Lawrance v Cth of Aust & Ors and Lawrance v AAT & Ors
[2008] FMCA 1340
•26 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v CTH OF AUST & ORS and LAWRANCE v AAT & ORS | [2008] FMCA 1340 |
| HUMAN RIGHTS – No reasonable prospect of success – abuse of process vexatious proceeding in this and the other Courts – costs matter – raise issue of public interest – seeking orders of person benefit costs against unsuccessful applicant. |
| Administrative Appeals Tribunal Act 1975, ss.60, 61, 63 Federal Magistrates Act 1999, ss.17A, 55, 61 Federal Magistrates Court Rules 2001, rr.2.06, 11.02, 13.10, 13.11, 15.01, 21.02, 21.04, 21.15 Federal Court Rules 2001, O.62, r.21 Disability Discrimination Act 1992, s.29 Disability Services Act 1986 Evidence Act 1995, ss.79, 135 Guardianship Act 1987 Human Rights and Equal Opportunity Act 1986, ss.15, 46PH, 46PO Judiciary Act 1903 Mental Health Act 2007 Public Service Act 1999 Sex Discrimination Act 1975, s.26 Social Security Act 1991, ss.603A, 729 |
| X & Ors v Australian Prudential Regulation Authority [2007] HCA 4 Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 |
| 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: | Appearing on her own behalf |
| Solicitors for the Respondents: | Ms D. Watson of Australian Government Solicitor (for the 1st, 2nd, 4th, 5th, 6th Respondents) |
| Solicitors for the 3rd Respondent: | Mr MacInnis of Dibbs Abbott Stillman |
| Counsel for the 7th Respondent: | Mr Moorhouse |
| Solicitors for the 7th Respondent: | Crown Solicitors |
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 |
| Judgment of: | Turner FM |
| Hearing dates: | 12, 13, 14 & 15 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2008 |
REPRESENTATION
| The Applicant: | Appearing on her own behalf |
| Solicitors for the Respondents: | Ms D. Watson of the office of the Australian Government Solicitor (for the 1st, 9th, 12th to 17th Respondents) |
| Counsel for the 10th & 11th Respondents: | Mr Moorhouse |
| Solicitors for the 10th & 11th Respondents: | Crown Solicitors |
ORDERS
The only matters arising from the proceedings before HREOC that can be brought before the Court, are matters relating to a respondent to the terminated complaint before HREOC, that allege unlawful discrimination, that is the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or arises out of the same (or substantially the same) acts, omissions or practices, that were the subject of the terminated complaint. To the extent that the matters before the Court do not meet those criteria, the complaints are not properly before the Court and are dismissed; for instance the Court orders that the claim against Salvation Army Employment Plus is dismissed.
The applications, as amended, in SYG 2109 of 2006 and SYG 655 of 2007 are summarily dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 and summary judgment is given to each Respondent pursuant to s.17A(1) of the Federal Magistrates Act 1999 (the “Act”).
The pen in mouth conduct described does not constitute conduct of a sexual nature and is not within the definition of sexual harassment.
It does not constitute indirect sex, marital status or disability discrimination. The allegations lack substance and have no reasonable prospect of success. All complaints in relation to those allegations are dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
Pursuant to Rule 13.11(2) and (3) the Court orders:
(a)That any proceeding instituted by the applicant in this Court may not be continued without leave of the Court. Rule 13.11(3)(a) Federal Magistrates Court Rules 2001.
(b)The applicant may not institute a proceeding in this Court without prior leave of the Court. Rule 13.11(3)(b) Federal Magistrates Court Rules 2001.
(c)The Court directs that without the prior leave of the Court the applicant is not to file, and the Registry is not to accept for filing, any further applications to the Court in relation to allegations of sex, marital status and implied disability discrimination and victimisation, or any other issues the subject of Notices of Termination issued by Karen Toohey, Delegate of the President of Human Rights and Equal Opportunity Commission (“HREOC”) on 29 May 2006, (References KMc/2016890FC(D), 2016891FC(S) and 2016893FC(H), and on 6 February 2007 (References KMc/20177525FC(D) and 2017726FC(S) or in relation to any associated matter. Rule 2.06(1)(a) of the Federal Magistrates Court Rules 2001.
(d)The applications by the applicant in matters SYG 2109 of 2006 and 655 of 2007 are dismissed pursuant to Rule 13.10(a) as the applicant has no reasonable prospect of successfully prosecuting the proceedings or claims against any of the respondents.
All proceedings instituted by the applicant may not be continued without the leave of the Court.
The applicant may not institute a proceeding relating to the alleged administration to her of medical treatment, and/or to issues involved in the matters terminated by HREOC or to any issues involved in those matters without leave of the Court.
The Court finds also that the applicant has instituted a vexatious proceeding, and is satisfied that she has habitually and persistently and without reasonable grounds instituted other vexatious proceedings in this Court and other Australian Courts, and orders:
(a)That any proceeding instituted by the applicant against the parties involved in these matters may not be continued without the leave of the Court; and
(b)That the applicant may not institute any proceeding against the parties involved without the leave of the Court.
Proceeding SYG 2109 of 2006 and SYG 655 of 2007 are dismissed for being vexatious and an abuse of process of the Court pursuant to Rule 13.10(b) and (c) of the Federal Magistrates Court Rules 2001.
The application for summary dismissal against the respondents is dismissed, as is the application for disclosure.
The application to forbid publication of the applicant’s name is dismissed.
The Court directs that the Registrar not accept from or on behalf of the applicant any document for filing without the leave of the Court.
The claim against Annette O’Neill is dismissed.
Ms Watson submits that the AAT is not the employer of its staff and should not be the respondent (transcript 13 May 2008 page 121 line 43). The Court accepts that submission and orders that the claims against the AAT are dismissed.
In transcript of 15 May 2008 page 267 line 9 Ms Watson for the Commonwealth respondents states that she only seeks vexatious litigation orders in relation to the two respondents who are respondents in each and every one of those proceedings, being DFaCSIA and CRS; but that she makes summary dismissal applications in relation to all respondents (transcript 15 May 2008 page 267 line 46). The Court orders that the claims against all respondents are summarily dismissed.
The application for a special benefit is dismissed.
The Court orders:
(a)That Ms Lawrance pay the costs of the Respondents to her actions, and of their applications for summary dismissal.
(b)All respondents who have incurred legal costs in these matters are entitled to their costs. They are entitled to their costs incurred since the commencement of proceedings before the Court in June 2006, including costs incurred in relation to interlocutory matters in (Lawrance v Commonwealth of Australia; Lawrance v AAT & Ors) [2008] FMCA 634.
(c)The Court certifies that it was reasonable for the respondents to employ advocates and instructing solicitors for all parts of the proceedings pursuant to r.21.15 of the Federal Magistrates Court Rules 2001.
(d)The costs are to be taxed by the Registrar on the Federal Court scale pursuant to Order 62 of the Federal Court Rules 2001
(r. 21.02(2)(c)).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
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 |
Nineteenth Respondent
REASONS FOR JUDGMENT
Introduction
These matters involve claims against Centrelink and others of imputed disability, sex and marital status discrimination, sexual harassment and victimisation in the provision of goods and services and administration of Commonwealth laws and programmes. Various respondents have lodged applications for summary dismissal which are the subject of this decision.
The applicant seeks an order suppressing the publication of her name. Section 61 of the Federal Magistrates Act 1999 (the “Act”) provides that the Court may order this if it appears necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. In X & Ors v Australian Prudential Regulation Authority [2007] HCA 4, Kirby J said at [86]:
“The suppression of names ought to be confined to cases in which disclosure “would prejudice the court’s proper exercise of the function it was appointed to discharge, to do justice between the parties”, or where disclosure “would destroy the subject- matter of the proceedings and render them nugatory”. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula.”
The Court sees no reason to suppress the name of the applicant.
Ms Lawrance’s human rights claims involve claim for damages which are purely personal to her. There is no public interest in her bringing the claims.
Application SYG 2109 of 2006
The application by Ms Lawrance in matter SYG 2109 of 2006 was filed in the Sydney Registry of the Federal Court Australia on
22 June 2006and given matter number NSD 1211/2006.
Points of Claim were filed with the application.
Matter NSD 1211/2006 was transferred to this Court by order of Justice Stone on 27 July 2006 and given number SYG 2109 of 2006.
The applicant filed an amended application on 12 October 2006.
The applicant filed an application in a case on 21 April 2008.
The applicant filed another amended application on 19 May 2008. As stated below, for reasons given during the hearing, the Respondents “The NSW Department of Health” and “Trent Newton” along with paragraph 4, were struck out of that application on 15 May 2008.
The applications stem from complaints to the Human Rights and Equal Opportunity Commission (“HREOC”) and the Termination of those complaints by Karen Toohey, Delegate of the President, by Notice dated 29 May 2006. After considering the information provided by
Ms Lawrance, the Delegate set out her decision terminating the complaint as follows:
“My decision
I have carefully considered the information you have provided and I have decided to terminate your complaint of imputed disability, sex and martial status discrimination and sexual harassment and victimisation in the provision of goods and services and the administration of Commonwealth laws and programs against Centrelink pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that I am satisfied that the alleged complaints are misconceived and lacking substance. I have also terminated this complaint to section 46PH(1)(g) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis I am satisfied that there is a more effective or convenient remedy available to you in the SSAT. I have also terminated your complaint of discrimination on the ground of disability in the area of employment pursuant to section 46PH(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that the alleged unlawful discrimination is not unlawful discrimination.
I have also decided to terminate your complaint of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against DFaCSIA, DEWR and CRS Australia on the basis that I am satisfied that your complaint is lacking substance. Section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 gives me this authority.
I have further decided to terminate your complaints of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against Mr Trent Newton pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that the complaint is misconceived and lacking in substance.
I have also decided to terminate your complaints of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against the State of NSW, Department of Health pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that the complaint is lacking in substance.
I have also decided to decline to continue my inquiry into your complaints that your human rights were breached by the Commonwealth of Australia – Centrelink, Department of Families, Community Services and Indigenous Affairs, Department of Workplace Relations, CRS Australia, Mr Trent Newton (employee of Centrelink Bondi Junction) and Jobfind on the basis that I am of the opinion that your complaint is misconceived pursuant to section 20(2)(c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986. I have further decided to decline to continue my enquiry into the allegations of breaches of human rights by the State of NSW, Department of Health and the State of NSW “ in its entirety” on the basis that I am satisfied that the alleged acts are not inconsistent or with or contrary to any human right, pursuant to section 20(2)(a) of the Human Rights and Equal Opportunity Commission Act 1986.
I appreciate that you may not welcome these decisions and I want to explain my reasons.
