
Notice of motion to dismiss by First – Ninth, Twelfth – Seventeenth Respondents (SYG 655/07)
On 1 August 2007 the Court made an order that the applicant is not to file and serve, and the Registry is not to accept for filing, any further documents in this matter before the determination by the Court of the applications to dismiss the matters. That order was made in the interests of the administration of justice and for the proper conduct of these proceedings.
However, the Court will vacate that order and allow the applicant to file further evidence within 7 days of today. The respondents have 21 days from then to file and serve written submissions in support of their applications for summary dismissal. The applicant is then to have 21 days to file and serve written submissions opposing the applications for summary dismissal; those submissions must include a list of the affidavits and other material that the applicant seeks to rely on in support of her applications. The applications for summary dismissal will be listed for hearing at a date to be determined.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 26 October 2007
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