Lawrance v Macarthur Legal Centre & Ors (No.2)
[2008] FMCA 1585
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v MACARTHUR LEGAL CENTRE & ORS (No.2) | [2008] FMCA 1585 |
| HUMAN RIGHTS – Disability discrimination – sex discrimination – victimisation – sexual harassment. PRACTICE & PROCEDURE – Summary Dismissal. PRACRICE & PROCEDURE – Costs – general order for costs. PRACTICE & PROCEDURE – Leave to proceed – whether applicant should have leave to continue a proceeding – no useful purpose. |
| Federal Magistrates Act 1999 (Cth), s.17A Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Federal Magistrates Court Rules 2001, rr.13.10, 13.11 |
| Lawrance v Macarthur Legal Centre & Ors [2008] FMCA 1420 Lawrance v Cth of Aust & Ors and Lawrance v AAT & Ors [2008] FMCA 1340 |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | MACARTHUR LEGAL CENTRE |
| Second Respondent: | MARGARET PANTALL |
| Third Respondent: | THE STATE OF NEW SOUTH WALES |
| Fourth Respondent: | GUARDIANSHIP TRIBUNAL (NSW) |
| Fifth Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| Sixth Respondent: | DEPARTMENT OF FAMILIIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| Seventh Respondent: | CRS AUSTRALIA |
| Eighth Respondent: | COLIN THOMSON |
| Ninth Respondent: | MICHAEL PASFIELD |
| Tenth Respondent: | MARILYN MOORE |
| File Number: | SYG 3139 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 November 2008 |
| Date of Last Submission: | 19 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Appearance for the First and Second Respondents: | Ms Bicknell |
| Solicitors for the First and Second Respondents: | Kennedys |
| Appearance for the Third and Fourth Respondents: | Ms Mee |
| Solicitors for the Third and Fourth Respondents: | I.V. Knight, Crown Solicitor |
| Appearance for the Fifth, Sixth, Seventh and Ninth Respondents: | Ms Watson |
| Solicitors for the Fifth, Sixth, Seventh and Ninth Respondents: | Australian Government Solicitor |
| Eighth and Tenth Respondents: | No appearance |
ORDERS
Leave to continue the application against the eighth and tenth respondents is refused.
No order for costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3139 of 2007
| AROHA LAWRANCE |
Applicant
And
| MACARTHUR LEGAL CENTRE |
First Respondent
| MARGARET PANTALL |
Second Respondent
| THE STATE OF NEW SOUTH WALES |
Third Respondent
| GUARDIANSHIP TRIBUNAL (NSW) |
Fourth Respondent
| THE COMMONWEALTH OF AUSTRALIA |
Fifth Respondent
| DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Sixth Respondent
| CRS AUSTRALIA |
Seventh Respondent
| COLIN THOMSON |
Eighth Respondent
| MICHAEL PASFIELD |
Ninth Respondent
| MARILYN MOORE |
Tenth Respondent
REASONS FOR JUDGMENT
Background
On 15th October 2008, I handed down judgment in these proceedings, summarily dismissing the applicant’s claims against the first, second, third, fourth, fifth, sixth, seventh and ninth respondents (Lawrance v Macarthur Legal Centre & Ors[1]). I also ordered that the applicant should pay the costs of those respondents. The respondents’ legal advisers sought and obtained an adjournment of the proceedings until today for the purpose of preparing affidavits in support of a claim for fixed costs.
[1] [2008] FMCA 1420.
When the matter came back before the Court today, the solicitors appearing for the respondents, Ms Bicknell, Ms Mee and Ms Watson all told the Court that a fixed costs order was no longer required and their clients would be satisfied with a general costs order, which they already had.
Consequently, there is no need to make any further order in respect of costs.
There was, however, another issue. The decision of 15th October 2008 did not have any effect on the applicant’s claim against the eighth respondent, Colin Thomson, or the tenth respondent, Marilyn Moore. It was my original intention to make directions regarding the continuing of the proceedings as against the two remaining respondents. Neither of these respondents is represented and neither respondent has appeared or sought to take any part in the proceedings.
That intention has now been overtaken by events, in that on 26th September 2008 Turner FM handed down a decision in Lawrance v Cth of Aust & Ors and Lawrance v AAT & Ors[2], which involved the same applicant and a number of respondents in the matter before me.
[2] [2008] FMCA 1340.
The legal advisers for the respondents drew the court’s attention to this decision and submitted that it was of some relevance to the matter before me. What appears to be relevant is that his Honour made some orders which appeared to have considerable effect on the remainder of the matter before me.
His Honour ordered.
(4)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 accept for filing, any further applications to the Court in relation to all 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.
At my direction, my Associate then wrote to the applicant, drawing her attention to those orders, and inviting her to make a submission, either in writing or orally, as to whether in her view the orders applied to her and, if so, whether leave should be granted for her to continue the proceeding against either or both of the respondents Thomson and Moore.
When the matter was mentioned before the Court today, the applicant conceded that the orders “probably” did apply to her application for relief against the eighth and tenth respondents. She told the court that she did not seek leave to continue against either respondent.
Conclusions
I am satisfied that Order 4(a) made by Turner FM in Lawrance v Cth of Aust & Ors and Lawrance v AAT & Ors applies to the present application, which was on foot at the time his Honour made the order. Consequently, the applicant would require leave of the Court to continue her action against both respondents.
The applicant has not sought leave in respect of either respondent.
The eighth respondent, Colin Thomson, has not been served. The applicant’s claim against him consists of an allegation that he committed an act of victimisation against her when she was working at the Macarthur Legal Centre by telephoning her and seeking legal advice on a real estate transaction that involved a complicated trust, pretending to be someone else.
The applicant deposed that Mr Thomson had been a colleague of hers at the Social Security Appeals Tribunal. She claims in her affidavit filed on 10th October 2007 that Mr Thomson’s call was an act of victimisation against her, arising out of her complaint against the late Dr Nygh and the Refugee Review Tribunal and her complaint about another man, with whom she claimed to have had a sexual relationship.[3]
[3] Affidavit of Aroha Lawrance filed 10 October 2007 at paragraphs [18]-[21].
It would appear that this complaint would be well-nigh impossible to prove and the applicant would be highly unlikely to succeed in her claim. I am satisfied that there would be no utility in granting leave to the applicant to continue this claim against Mr Thomson.
The applicant has served a copy of her application and supporting documents on Marilyn Moore, who is a medical practitioner. The applicant deposed that she consulted Dr Moore, who prepared a medical report, which is not in evidence. The applicant deposed in her affidavit filed on 10th October 2007 that, during a consultation with her, Dr Moore repeatedly raised a pen to her mouth and dropped it. The applicant states that she has since realised that Dr Moore intended this conduct to be understood as conduct of a sexual nature.
The applicant claims that Dr Moore participated in the provision to her of diagnostic and assessment services without her knowledge or consent. She complains that Dr Moore imputed to her psychiatric impairments which the applicant claims she does not have.[4]
[4] Applicant’s affidavit filed 10.10.2007 at [87]-[88].
The applicant would be highly unlikely to succeed in this claim. I am satisfied that no useful purpose would be served in granting leave to continue this claim against Dr Moore.
As leave has not been granted to continue this claim against either of the remaining respondents, I will direct that this application be removed from the list of cases awaiting finalisation. I make no order for costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 November 2008
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