Reasons for my decision
Complaints of unlawful discrimination
I am satisfied that the complaints of imputed disability discrimination and martial status discrimination against Centrelink are lacking in substance and misconceived. You state that the reason you applied for the Special Benefit and the exemption to the activity test is your legal matters. I consider that there is no evidence apart from your belief that the State of NSW somehow informed the Commonwealth agencies that you have an imputed psychiatric illness that Centrelink ever imputed to you a disability or did any less favourable act because of an imputed disability. You state that you have not informed Centrelink that you have been imputed with a disability. There is no evidence apart from your belief that Centrelink and other agencies have placed you in a program of disability support. You are not receiving Newstart because you have refused to look for work. You cannot therefore fulfil the activity test and have been refused an exemption to the activity test. There is no evidence of marital status discrimination, as there is no evidence that a person who was not single would have been treated in any other manner, apart from your belief. You claim that you are suffering a detriment that a married woman would not suffer rather than stating that you were treated less favourably than a married woman. I believe that this is the effect of alleged discrimination rather than evidence that discrimination occurred. Given all circumstances, I am satisfied that these complaints against Centrelink are misconceived and lacking in substance. Therefore I have terminated these complaints pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
I note that you have also sought a review of these decisions in the SSAT. I am satisfied that the complaint against Centrelink can be more effectively and conveniently dealt with by this statutory authority and therefore I have also terminated the complaints against Centrelink pursuant to section 46PH(1)(g)of the Human Rights and Equal Opportunity Commission Act 1986.
In the (sic) relation to your claim of sexual harassment, I am satisfied that the placing of a pen in the mouth in the circumstances described by you would not constitute conduct of a sexual nature and is therefore misconceived. Therefore all the claim of the liability of the other respondents for the alleged sexual harassment is lacking in substance. I am satisfied also that the alleged act does not constitute sexual discrimination, as I am (sic) satisfied that the placing of a pen in the mouth does not constitute less favourable treatment on the basis of your sex. I am also satisfied that this act does not constitute martial status discrimination as placing a pen in the mouth does not constitute less favourable treatment on the basis of being a single woman. I am also satisfied that it does not constitute less favourable treatment on the basis of imputed disability. Therefore I have terminated this complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
You also claim that the pen in the mouth constitutes victimisation under the Disability Discrimination Act 1992 because of a previous complaint to the Commission under the Disability Discrimination Act 1992. However, I am satisfied that the placing of a pen in the mouth does not constitute a detriment under section 42 of the Disability Discrimination Act 1992 and have terminated the complaint as misconceived under section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. I appreciate that you have found this incident upsetting, but there is no evidence, apart from your belief that Mr Newton did this to victimise you due to your earlier complaints of discrimination.
In relation to the complaint against Jobfind, your allegation is that Jobfind is part of a program against you and the evidence of this is that the organisation is sending you computer generated letters reminding you of appointments you do not have. However I am satisfied that there is insufficient evidence to show this would constitute less favourable treatment on the basis of disability, marital status or sex. The sending out of reminders does not constitute less favourable treatment, and there is no evidence provided from you to show that a reason for these reminders was imputed disability or your marital status or your sex. Therefore I have terminated this complaint on the basis that I am satisfied that it is lacking in substance, pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. I do understand that you do not appear to know why Jobfind was sending you meeting reminders for meetings that you did not have, but this is not evidence of any connection to your disability, your marital status or your sex.
I am also satisfied that your complaints against DEWR, DFaCSIA and CRS are lacking in substance. There is no information provided by you to show any link between these agencies and the alleged actions of Centrelink apart from your claim that they were a part of the program to place you on disability support services. However, you have provided no information to show that these programs are, who is putting them in place, why they are being put in place and you have not provided any evidence to show what any program has in fact been put in place, apart from your belief. I am satisfied that your belief is not sufficient evidence. I am therefore satisfied that these complaints are lacking in substance and have terminated them pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
The complaint that deals with Centrelink referring you to IPC was lodged more than twelve months after the alleged act of discrimination, as the alleged act occurred in 2004 and you lodged this complaint on 27 January 2006. Section 46PH(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 provides that I may terminate a complaint if the complaint was lodged more than twelve months after the alleged act of discrimination occurred. When considering whether to terminate this complaint on the basis, I have taken into account the lack of specificity in the information provided by you, the fact that there would appear to be no reason for the delay and the fact that you were aware of your rights under the Commission’s legislation, as evidenced by the other complaints that have been before the Commission and the Federal Court. I have therefore terminated this aspect of your complaint pursuant to section 46PH(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that it was lodged more than twelve months after the alleged act of discrimination occurred.
In relation to the complaints against the State of NSW, Department of Health I am satisfied that there is no evidence provided by you, apart from your belief, that the Department of Health or anyone else in the NSW Government had any connection with the decisions of Centrelink or the alleged incident of the pen being placed in the mouth. You state that you do not know who or how or what was done, you just have this belief because you know that there was some action by some person under the NSW Mental Health Act to have you treated involuntarily in the past. I am satisfied that this complaint is lacking in substance as there is no evidence, apart from your belief, of any less favourable treatment by the State of NSW in an area of public life on be basis of your sex, marital status, imputed disability or of any involvement in the alleged sexual harassment by Mr Netwon. I have therefore terminated this complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that I am satisfied that it is lacking substance.
In relation to your complaints of employment discrimination under section 15 of the Disability Discrimination Act 1992, I am satisfied that the alleged unlawful discrimination is not lawful as you are not in an employment relationship with any of the named respondents and there can be no claim about discrimination that has not yet occurred that may be committed in the future by unknown or unnamed parties. I am satisfied that the alleged unlawful discrimination is not unlawful discrimination and have terminated the compliant pursuant to section 46PH(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986.
Complaints of breaches of human rights
You claim that all of the above alleged acts of unlawful discrimination are also breaches of Articles of 7, 9 and 26 of the ICCPR.
You allege that the acts constitute degrading treatment under Article 7 of the ICCPR. You also allege that Article 9 has been breached because you have been deprived of your liberty and security of person. You further allege breaches of Article 26, relating to equality before the law.
In relation to the allegations that the alleged acts were inconsistent with or contrary to your human rights, I am of the opinion that this complaint is misconceived as they do not reach the threshold of being a breach of your human rights. Article 7 of the ICCPR deals with torture or inhuman or degrading treatment. The types of breaches that have been found by the Human Rights Committee of the UN and by the Commission to constitute a breach of Article 7 include being stripped and left naked by police in a cell, being kept incommunicado in detention, being kept in cages and similar levels of acts. Article 9 relates to issues where is a person is deprived of their liberty or security without cause and without benefit of the law. I am satisfied that your liberty or security of a person has not been infringed by any of the alleged actions. Article 26 of the ICCPR provides that all persons are equal before the law regardless of status. I am of the opinion that there is insufficient evidence to show that your right to equality before the law is being infringed by the alleged acts of the respondents placing pens in their mouths, particularly as you have assessed the courts in pursuit of your claim and continue to do so. You have also provided no evidence apart from your belief that any Commonwealth law is being unfairly or equally applied to you by the alleged acts. I am therefore of the opinion that the complaints about all of the respondents apart from the State of NSW have done acts that are inconsistent with or contrary to your human rights is misconceived and there I have declined to continue my enquiry pursuant to section 20(2)(c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986.
In relation to the complaint that your human rights were breached by the decisions of Centrelink to not grant you an exemption or a special benefit, as have appealed this decision in the SSAT, I am also of the opinion that the subject matter of the complaint could be more effectively and conveniently dealt with by the SSAT. I have there declined to continue my inquiry into this aspect of the complaint pursuant to section 20(2)(c)(iv) of the Human Rights and Equal Opportunity Commission Act 1986.
In relation to the complaint against the State of NSW “in its entirety” and in particular the Department of Health that your human rights were breached, I am satisfied that there is no act or practice of the Commonwealth that would have occurred. You claim that the State is liable because of the Commonwealth/State agreements in relation to the DSA, but these agreements are not enough to make the State’s acts “by or on behalf of the Commonwealth”. There has to be some real link between the act of the State and a power of the Commonwealth. There is no evidence in this matter of such a link, as while there is an agreement between the Commonwealth and the States in relation to the provision of disability services, the States are not acting for or on behalf of or in the stead of the Commonwealth. Most of the funding for health, education, disability services and other services provided by the Sate of NSW comes for Commonwealth but does not meant that the States act for, by or on behalf of the Commonwealth. I refer to the decision of Minogue v The Human Rights & Equal Opportunity Commission [1999] FCA 85 in which Justices, Sackville, North and Kenny in a joint judgment considered whether a State prisoner could make a complaint to the Commission under the Human Rights and Equal Opportunity Commission Act 1986. In doing so they referred to the definitions of an “act” or “practice” noted above and found the Commission does not have jurisdiction under section 11(1)(f) of the Human Rights and Equal Opportunity Commission Act 1986 to determine a complaint involving the acts or practices of a State, only against “the Commonwealth”. I note that you refer to the Federal Court decision of Rivera, but that matter dealt with a prisoner who was held in a State prison on behalf of the Commonwealth, as the Commonwealth does not have any prisons, and therefore I consider it is not relevant to your complaint. I am satisfied that in the context in which you complain, the State of NSW, either in its entirety or as the Department of Health, is not “the Commonwealth” or acting on behalf of the Commonwealth in the manner intended in the legislation and therefore have declined to continue my inquiry in this complaint pursuant to section 20(2)(a) of the Human Rights and Equal Opportunity Commission Act 1986.
Other concerns raised
In relation to your claim that CEDAW is being breached, I note for your information that the Human Rights and Equal Opportunity Commission Act 1986 does not include CEDAW as a convention or treaty or declaration scheduled to or declared under the Human Rights and Equal Opportunity Commission Act 1986 and therefore a breach of it is not inconsistent with or contrary to any human right as defined in the Human Rights and Equal Opportunity Commission Act 1986. I there have declined to inquire into this complaint pursuant to section 20(2)(a) of the Human Rights and Equal Opportunity Commission Act 1986.
In relation to your issues of privacy and your allegations that you are being observed, you do not say who or how or why this is being done, and such things unless in an area of public life are not in any event covered by the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 or the Human Rights and Equal Opportunity Commission Act 1986. You have therefore not raised any issue that would fall within the Commissions jurisdiction in relation to these concerns and therefore they have not been accepted as part of your complaint.
a)The Delegate terminated the complaint of imputed disability, sex and martial status discrimination and sexual harassment and victimisation in the provision of goods and services, and the administration of Commonwealth laws and programmes, against Centrelink “on the basis that I am satisfied that the alleged complaints are misconceived and lacking in substance”.
b)The Delegate terminated the complaint of discrimination on the ground of disability in the area of employment “on the basis that the alleged unlawful discrimination is not unlawful”.
c)The Delegate terminated the complaint of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against DFaCSIA, DEWR and CRS Australia “on the basis that I am satisfied that your complaint is lacking in substance”.
d)The Delegate terminated the complaint of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against Trent Newton “on the basis that the complaint is misconceived and lacking substance”.
e)The Delegate terminated the complaints of imputed disability, sex and marital status discrimination and sexual harassment and victimisation against the State of NSW, NSW Department of Health “on the basis that the complaint is lacking in substance”.
f)The Delegate “declined to continue my inquiry into your complaints that your human rights were breached by the Commonwealth of Australia – Centrelink, Department of Families, Community Services and Indigenous Affairs, Department of Workplace Relations, CRS Australia, Mr Trent Newton (employee of Centrelink Bondi Junction) and Jobfind on the basis that I am of the opinion that your complaint is misconceived”.
g)The Delegate “declined to continue my enquiry into the allegation of breaches of human rights by the State of NSW, Department of Health and the State of NSW ‘in its entirely’ on the basis that I am satisfied that the alleged acts are not inconsistent with or contrary to any human right”.
h)The Delegate found that “I am satisfied that the complaints of imputed disability discrimination and marital status discrimination against Centrelink are lacking in substance and misconceived”.
i)The Delegate found that “there is no evidence apart from your belief that the State of NSW somehow informed the Commonwealth agencies that you have an imputed psychiatric illness that Centrelink ever imputed to you a disability or did any less favourable act because of an imputed disability…There is no evidence apart from your belief that Centrelink and other agencies have placed you in a program of disability support. …There is no evidence of martial status discrimination…apart from your belief…Given all circumstances I am satisfied that those complaints against Centrelink are misconceived and lacking in substance”.
j)The Delegate found that “In relation to your claim of sexual harassment…I am satisfied that the placing of a pen in the mouth in the circumstances described by you would not constitute conduct of a sexual nature and is therefore misconceived. Therefore all the claim of the liability of the other respondents for the alleged sexual harassment is lacking in substance…
I am satisfied also that the alleged act does not constitute sexual discrimination, as I am satisfied that the placing of a pen in the mouth does not constitute less favourable treatment on the basis of your sex. I am satisfied that this act does not constitute martial status discrimination as placing a pen in the mouth does not constitute less favourable treatment on the basis of being a single woman. I am satisfied that it does not constitute less favourable treat (sic; “treatment”) on the basis of imputed disability…you also claim that placing a pen in the mouth constitute victimisation… because of a previous complaint to the Commission…However I am satisfied that the placing of a pen in the mouth does not constitute a detriment under s.42 of the Disability Discrimination Act 1992 and have treated the claim as misconceived…There is no evidence apart from your belief that Mr Newton did this to victimise you due to your earlier complaints of discrimination”.k)The Delegate found “In relation to your complaint against Jobfind …I am satisfied that there is insufficient evidence to show this would constitute less favourable treatment on the basis of disability marital status or sex. The sending out of reminders does not constitute less favourable treatment…Therefore I have terminated the complaint on the basis that I am satisfied that it is lacking in substance… I am satisfied that your complaints against DEWR, DFaCSIA and CRS are lacking in substance. There is no information provided by you to show any link between these agencies and the alleged actions of Centrelink apart from your claim that they were part of a program to place you on disability support services. However you have provided no information to show what these programs are, who is putting them in place, why they are being put in place and you have not provided any evidence to show that any program has in fact been put in place, apart from your belief. I am satisfied that you belief is not sufficient evidence. I am therefore satisfied that these complaints are lacking in substance and terminate them…The complaint that deals with Centrelink referring you to IPC was lodged more than twelve months after the alleged act of discrimination in 2004… I may terminate the complaint if the complaint was lodged more than twelve months after the alleged act…I have terminated this aspect of the complaint…”
l)The Delegate found “In relation to the complaints against the State of NSW, Department of Health…I am satisfied that there is no evidence provided by you, apart from your belief, that the Department of Health or anyone else in the NSW Government had any connection with decisions of Centrelink or the alleged incident of the pen being placed in the mouth. You state that you do not know who or how or what was done, just that you have this belief because you know that there was some action by some person under the NSW Mental Health Act to have you treated involuntarily in the past. I am satisfied that this complaint is lacking in substance as there is no evidence, apart from your belief, of any less favourable treatment by the State of NSW in the area of public life on the basis of your sex, martial status, imputed disability or of any involvement in the alleged sexual harassment by Mr Newton. I have therefore terminated this complaint…on the basis that I am satisfied that it is lacking in substance”.
m)The Delegate found “In relation to your complaints of employment discrimination…I am satisfied that the alleged unlawful discrimination is not unlawful as you are not in an employment relationship with any of the named respondents…I am satisfied that the alleged unlawful discrimination is not unlawful discrimination and have terminated the complaint…”
n)
The Delegate found “In relation to the allegations that the alleged acts were inconsistent with or contrary to your human rights…
I am of the opinion that this complaint is misconceived as they do not reach the threshold of being a breach of human rights…I am satisfied that your liberty or security of person has not been infringed by any of the alleged actions…I am of the opinion that there is insufficient evidence to show that you’re right to equality before the law is being infringed by the alleged acts of the respondents placing pens in their mouths…You have also provided no evidence apart from your belief that any Commonwealth law is being unfairly or unequally applied to your (sic, you) by the alleged acts. I am therefore of the opinion that the complaints about all of the respondents apart from the State of NSW have done acts that are inconsistent with or contrary to your human rights is (sic, are) misconceived and I therefore I have declined to continue my inquiry…”o)The Delegate found “In relation to your complaint against the State of NSW ‘in its entirety’ and in particular the Department of Health that your human rights were breached, I am satisfied that there is no act or practice of the Commonwealth that would have occurred. You claim that the State is liable because of the Commonwealth / State agreements in relation to the DSA, but these agreements are not enough to make the State’s acts “by or on behalf of the Commonwealth”. There has to be some real link between the act of the State and a power of the Commonwealth. There is no evidence in this matter of such a link, or while there is an agreement between the Commonwealth and the States in relation to the provision of disability services, the States are not acting for or on behalf of or in the stead of the Commonwealth…”
p)The Delegate found “In relation to your claim that CEDAW is being breached…a breach is not inconsistent with or contrary to any human right as defined in the Human Rights and Equal Opportunity Act…”
q)The Delegate found “In relation to your issues of privacy and your allegations that you are being observed, you do not say who or how or why this is being done, and such things unless in the area of public life are not in any event covered by the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 or the Human Rights and Equal Opportunity Commission Act 1986. You have therefore not raised any issue that would fall within the Commission’s jurisdiction in relation to these concerns and therefore they have not been accepted as part of your complaint”.
Section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (the “HREOC Act”) provides relevantly:
“Applications to court if complaints 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:
(amust 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.”
Ms Lawrance’s complaints were terminated by a Delegate of the President and notice was given to her in relation to the termination.
The only matter arising from the matters before HREOC that can be brought before the Court are; matters relating to a respondent to the terminated complaint that allege unlawful discrimination that is the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or arises out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. To the extent that the matters before the Court do not meet those criteria, the complaints are not properly before the Court and are dismissed; for instance the Court orders that the claim against the Salvation Army Employment Plus is dismissed.
The Court required that all evidence in these matters be put on affidavit.
If the matters proceed to final hearing for determination it would be on the basis of the affidavits and other material that have been filed and the submissions made.
The Court has considered all the material in the documents filed in these matters. It sees no reason or ground to depart from the findings of the HREOC in the decision terminating the complaints.
The applicant has not filed any evidence of substance since the matters before HREOC were terminated. The Court has considered the findings by HREOC and makes the same findings. The Court finds the applicant’s claims to be lacking substance, misconceived and that the applicant has no reasonable prospect of successfully prosecuting the proceedings or claims.
“A proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success” (s.17A(3) Federal Magistrates Act 1999). The Court finds that all of the applicant’s applications are hopeless and bound to fail.
The applicant has not provided any evidence apart from her beliefs and observations of things that have happened to her. She believes that one or more of the respondents may be responsible for doing things to her; but apart from the pen in the mouth complaints, she does not know who has done the things she complains about.
In the matter of SYG 2109 of 2006 by application dated 16 February 2007, the State of New South Wales (“State of NSW”) seeks orders pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Federal Magistrates Court Rules 2001. Section 17A provides as follows:
“Summary judgment
(1)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
Rule 13.10 provides as follows:
“Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
NoteFor additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see section 118 of the Family Law Act.”
The State of NSW sets out the orders sought and the basis for them as follows:
“Application to have the proceeding dismissed against the State of New South Wales
Orders sought by the State of New South Wales
1.Pursuant to Federal Magistrates Act 1999 s.17A and/or the Federal Magistrates Court Rules 2001, r.13.10, that the proceeding be dismissed as against the State of New South Wales.
2.That the State of New South Wales have leave to use the Applications, Points of Claim and Affidavits filed by Applicant in each of the following proceedings before this Honourable Court, SYG2015/2006 and SYG3230 of 2006, SYG655/2007 and SYG654/2007 for the purposes of prosecuting this Motion (matter SYG 655 of 2007 was added during the course of the hearings).
3. That the Applicant pay the costs incurred by the State of New South Wales in connection with the proceeding, as agreed or assessed.
Basis on which the orders are sought
1. The Applicant’s claim as presently formulated against the State of New South Wales:
(a)fails to disclose any specific acts or conduct for which the State of New South Wales is said to be liable;
(b)does not enable to the State of New South Wales to know the claim put against it or properly respond to the claim or prepare its defence to the claim, and is embarrassing;
(c has no reasonable prospects of success;
(d) is frivolous or vexatious, including because:
(i) (as far as the State of New South Wales can determine) the same general claims are being made against the State of New South Wales in other proceedings brought by the Applicant which are currently before this Honourable Court, including SYG2105 of 2006 and SYG3230 of 2006; and
(ii) on the Applicant’s own admission as set out in the Applicant’s Points of Claim, the Applicant is not aware as to whether the State of New South Wales is in fact responsible for provided the alleged disability services (se, for example, Points of Claim filed 22.6.06, par.16), or even whether the alleged disability programme is occurring at all (Points of Claim filed 9.1.07, par.84) – in relation to the State of New South Wales’s responsibility for the alleged provision of disability services, the Applicant Points of Claim suggest that the only basis for alleging that responsibility in the State of New South Wales has entered into agreements with the Commonwealth for the provision of disability services throughout the nation (see Points of Claim field 22.6.06 pars. 109-113 and 135); and
(e)constitute an abuse of process, having regard to:
(i) each of the matters set out above at (a) to (d) above; and
(ii) the fact that the allegations made against the State of New South Wales bear no alleged or apparent relationship with what appears to be primary focus of this proceeding, namely claims of unlawful discrimination committed during the course of the provision of services by, and determination made by Centrelink and Jobfind.
2.Allowing the Application to continue against the State of New South Wales will involved unnecessary expenditure of the resources of the State of New South Wales and in all of the circumstances is contrary to the public interest.”
By Notice of Motion dated 30 March 2007 the Commonwealth respondents seek orders as follows:
“1. The proceeding be dismissed against the above named respondents on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding [Rule 13.10(a)];
2. The proceeding be dismissed as against the abovenamed respondents on the basis that it is vexatious [Rule 13.10(b)];
3. The proceeding be dismissed as against the abovenamed respondents on the basis that it is an abuse of the process of the Court [Rule 13.10(b)];
4. Further, or in the alternative, the fourth and sixth respondents seek orders pursuant to Rule 13.11(3) that
(a) any proceeding instituted by the applicant in relation to these respondents may not be continued without the leave of the Court;
(b) that the applicant may not institute any proceeding against the person aggrieved without the leave of the Court.
5.That the applicant the First, Second and Fourth-Sixth Respondents’ costs.”
The Court refers to and applies the decision of Federal Magistrate O’Sullivan in SIBIC v Sailsbury & Anor [2008] FMCA 715, where at page 11 his Honour stated:
“15. Rule 13.10 of the FMC Rules provides as follows:
“The Court may order that a proceeding by stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or”
16 . The gist of r.13. 10(a) is that there is
“no reasonable prospect of successfully prosecuting the proceeding or claim”.
17.In a summary judgment context similar provisions appear in s.17A(1)(b) and (2)(b) of the Federal Magistrates Act 1999 (“FM Act”) and s.31A(1)(b) and (2)(b) of the Federal Court of Australia Act 1976 (“FCA Act”).
18.The summary dismissal provisions in s.17A of the FM Act were specifically considered (and rule 13.10(a) of the FMC Rules also mentioned) in MG Distributions Pty Ltd & Ors v Khan & Anor (2006) 230 ALR 352; [2006] FMCA 666 (“MG Distribution”). In MG Distribution McInnis FM held that s.17A of the FM Act appears to lower the satisfaction threshold entitling this Court to dismiss a claim, but did not necessarily detract from well settled principles concerning summary dismissal. Thus, it was still appropriate to consider those principles in relation to the question of the no reasonable prospect of success test under s.17A of the FM Act, if there is a real question of fact or law to be determined upon which the rights of the parties depended. See MG Distribution, ALR at 360-361 and 361-262 per McInnis FM; FMCA at paras 37-39 and 42-44. The Court went on to observe that:
“summary dismissal … remains a matter for careful consideration. There is a primary obligation on courts to permit parties to be heard even though there may appear to be strong arguments which have the potential to effectively defeat a claim or a defence.” ALR at 363 per McInnis FM; FMCA at para 45 per McInnis FM.
19.Similarly, and having regard to the nature of this Court, its rules (albeit preceding r.13.10(a) of the FMC Rules in its current form), functions and “philosophy”, Lander J has observed that this Court ought be cautious, and not summarily dismiss a claim unless the matter be “clear, beyond any doubt”: Rana v University of South Australia (2004) 136 FCR 344 at 355; [2004] FCA 559 at para 75 (“Rana”).
20.In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd: (2006) 70 IPR 146; [2006] FCA 1352 (“Boston Commercial”) Rares J gave detailed consideration to the phrase “no reasonable prospect of successfully prosecuting the proceeding” (in that case for the purposes of s.31A of the FCA Act). Rares J noted that conceptually the test had “some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff.”: Boston Commercial IPR at 156 per Rares J; FCA at para 43 per Rares J. Reference was made to the decision of the Judicial Committee of the Privy Council: Hocking v Bell (1947) 75 CLR 125 at 130-131 per Viscount Simon and Lords Porter, Uthwatt, De Pareq and Oaksey; approving of Latham CJ’s dissenting statement in the High Court in Hocking v Bell (1945) 71 CLR 430 at 441-42 per Latham CJ (“Hocking (HC)”), where Latham CJ said:
“But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law.” Hocking (HC) at 441-442 per Latham CJ.
21. Rares J went on to say that in s.31A cases:
“where there is a real issue of fact to be decided in the sense identified in the above principle, (that is by Latham CJ in Hocking HC at 441-442) and, possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.”: Boston Commercial IPR at 157 per Rares J; FCA at para 44 per Rares J.
22.In Boston Commercial Rares J said that if there was, “contested evidence [which] might reasonably be believed one way or the other so as to enable one side or the other to succeed” then “the Court must be very cautious not to do a party an injustice by summarily dismissing”: IPR at 158 per Rares J, FCA at para 45 per Rares J. The purpose of the enactment was said by Rares J to be “to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J. Thus the discretion to summarily dispose of the proceedings was not enlivened “[u]nless only one conclusion can be said to be reasonable”: Boston Commercial IPR at 157 per Rares J; FCA at para 45 per Rares J.
23.In Boston Commercial Rares J also discussed a court’s ultimate aim as being the attainment of justice: Boston Commercial IPR at 158 per Rares J; FCA at para 46 per Rares J; citing Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 per Dawson, Gaudron and McHugh JJ, and “a key feature of the judicial power under Ch III of the Constitution” being that “the Court be in a position to, and in fact does, quell a controversy”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
24.The summary dismissal of proceedings power might defeat, not advance, the attainment of justice, if used to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
25.In Australian and International Pilots Association v Qantas Airways [2006] FCA 1441 (“Pilots Association”) Tracey J in the Federal Court considered Boston Commercial, and summarised Rares J’s conclusion as being that section 31A of the FC Act had lowered the barrier somewhat but that: “it nonetheless constituted a difficult obstacle for a respondent to surmount”: Pilots Association at para 23 per Tracey J. Tracey J specifically agreed with the principles set out by Rares J in Boston Commercial, and determined to act consistently with those principles in the application of section 31A: Pilots Association at para 23 per Tracey J.
26.In Pilots Association Tracey J found that the applicant had no reasonable prospect of success and indicated that ordinarily that would justify the dismissal of the proceedings: Pilots Association at para 34 per Tracey J. However, because it was the first time the pleadings had been “subjected to curial scrutiny” Tracey J determined that the “preferable course” was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J.
27.In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30:
“The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31]-[48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:
In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.”
28.In Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; [2006] FCA 458 (“Duncan”) Heerey J in the Federal Court said:
“a fundamental change to the standard to be applied in strikeout applications has been introduced by s. 31A [of the FCA Act]”: Duncan IR at 473 per Heerey J; FCA at para 5 per Heerey J.
29. Heerey J went on to say:
“Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court’s decision in Dey v Victorian Railways Commissioners (1949 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, namely that the allegations are “so clearly untenable that [they] cannot possibly succeed)”: Duncan IR at 473 per Heerey J; FCA at para 6 per Heerey J.
30.Heerey J went on to speak of the “former strikeout standard” and to describe s.31A of the FCA Act as “a clear, and different command” in the course of ordering that various paragraphs of the statement of claim be struck out.
31.In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 (“Fortron (No. 2)”) French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No. 2) at para 21 French J said:
“Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Sections 31A allows for “judgment” or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of the Court.”
32.This Court respectfully agrees with the views of French J cited above, and adopts them as applicable to summary dismissal applications under r.13.10(a) of the FMC Rules. This judgment or nothing approach must of course be appropriately exercised having regard to the principles established in Boston Commercial Services, and in the manner prescribed in MG Distribution and Rana.”
The Court finds all of the applicant’s claims to be unarguable as no arguable case is advanced, and there is no reasonable prospect that an arguable case could be advanced. Penhall-Jones v State of New South Wales [2006] FMCA 235 per Federal Magistrates Driver at paragraph 9.
There is no real question of fact or law to be determined in the applications by the applicant MG Distributions Pty Ltd & Ors v Khan & Anor [2006] FMCA 666 (supra). The case for summary dismissal is clear and beyond doubt Rana v University of South Australia (2004) 136 FCR 34 (supra).
There is no evidence that may reasonably be believed that could enable the applicant to succeed.
Summary dismissal will not prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success Boston Commercial IPR (supra), as here the applicant has no reasonable prospect of success.
No injustice will be done by summary dismissal. There is no evidence that could be reasonably believed which would enable the applicant to succeed at a final hearing. The only reasonable conclusion is that the applications should be summarily dismissed. Commonwealth Bank v ACN 000 247 601 Pty Ltd [2006] FCA 1416 per Justice Jacobson at [45].
The Court orders that the applications, as amended, in
SYG 2109 of 2006 and SYG 655 of 2007 are summarily dismissed pursuant to r.13 and judgment is given to each Respondent pursuant to s.17A(1) of the Federal Magistrates Act 1999 (the “Act”).
The applicant filed a document on 19 May 2008 setting out the claims made by her.
On 15 May 2008, the respondent “the NSW Department of Health” was struck out of the amended application in both matters filed, as that respondent was named incorrectly. The correct name of the respondent is the State of NSW, which remains as a named respondent (transcript 15 May 2008 page 245).
Ms Lawrance sought to add a new respondent to her amended application namely Trent Newton as ninth Respondent. Ms Watson objected to Mr Newton being joined as he had not been a respondent and extra claims from those in the amended application were sought to be made against him (transcript 15 May 2008 page 245 line 10).
Ms Watson stated that the claim had not been made within 28 days of the terminated complaint (s.46PO(2) supra). The Court did not allow further time for making the application against Mr Trent Newton, and his name was struck out as a respondent to the amended application (transcript 15 May 2008 page 248 lines 12-20). Ms Watson objected previously to Trent Newton being joined as a respondent (transcript
27 April 2007 page 1 line 9). He was not joined as a respondent.
He is not a respondent to either matter.
Application SYG 655 of 2007
The application by Ms Lawrance in matter SYG 655 of 2007 was filed with the Court on 26 February 2007.
The applicant filed points of claim on 5 April 2007.
The applicant filed an amended application on 19 April 2007 and another amended application on 15 May 2008. The NSW Department of Health (the State of NSW) was struck out of that amended application on 15 May 2008.
The applications stem from complaints to HREOC and the termination of those complaints by Karen Toohey, Delegate of the President, by Notice dated 6 February 2007. After considering the information provided by the applicant, the Delegate sets out her decision terminating the complaint as follows:
“My decision
I have carefully considered all of the information provided by you and I must inform you that I have decided to terminate these complaints on the basis that I am satisfied that they are lacking in substance and misconceived, pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. I have also decided to terminate the complaint against Ms O’Neill about an alleged act in 1995 on the basis that it was lodged more than twelve months after the alleged act of discrimination pursuant to section 46PH(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986. I have provided my reasons below.
Reasons for my decision
Complaint against the AAT and members and staff of the AAT
From the information provided by you, I am satisfied that there is insufficient evidence to show that the alleged actions of the AAT or any members or staff of the AAT constitute discrimination on the basis of an imputed disability or on the basis of your sex or marital status or sexual harassment under the Sex Discrimination Act 1984.
Section 5 of the Disability Discrimination Act 1992 provides that a person is discriminated against when they are treated less favourably on the basis of a disability (which includes imputed disability) than a person without that disability or imputed to have that disability was or would have been in the same or not materially different circumstances. Section 5 of the Sex Discrimination Act 1984 provides that discrimination occurs when a person is treated less favourably on the basis of their sex than a person of the opposite sex was or would have been in the same or not materially different circumstances. Section 6 of the Sex Discrimination Act 1984 provides that direct discrimination occurs when a person is treated less favourably on the basis of their marital status than a person of a different marital status was or would have been in the same or not materially different circumstances.
I am satisfied that there is insufficient evidence provided by you to show that there is a link between the less favourable treatment you allege and any imputed disability or any ground under the Sex Discrimination Act 1984. I have carefully considered all of the information and I am satisfied that you have provided no evidence, other than your belief, that an imputed disability or any ground under the Sex Discrimination Act 1984 were reasons for the alleged acts. In any complaint of discrimination, the onus lies on the complainant to provide sufficient information for me to be satisfied that the complaint is not lacking in substance. I am not satisfied that this is the case here and so I have decided to terminate this aspect of your complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that I am satisfied that the complaint is lacking in substance.
In relation to your claims that the acts of a person placing a pen in their mouths (sic) constitutes indirect sex, marital status and disability discrimination, I am satisfied that this complaint is lacking in substance. I am satisfied that there has been no condition, requirement or practice with which you could not comply because of your sex, marital status or disability. I have therefore terminated the complaint of indirect discrimination on the basis that it is lacking in substance pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
In relation to your allegations of sexual harassment by Senior Member Allen, Senior Member Kelly, Member N Isenberg, Deputy President Purvis, Mr Stephen Shepherd, Ms Kim Richardson and Ms Preethi Nimmagadda, I am satisfied that your complaints are lacking in substance. I am satisfied that the placing of a pen in a person’s mouth in the circumstances you describe does not constitute conduct of a sexual nature and so does not meet the definition of sexual harassment in section 28A of the Sex Discrimination Act 1984.
Complaint against the Commonwealth of Australia – CRS Australia and the Department of Family and Community Services and Indigenous Affairs and the State of NSW – Department of Health and the Guardianship Tribunal.
I have also terminated your complaints that the Commonwealth of Australia – CRS Australia and the Department of Family and Community Services and Indigenous Affairs and the State of NSW – Department of Health and the Guardianship Tribunal are involved in the alleged unlawful discrimination and sexual harassment. There is no evidence apart from your belief that these respondents were at all connected with the AAT or its members or staff in the alleged acts of pens being placed in mouths. Further, as I am satisfied that the primary complaints about the pens being placed in mouths are lacking in substance I am also satisfied that any complaint against any other person or agency is lacking in substance and misconceived and have terminated this aspect of your complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
Complaint against St Vincent de Paul
In relation to your complaint against St Vincent de Paul concerning the conduct of a person named “Tim” who was a volunteer at St Vincent de Paul, I have terminated this complaint on the basis that it is lacking in substance for the reasons that you have not provided sufficient details about who the respondent is, that I am satisfied that a person placing a pen in his mouth does not meet the definition of sexual harassment, and there is no evidence apart from your belief that St Vincent de Paul is at all connected to the alleged program under the DSA that you claim has been instituted by various Commonwealth and State government departments. I have therefore terminated this complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.
Complaint against the AGS and staff
I have also terminated your complaints against the AGS and Ms Pownall, Ms McNeil, Ms Lye and Mr Markus, employees of the AGS, on the basis that they are lacking in substance and misconceived pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. I am satisfied that these respondents were not in a relationship with you that would bring their alleged acts under the legislation administered by the Commission, as they were acting as the legal representatives of other people or organisations in actions that you brought in the AAT. I am also satisfied that you have not provided sufficient details of what acts they are alleged to have done or how these acts would constitute unlawful discrimination as defined in the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992.
Complaints against Ms Annette O’Neill
I have terminated your complaint against Ms Annette O’Neill about her placing her tongue in her cheek in 1995 on the basis that it was lodged more than twelve months after the alleged act occurred. I am satisfied that, as you have noted in your correspondence, you have been aware of the Commission’s legislation since at least 2003 when you first lodged a complaint of sexual harassment. Given this, and my view that your complaint does not appear likely to be successful at hearing if the matter should proceed there, I have decided to exercise my discretion to terminate this complaint pursuant to section 46PH(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986.
In relation to your complaint that Ms O’Neill lied in hearing (sic) of the AAT on 1 November 2004, I am satisfied that this complaint is lacking substance and misconceived. There was no relationship between you and Ms O’Neill at that time that would bring your concerns under the discrimination provisions of the Disability Discrimination Act 1992 or the Sex Discrimination Act 1984 and also you have provided no information apart from your stated belief of discrimination that would show what she said, or how this constitutes less favourable treatment in an area of public life covered by the Commissions legislation.
Complaints of victimisation against all the respondents
In relation to your complaints of victimisation against all of the respondents under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992, you have provided insufficient evidence to show that you experienced a detriment because of your asserting any rights under the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992. Merely stating that you have taken action against another person in the past and therefore you have been victimised is not sufficient for a complaint of victimisation, particularly as in a complaint of victimisation the standard of proof is high. You have provided no information in relation to your claims against the respondents that would show that you have been victimised by them, apart from your stated belief. I am satisfied that this aspect of your complaint is misconceived and lacking in substance and have terminated this aspect of your complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.”
The Delegate decided to terminate the complaints on the basis that “I am satisfied that they are lacking in substance and misconceived… I have also decided to terminate the complaint against Ms O’Neill about an alleged act in 1995 on the basis that it was lodged more than twelve months after the alleged act of discrimination.”
Section 46PH(1)(b) provides that the President may terminate the complaint on any one of the following grounds:
“(b) the complaint was lodged more than 12 months after the alleged unlawful discrimination took place.”
The Delegate was correct in terminating the complaint.
a)The Delegate found that there was “insufficient evidence to show that the alleged acts of the AAT or any members or staff of the AAT constitute discrimination on the basis of an imputed disability or on the basis of your sex or marital status or sexual harassment…”
b)The Delegate found “that there is insufficient evidence provided by you to show that there is a link between the less favourable treatment you allege and any imputed disability or any ground under the Sex Discrimination Act 1984. I have carefully considered all the information and I am satisfied that you have provided no evidence, other than your belief that an imputed disability on any ground under the Sex Discrimination Act 1984 were reasons for the alleged acts… I have decided to terminate this aspect of your complaint … on the basis that I am satisfied that the complaint is lacking in substance”.
c)The Delegate found that “In relation to your claims that the acts of a person placing a pen in their mouths (sic, mouth) constitutes indirect sex, marital status and disability discrimination, I am satisfied that this complaint is lacking in substance. I am satisfied that there has been no condition, requirement or practice with which you could not comply because of your sex, marital status or disability. I have therefore terminated your complaint of indirect discrimination on the basis that it was lacking in substance”.
d)The Delegate stated that “In relation to the allegations of sexual harassment by Senior Member Allen, Senior Member Kelly, Member N Isenberg, Deputy President Purvis, Mr Stephen Shepherd, Ms Kim Richardson and Ms Preethi Nimmagadda, I am satisfied that your complaints are lacking in substance. I am satisfied that the placing of a pen in a person’s mouth in the circumstances you describe does not constitute conduct of a sexual nature and so does not meet the definition of sexual harassment…”
e)The Delegate “also terminated your complaints that the Commonwealth of Australia – CRS Australia and the Department of Family and Community Services and Indigenous Affairs and the State of NSW – Department of Health and the Guardianship Tribunal are involved in the alleged unlawful discrimination and sexual harassment. There is no evidence apart from your belief that these respondents were at all connected with the AAT or its members or staff in the alleged acts of pens being placed in mouths. Further, as I am satisfied that the primary complaints about the pens being placed in mouths are lacking in substance I am also satisfied that any complaint against any other person or agency is lacking in substance and misconceived and have terminated this aspect of your complaint…”
f)The Delegate found that “In relation to your complaint against St Vincent de Paul concerning the conduct or a person called Tim… I have terminated this complaint on the basis that it is lacking in substance for the reasons that you have not provided sufficient details about who the respondent is, that I am satisfied that a person placing a pen in his mouth does not meet the definition of sexual harassment, and there is no evidence apart from your belief that St Vincent de Paul is at all connected to the alleged program under the DSA that you claim has been instituted by various Commonwealth and State government departments. I have therefore terminated this complaint…”
g)The Delegate “also terminated your complaints against the AGS and Ms Pownall, Ms McNeill, Ms Lye and Mr Markus, employees of the AGS, on the basis that they are lacking in substance and misconceived … I am satisfied that these respondents were not in a relationship with you that would bring their alleged acts under the legislation administered by the Commission, as they were acting as the legal representatives of other people or organisations in actions that you brought in the AAT. I am also satisfied that you have not provided sufficient details of what acts they are alleged to have done or how these acts would constitute unlawful discrimination as defined…”
h)The Delegate “terminated your complaint against Ms Annette O’Neill about her placing her tongue in her cheek in 1995 on the basis that it was lodged more than twelve months after the alleged act occurred…”
i)The Delegate found “In relation to your complaint that
Ms O’Neill lied in hearing (sic; “in the hearing”) of the AAT on 1 November 2004, I am satisfied that this complaint is lacking substance and misconceived. There was no relationship between you and Ms O’Neill at that time that would bring your concerns under the discrimination provisions of the Disability Discrimination Act 1992 or the Sex Discrimination Act 1984 and also you have provided no information apart from your stated belief of discrimination that would show what she said, or how this constitutes less favourable treatment in an area of public life covered by the Commissions legislation”.j)The Delegate found “In relation to your complaint that
Ms O’Neill lied in hearing (sic; “in the hearing”) of the AAT on
1 November 2004, I am satisfied that this complaint is lacking substance and misconceived. There was no relationship between you and Ms O’Neill at that time that would bring your concerns under the discrimination provisions of the Disability Discrimination Act 1992 or the Sex Discrimination Act 1984 and also you have provided no information apart from your stated belief of discrimination that would show what she said, or how this constitutes less favourable treatment in an area of public life covered by the Commissions legislation”.k)The Delegate found “In relation to your complaints of victimisation against all of the respondents under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992, you have provided insufficient evidence to show that you experienced a detriment because of your asserting any rights under the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992. Merely stating that you have taken action against another person in the past and therefore you have been victimised is not sufficient for a complaint of victimisation, particularly as in a complaint of victimisation the standard of proof is high. You have provided no information in relation to your claims against the respondents that would show that you have been victimised by them, apart from your stated belief. I am satisfied that this aspect of your complaint…”
The Court refers again to s.46PO of the HREOC Act (supra).
Ms Lawrance’s complaint was terminated by the Delegate of the President, and notice was given to her in relation to the termination.
The only matters arising from the matters that were before HREOC that can be brought before this Court are:
·Matters relating to a respondent to the terminated complaint that allege unlawful discrimination that is the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint, or arises out of the same (or substantially the same) acts, on issues or practices that were the subject of the terminated complaint.
To the extent that the matters before the Court do not meet those criteria, they are not properly before the Court and are dismissed.
All evidence in the applications to the Court has been put on affidavit. If the matters proceeded to final determination it would be on the basis of the affidavits that have been filed, the other material and the submissions. The Court has considered all the material in the documents filed. It has no reason to make findings that differ from the findings by HREOC in the decision terminating the complaint (and summarised above). The Court makes the same findings. The Court finds the applicant’s claims to be lacking in substance, misconceived, and that the applicant has no reasonable prospect of successfully prosecuting the proceedings or claims.
As stated above, a proceeding does not need to be hopeless or bound to fail for it to have “no reasonable prospect of success”. The Court finds that the applicant’s applications are hopeless and bound to fail (s.17A(3) Federal Magistrates Act 1999). The applicant provides no evidence, apart from her beliefs regarding things that she believes have happened to her. Apart from the pen-in-the mouth conduct she has provided no evidence to connect any of the incidents with any of the respondents.
The pen in mouth incidents described do not constitute conduct of a sexual nature and are not within the definition of sexual harassment.
It does not constitute indirect sex, marital status or disability discrimination. The allegations lack substance and have no reasonable prospect of success. All complaints in relation to those allegations are dismissed.
In matters SYG 2109 of 2006 and SYG 655 of 2007, the State of NSW by Notice of Motion filed on 2 April 2007 seeks orders pursuant to Rules 13.10 and 13.11 as follows:
“1.The proceeding be dismissed as against the abovenamed respondents on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding [Rule 13.10(a)];
2.The proceeding be dismissed as against the abovenamed respondents on the basis that it is vexatious [Rule 13.10(b)]);
3.The proceeding be dismissed against the abovenamed respondents on the basis that it is an abuse of the process of the Court [Rule 13.10(b)].
4.Further, or in the alternative, the fourth and sixth respondents seeks orders pursuant to Rule 13.11(3) that
(a)any proceeding instituted by the applicant in relation to those respondents may not be continued without the leave of the Court;
(b)that the applicant may not institute proceeding against the person aggrieved without leave of the Court.
5.That the applicant pay the First, Second and Fourth – Sixth Respondents’ costs.”
By application filed on 30 March 2007 in matter SYG 655 of 2007 the Guardianship Tribunal set out the orders it seeks and the basis for them as follows:
“Orders sought by the Guardianship Tribunal
1.Pursuant to s.17A of the Federal Magistrates Act 1999 and/or r.13.10 of the Federal Magistrates Court Rules 2001, the proceeding be dismissed as against the Guardianship Tribunal.
2.That the Guardianship Tribunal have leave to use the Applications, Points of Claim and affidavits filed by the Applicant in each of the following proceedings before this Honourable Court, SYG2109 of 2006, SYG3230 of 2006 and SYG654 of 2007, for the purpose of prosecuting this Motion.
3.That the Applicant pay the costs incurred by the Guardianship Tribunal in connection with the proceedings as agreed or assessed.
Basis on which the orders are sought
1.The Applicant’s claim as presently formulated against the Guardianship Tribunal:
(a)fails to disclose any specific acts or conduct for which the Guardianship Tribunal is said to be liable;
(b)does not enable the Guardianship Tribunal to know the claim put against it or properly respond to the claim or prepare its defence to the claim and is embarrassing;
(c)has no reasonable prospects of success;
(d)is frivolous or vexatious, including because:
(i) (as far as the Guardianship Tribunal can determine) the same general claims are being made against the Guardianship Tribunal, or were sought to be made, in other proceedings brought by the Applicant which are currently before this Honourable Court, namely SYG2109 of 2006, SYG3230 of 2006 and SYG654 of 2007;
(ii) the claim alleges that orders have been made by the Guardianship Tribunal in relation to the applicant in circumstances where the applicant has been informed on multiple occasions that the Guardianship Tribunal has no record of any application being received in relation to the applicant, or any orders being made in relation to the applicant; and the applicant has no reasonable or proper basis for believing that such orders exist; and
(e)constitutes an abuse of process, having regard to:
(i) each of the matters set out at (a) to (d) above; and
(ii) the fact that the allegations made against the Guardianship Tribunal bear no alleged or apparent relationship with what appears to be the primary focus of this proceeding, namely claims of unlawful discrimination arising out of the certain persons placing pens in or near their mouths and other conduct which occurred during hearings or other attendances at the Administrative Appeals Tribunal.
2.The applicant’s claim alleges that the Guardianship Tribunal has made orders in respect of her under the Guardianship Act 1987. Although the Guardianship Tribunal has no record of any orders being made in respect of the applicant, s.73 of the Guardianship Act 1987 provides that no proceedings shall lie against the Tribunal or any of its members or members of staff where acts are done in good faith and with reasonable care. The applicant has not provided any basis to overcome this prohibition. Further, this Court cannot deal with a claim with respect to any order for medical treatment made by the Tribunal. Appeals from orders of the Guardianship Tribunal lie to either the Administrative Decisions Tribunal or the Supreme Court (ss.67 and 67A of the Guardianship Act 1987).
3.Allowing the Application to continue against the Guardianship Tribunal will involved (si; “involve”) unnecessary expenditure of State resources, and in all the circumstances is contrary to the public interest.”
By application dated 29 March 2007 in SYG 2109 of 2006 the Guardianship Tribunal set out the orders it seeks and the basis for them as follows:
“Orders sought by the Guardianship Tribunal
1.Pursuant to s.17A of the Federal Magistrates Act 1999 and/or r.13.10 of the Federal Magistrates Court Rules 2001, the proceeding be dismissed against the Guardianship Tribunal.
2.That the Guardianship Tribunal have leave to use the Applications, Points of Claim and affidavits filed by the Applicant in each of the following proceedings before this Honourable Court, SYG2109 of 2006, SYG3230 of 2006 and SYG654 of 2007, for the purpose of prosecuting this Motion.
3.That the Applicant pay the costs incurred by the Guardianship Tribunal in connection with the proceeding, as agreed or assessed.
Basis on which the orders are sought
1.The Applicant’s claim as presently formulated against the Guardianship Tribunal:
(a)fails to disclose any specific acts or conduct for which the Guardianship Tribunal is said to be liable;
(b)does not enable the Guardianship Tribunal to know the claim put against it or properly respond to the claim or prepare its defence to the claim, and is embarrassing;
(c)has no reasonable prospects of success;
(d)is frivolous or vexatious, including because:
(i) (as far as the Guardianship Tribunal can determine) the same general claims are being made against the Guardianship Tribunal, or were sought to be made, in other proceedings brought by the Applicant which are currently before this Honourable Court, namely SYG2109 of 2006, SYG3230 of 2006 and SYG654 of 2007;
(ii) the claim alleges that the orders have been made by the Guardianship Tribunal in relation to the applicant in circumstances where the applicant has been informed on multiple occasions that the Guardianship Tribunal has no record of any application being received in relation to the applicant; or any orders being made in relation to the applicant; and the applicant has no reasonable or proper basis for believing that such orders exist; and
(e)constitutes an abuse of process, having regard to:
(i) each of the matters set out at (a) to (d) above; and
(ii) the fact that the allegations made against the Guardianship Tribunal bear no alleged or apparent relationship with what appears to be the primary focus of this proceeding, namely claims of unlawful discrimination arising out of certain persons placing pens in or near their mouths and other conduct which occurred during hearings or other attendances at the Administrative Appeals Tribunal.
2.The applicant’s claim alleges that the Guardianship Tribunal under the Guardianship Act 1987 has made orders in respect of her. Although the Guardianship Tribunal has no record of any orders being made in respect of the applicant, s.73 of the Guardianship Act 1987 provides that no proceedings shall lie against the Tribunal or any of its members or members of staff where acts are done in good faith and with reasonable care. The applicant has not provided any basis to overcome this prohibition. Further, this Court cannot deal with a claim with respect to any order for medical treatment made by the Tribunal. Appeals from orders of the Guardianship Tribunal lie to either the Administrative Decisions Tribunal or the Supreme Court (ss.67 and 67A of the Guardianship Act 1987).
3.Allowing the Application to continue against the Guardianship Tribunal will involved (sic; “involve”) unnecessary expenditure of State resources, and in all of the circumstances is contrary to the public interest.”
By Notice of Motion dated 30 March 2007 the Commonwealth Respondents seek orders as follows:
“On the 19th day of April 2007 at 10.15a.m., the First – Ninth and Twelfth – Seventeenth Respondents move the Court for the following orders:
1.The proceeding, in so far as it relates to 3rd – 6th respondents be dismissed on the basis that those respondents are subject to the immunity provided by s.60(1) of the Administrative Appeals Tribunal Act 1975.
2.The proceeding, in so far as it relates to the 7th and 8th respondents be dismissed on the basis that those respondents are subject to the immunity provided by s.60(1B) of the Administrative Appeals Tribunal Act 1975.
3.The proceeding, in so far as it relates to the giving of evidence of the seventeenth respondent in proceedings in the Administrative Appeals Tribunal be dismissed on the basis that the seventeenth respondent is subject to the immunity provided by s.60(3) of the Administrative Appeals Tribunal Act 1975.
4.The proceeding be dismissed as against the abovenamed respondents on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding [Rule 13.10(a)];
5.The proceeding be dismissed as against the abovenamed respondents on the basis that it is vexatious [Rule 13.10(b)];
6.The proceeding be dismissed against the abovenamed respondents on the basis that it is an abuse of the process of the Court [Rule 13.10(b)].
7.Further, or in the alternative, the twelfth and thirteenth respondents seeks orders pursuant to Rule 13.11(3) that
(a)any proceeding instituted by the applicant in relation to those respondents may not be continued without leave of the court;
(b)that the applicant may not institute any proceeding against the person aggrieved without leave of the Court.
5.That the applicant pay the First – Ninth and Twelfth – Seventeenth Respondents’ costs.”
The Court refers to the provisions of s.17A of the Federal Magistrates Court Act 1999 and to r.13.10 as set out above. Rule 13.11 provides:
“Vexatious litigants
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a)that any proceeding instituted by the person may not be continued without the leave of the Court; and
(b)that the person may not institute a proceeding without leave of the Court.
(2)An order under subrule (1) may be made:
(a)on the Court's own motion; or
(b)on the application of the Attorney‑General or Solicitor‑General of the Commonwealth or of a State or Territory; or
(c)on the application of the Registrar.
(3)If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a)that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b)that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
(4)A person seeking an order under this rule must file an application.
(5)The Court may rescind or vary any order made under this rule.
(6)The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.”
The Court refers also to the decision in SIBIC v Salisbury & Anor (supra) (Court’s emphasis).
The Court finds all of the applicant’s claims to be unarguable as there is no arguable case advanced, and there is no reasonable prospect that an arguable case could be advanced. There is no real question of fact or law to be determined in the applications by the applicant. The case for summary dismissal is clear and beyond reasonable doubt. Summary dismissal will not prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success. No injustice will be done by summary dismissal. There is no evidence which could be reasonably believed that would enable the applicant to succeed at a final hearing.
The only reasonable conclusion is that the applications should be summarily dismissed.
The Court orders that the application and amended applications in matter SYG 655 of 2007 are summarily dismissed pursuant to
r.13.10 and summary judgment is given to each respondent pursuant to s.17A(1) of the Act.
To allow the proceedings to continue beyond this point would be manifestly unfair to the Respondent Oorloff & Anor v Less & Ors [2004] FMCA 893 per Walters FM at [75], and bring the administration of justice into disrepute amongst right thinking people Hunter v Chief Constable of West Midlands Police (1982) AC 529 at 536.
There is clearly a public interest in finality of litigation, and it is oppressive for the respondents to have to concern themselves with two or more sets of proceedings (see post) dealing with, in essence, exactly the same matters Johnson v Gore Wood & Co (a firm) (2002) 2 AC 1.
Application SYG 2015 of 2006
Proceedings SYG 2015 of 2006 was commenced by application filed in the Federal Court on 14 June 2006 and was transferred to this Court by order dated 18 July 2006. On 17 November 2006 Smith FM made orders against joinder of various parties Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792. His Honour ordered the applicant to pay $1,250 costs. As at 7 April 2008 those costs had not been paid (Affidavit of Elizabeth Mee sworn 7 April 2008 paragraph 8).
Final judgment was delivered by Smith FM in that matter on
30 November 2006Lawrance v the Commonwealth of Australia & Anor (No.5) [2007] FMCA 1934. The Respondents to that matter were:
·The Commonwealth of Australia
·The State of NSW
·The Secretary, Department of Families, Community Services & Indigenous Affairs
·The General Manager, CRS Australia
·The Australian Government Solicitor
·Andras Markus
·The Registrar, Federal Court of Australia
·Kim Lackenby
·Michael Wall
·Michael Packer
His Honour described the issues before him in paragraphs 1 to 4 of his Judgment as follows:
“1.Ms Lawrance believes that many people with whom she has dealt have behaved towards her in a manner which imputed that she has a mental illness. She became convinced that their actions evidenced a Commonwealth government programme which administered involuntary medical treatment for her imputed condition. She unsuccessfully attempted to discover evidence of this programme in the files of NSW and Commonwealth agencies, and made complaints of discrimination by several people. During 2005 and 2006 she brought some matters to the Federal Court of Australia, and thereby came into contact with the personal respondents to the present application. They are officers of the Federal Court’s Sydney Registry, a judge’s associate, and a solicitor from the Australian Government Solicitor’s office. Ms Lawrance complains that they adopted ‘pen in mouth conduct’ as part of a programme to provide involuntary diagnostic and assessment services in relation to her imputed condition. She says that their conduct, and the programme of which it was part, was unlawful under the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1975 (Cth). She asks the court to declare that she has suffered unlawful discrimination, sexual harassment, and victimisation, and to order compensation, apologies and other remedies.
2.The Court’s jurisdiction in discrimination matters is confined by s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to the ambit of a complaint which was terminated by the President of the Commission, and to the respondents to the complaint. In the present matter, I decided at an interlocutory stage that Ms Lawrance’s application did not encompass complaints against persons other than the present respondents, nor against government agencies except to the extent that the conduct of the personal respondents in 2005 and 2006 was alleged to have evidenced and formed part of a programme or policy directed at her by Commonwealth and State agencies (see: Lawrance v Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792, Lawrance v Commonwealth of Australia & Ors (No.2) [2007] FMCA 797, Lawrance v Commonwealth of Australia & Ors (No.3) [2007] FMCA 806, Lawrance v Commonwealth of Australia & Ors (No.4) [2007] FMCA 1408, and Lawrance v Commonwealth of Australia [2007] FCA 1524). These rulings governed the evidence which I admitted at the hearing of the application. I have considered Ms Lawrance’s additional written submissions on my rulings, but have not been persuaded that they were wrong, nor that I should give further reasons for my conclusions as to the ambit of the application or on the other matters which I addressed in my interlocutory judgments.
3.After hearing all the relevant evidence, including oral evidence from Ms Lawrance and all the personal respondents, I have decided that her application fails at its factual foundations. Ms Lawrance did not, at any stage in the proceeding, tender evidence which gave any substance to her allegations that the personal respondents acted, either individually or together, pursuant to a programme, policy, understanding or arrangement which imputed her with mental illness or other impairment amounting to a “disability” under the Disability Discrimination Act 1992 (Cth). Nothing in their individual conduct imputed her with a disability, nor amounted to sexual harassment or discrimination under the Sex Discrimination Act 1975 (Cth). She was not victimised by any of them, nor by their employers nor other government agencies, as a result of her earlier complaints. She was treated no differently than any unimpaired litigant acting for herself or himself in similar circumstances. The conduct of the personal respondents was entirely innocent, and did not amount to any of the breaches of discrimination legislation which are alleged. There was no conduct on their part for which their employers, or the Commonwealth, or the State of NSW, are liable.
4.These conclusions are based upon my findings in relation to the nine incidents upon which Ms Lawrance’s complaints are based, and upon my consideration of all the evidence presented by the parties. I shall examine the incidents chronologically.”
At transcript of 15 May 2008 page 267 line 9 Ms Watson for the Commonwealth respondents states that she only seeks vexatious litigant orders in relation to the two respondents who are respondents in each and every one of those proceedings, being DFaCSIA and CRS; but that she makes summary dismissal applications in relation to all respondents (transcript 15 May 2008 page 267 line 46). The Court makes that order.
The applicant submits that as the respondents have not objected to the evidence in her affidavits the Court must accept that evidence (transcript 15 May 2008 page 269 line 1). First, the allegations in the applications are evidence of the applicant’s beliefs. The Court accepts that evidence of her beliefs, but finds that it provides no reasonable prospect for a successfully prosecuting the proceedings or claims
Secondly, there is evidence that the applicant saw various respondents involved in pen in mouth conduct. The Court accepts that evidence but has held that such conduct is not unlawful discrimination.
Thirdly, the Court accepts that the applicant has observed other matters, but there is nothing to connect these matters with the respondents.
Fourthly, respondents are not required to dispute matters in affidavits before bringing an application for summary dismissal. They are entitled to say that “even if all matters alleged in the affidavits are accepted by the Court, the applicant has no reasonable prospect of successfully prosecuting the proceeding on claim, and that the proceedings are vexatious and or an abuse of the process of the Court”.
Costs
The respondents seek their costs of conducting the litigation in
SYG 2109 of 2006 and SYG 655 of 2007. The usual situation in contested litigation is that costs follow the event; that is, the losing party pays the legal costs of the successful party conducting the case.
There is nothing in the legislation surrounding a human rights matter to say that it is not so. Furthermore, various human rights decisions provide for the losing party to pay the costs of the successful party; for instance Minns v New South Wales (No.2) [2002] FMCA 197 per Raphael FM at [13]:
“… I am satisfied that the superior courts have now made it clear what the law should be in relation to such applications in the anti-discrimination area and I am content to follow them.”
In Fetherston v Peninsula Health (No. 2) [2004] FCA 594 Heerey J explicitly rejected the argument that normal costs principles should not apply to cases brought under the HREOC Act and affirmed the general rule that a wholly successful defendant should receive his or her costs unless good reason is shown to the contrary [8].
A factor that may warrant a departure from the usual rule that costs will follow the event is in cases where there is a significant public interest element (Federal Discrimination Law (HREOC page 387)).
In Tom Ferguson v Virgin Blue Airlines Pty Ltd [2008] FCA 864 Bennett J set the maximum costs that could be awarded against the unsuccessful applicant in that human rights matter.
In Pitt v One Steel Reinforcing Pty Ltd [2008] FCA 923 Justice Gray ordered the unsuccessful applicant to pay the respondent’s costs in that human rights matter.
In Rana v Commonwealth of Australia [2008] FCA 907 Lander J awarded costs against the unsuccessful applicant in that human rights matter that was found to be an abuse of process, and the applicant had no reasonable prospect of successfully prosecuting the proceeding.
In Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 974 Justice Collier held that a human rights and/or discrimination case will not automatically be regarded as a proceeding in the public interest.
In Theodore Xiros v Fortis Life Assurance Ltd (2001) 162 FLR 433 Driver FM dismissed the application but declined to award costs to the respondent on the basis of a significant public interest element.
“ … His Honour stated:
All human rights proceedings contain some element of public interest in that the legislation is remedial in character, addressing the public mischief of discrimination. But the legislation confers private rights of action for damages. There will be many human rights proceedings where no sufficient public interest element can be shown: Physical Disability Council of NSW v Sydney City Council [1999] FCA 815…
Wilcox J commented as follows in Fernely v The Boxing Authority of New South Wales (2001) 115 FCR 306:
Although the applicant fails, it is not clear to me that she should be required to pay the respondents’ costs. Her case in relation to s 22 was arguable. Her argument in relation to s 42, which was disputed by the respondents, is correct. Perhaps more importantly, the case has served the public interest in clarifying important issues of discrimination law. [97].
In Jacomb v Australian Municipal Administrative Clerical & Services Union [2004] FCA 1600 Crennan J accepted that there was an element of public interest in the matter, and ordered the unsuccessful applicant to pay 75% of the respondent’s costs.
Her Honour stated as follows:
There is no set formula for determining whether a case is brought in the public interest. The decision made in the present proceedings may act as a useful guide for other unions, whose rules are affected by the operation of s 7 of the Sex Discrimination Act and, to this extent, there is a degree of public interest in having the dispute judicially determined. However, the applicant stood to benefit personally from the decision and, in this regard, I could not be satisfied that the applicant brought the proceeding entirely in the public interest. The public interest was subservient to, although coincided with, his own interests.”
In AB v State of New South Wales (No.2) [2005] FMCA 1624 Driver FM stated:
“However, ordinarily in human rights proceedings a claimant is exercising a private right to claim damages. There will frequently be an insufficient public interest element to outweigh the general principle that costs should follow the event in such proceedings. [see Physical Disability Council of NSW v Sydney City Council].”
His Honour took into account the fact that there was no damages claim but simply the seeking of a right of access to a public school (which raised an issue of public importance) in deciding that there should be no order as to costs [5] to [7]. (Federal Discrimination Law HREOC page 389).
In Minns (supra) Raphael FM held that where proceedings seek an “exclusively personal benefit” (such as damages) the public interest element of a matter is as much diminished. His Honour added at [13] “if the public interest is to be used to mitigate the normal order for costs then that public interest must go further than mere precedent value”.
In Theodore Xiros Driver FM stated at [23] that: “Another circumstance that may warrant a departure from the general principle is where the unsuccessful party is unrepresented and was not in a position to make a proper assessment of the strength or weakness of his case, and, hence, the risk associated with the litigation”. This does not apply to Ms Lawrance: she was unsuccessful in Lawrance v The Commonwealth of Australia & Anor (No.5) supra and was ordered to pay costs. On appeal she was ordered to lodge security for costs; Justice Windeyer ordered her to pay costs; Justice Bell ordered her to pay costs in Lawrance v Pickles; Justice Flick ordered Ms Lawrance to pay costs in Lawrance v Commonwealth; Justice Buchanan ordered
Ms Lawrance to pay costs in Lawrance v Commonwealth.
Ms Lawrance was in a position to make a proper assessment of the weakness of her case here and of the risk of being ordered to pay costs but has chosen to bring multiple proceedings.
Ms Lawrance submits that she should not have to pay costs as it is in the public interest that her matters be determined. That argument only has merit where an applicant does not have a personal interest in the matter that outweighs the public interest. Ms Lawrance’s claims are almost entirely personal; she seeks apologies and damages.
The applicant seeks “damages to be assessed by placing me in the position I would have been in had I not been discriminated against unlawfully … I am seeking a replacement property because I was forced to sell my home. I seek aggravated and exemplary damages too, for disregard of rights”. (Point of claim filed 5 April 2007 in SYG 655 of 2007 – [49]). “The applicant is to be given a written apology” (Application filed on 26 February 2007 in SYG 655 of 2007 – [18]).
Ms Lawrance’s personal interest in these matters outweighs the public interest, if any, in determining whether she has been imputed with a mental illness and whether she has been placed on a programme.
In these matters there is little, if any public interest in their determination. The respondents should not be denied their costs.
If any additional costs have been obviously incurred beyond those provided by the scale in the Federal Magistrates Court Rules 2001, it is appropriate that costs be awarded to properly represent such expenses. SZLCW v Minister for Immigration & Anor [2007] FMCA 1663.
The Court notes the evidence in the affidavit of Elizabeth Mee filed on 7 April 2008 in SYG 655 of 2007 that the “total costs incurred by the State of New South Wales in responding to various applications referred to in this affidavit now exceeds $113,000. None of those costs have yet been recovered from Ms Lawrance” [28], and “the total costs incurred by the Guardianship Tribunal in responding to the various applications referred to in this affidavit now exceeds $37,000. None of those costs have yet been recovered from Ms Lawrance” [29].
The Respondents’ applications for summary dismissal were filed at an appropriate stage of the proceedings. On 1 August 2007 the Court ordered that the applicant file no further affidavits in the matters 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 the proceeding (r.15.01(b)).
The Court ordered on 26 October 2007 that the last order above be vacated to allow the applicant to file and serve further material evidence within 7 days of 26 October 2007, and to file and serve written submissions within 21 days of her receipt of the written submissions by the respondent (Lawrance v The Commonwealth of Australia & Ors; Lawrance v AAT & Ors [2007] FMCA 1478 [64] and [65]).
The Court orders:
a)That Ms Lawrance pay the costs of the Respondents to her actions, and of their applications for summary dismissal.
b)That all respondents who have incurred legal costs in these matters are entitled to their costs. They are entitled to their costs incurred since the commencement of proceedings before the Court in June 2006, including costs incurred in relation to interlocutory matters (Lawrance v Commonwealth of Australia; Lawrance v AAT & Ors supra).
c)The Court certifies that it was reasonable for the respondents to employ an advocate and instructing solicitor for all parts of the proceedings (r.21.15).
d)
The costs are to be taxed on the Federal Court scale by the Registrar under Order 62 of the Federal Court Rules 2001
(r. 21.02(2)(c)).
The Court has considered the decision of Federal Magistrate Cameron in matter SYG 654 of 2007 Lawrance v Watson & Ors [2008] FMCA 984. That matter is referred to earlier in this decision.
The respondents to that application by Ms Lawrance include the same core respondents as those in the other matters being considered in the present decision; they include the Commonwealth of Australia, CRS, DFaCSIA, State of NSW and the Guardianship Tribunal.
In SYG 654 of 2007 the applicant sought orders that:
a)She be given an apology by, and awarded damages including aggravated and exemplary damages against, all respondents.
b)All programme and services provided to and in relation to her under the DSA … cease.
c)That all orders and powers granted to the Guardianship Tribunal under the Guardianship Act in relation to her be revoked or terminated (Ibid[1]).
The applicant’s claims were:
a)Imputed disability discrimination under the DDA.
b)Sex and marital status discrimination and sexual harassment under the SDA.
c)Victimisation under the DDA and SDA.
The applicant complained to HREOC that she had “been imputed with a disability” (Ibid [5]).
The applicant claimed that all of the respondents engaged in unlawful discrimination, harassment or victimisation towards her contrary to the DDA, including the administration of Commonwealth programmes (Ibid [6]).
It was claimed that the first respondent “placed a pen in her mouth as she sat at the bar table”. (Ibid [5]).
The applicant claimed that “the pen in mouth conduct … was part of an unlawfully discriminatory program under the DSA … implemented in conjunction with unlawfully discriminatory … orders … under the NSW Guardianship Act” (Ibid [7]).
The applicant alleged that “her house had been unlawfully entered … as part of a systematic course of conduct imputing to her psychiatric disability”. (Ibid [9]).
The applicant claimed “the unlawfully discriminatory implementation of Part III DSA services” to her (Ibid [9]).
The applicant claimed that the first and second respondents “imputed to her a psychiatric disability (Ibid [22(a)]).
The NSW and Commonwealth respondents applied for summary dismissal.
His Honour decided at [54] that “I cannot conclude that the applicant has reasonable prospects of success in these proceedings … The existence of the DSA program is no more than speculation … I do not draw the conclusion that it is even arguable that the DSA program existed or exists”. The Court agrees with those findings.
This instances why it is an abuse of process for the applicant to be seeking judgment on the same issues between the same parties from various members of the Court.
The Court refers to the decision in SZAJB v Minister for Immigration & Citizenship [2008] FCAFC 75 per Justice French at [37-39]:
“37 The history of the matter and of the proceedings associated with it has been set out earlier in these reasons. The Federal Magistrates Court, like the Federal Court, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided.
The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 589. The power of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing. As Lord Halsbury said in 1889:
My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.
...
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.
Reichel v Magrath [1889] 14 App Cas 665 at 668
The decision did not turn upon any finding of res judicata or issue estoppel. Although those doctrines could have been available, as Handley JA said in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (at 202):
... the availability of a narrow ground for decision does not displace the actual ratio if the court decides the case on a wider basis ...
See also Walton v Gardiner (1993) 177 CLR 378 in which Mason CJ, Deane and Dawson JJ observed (at 393):
... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
38 The preceding cases and other authorities on the point were discussed in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699. As I said in that case (at [66]):
The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined.
39 It is sufficient to say that the proceedings brought in the Federal Magistrates Court and the subject of the present application for leave to appeal did constitute an abuse of process. No encouragement should be given to their continuance even if there were an arguable case about the validity or operation of s 477 of the Act. The success of that argument would not affect the character of the proceedings as an abuse of process. In my opinion therefore leave should be refused.”
It is an abuse of process to not raise all issues in the initial proceedings. Rana v Commonwealth of Australia [2008] FCA 907 per Lander J at [58]:
“58 There is no doubt that the issues which are said to raise to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 146 FCR [10]. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse.”
The Court has found in the current matters that the applicant has no reasonable prospect of successfully prosecuting the same claims against the same core respondents. It should be noted that Ms Watson is alleged to be a respondent to the matters now before the Court.
As she was not a respondent to the applications terminated by HREOC she cannot be a respondent to the current proceedings (s.46PO(1) HREOC Act 1986). However, that does not change the fact that the applicant has made the same claim against Ms Watson in proceedings that are before different members of the Court.
The Court agrees his Honour, Cameron FM that “existence of the DSA program is no more than speculation”. The Court examining his Honour’s decision demonstrates in a practical way the abuse of process by the applicant. The Court therefore declines to examine his Honour’s reasons further. In effect, the applicant is forum shopping in an endeavour to obtain a favourable determination from a member of the Court, notwithstanding that other members have decided against her. That is an abuse of process.
Special Benefit
The applicant makes application for payment of a special benefit under s.15 of the Federal Magistrates Act 1999. That section empowers the Court to make interlocutory orders as the Court thinks fit. Provisions for the payment of a special benefit appear in the Social Security Act 1991.
Section 729(1) of the Social Security Act provides:
“Qualification of special benefit
729.(1) A person is qualified for a special benefit for a period if the Secretary determines, in accordance with subsection (2), that a special benefit should be granted to the person for the period.
Note: special benefit is a discretionary benefit and is available only to a person who is not able to get any other income support payment (see paragraphs (2)(a) and (b) below).”
The applicant makes an alternative claim (points of claim para 146) for a s.603A exemption (under the Social Security Act). That section provides discretionary power to the Secretary to allow relief from an activity test in special circumstances.
The claim for a special benefit is not properly before the Court.
Nothing has been put to support an order under s.15 of the Federal Magistrates Act 1999, and as the application should be made under the Social Security Act the applicant has no reasonable prospect of successfully prosecuting the claim before this Court.
The Applications having been dismissed on the grounds as stated, the applicant’s application for special benefit or a s.603A exemption (points of claim filed on 9 January 2007 in SYG 2109 of 2006 paragraph 146) are dismissed.
Abbreviations
| CEDAW | Convention on the Elimination of all forms of Discrimination against Women – |
| CRS – | Commonwealth Rehabilitation Service |
| DFaCSIA | Department of Families and Community Services and Indigenous Affairs. – |
| DDA | Disability Discrimination Act. |
| ICCPR | International Covenant on Civil and Political Rights. |
| SAEP | Salvation Army Employment Plus |
| SDA | Sex Discrimination Act |
I certify that the preceding five hundred and ninety-three (593) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Kirra Vickerman
Date: 26 September 2008
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