Lawrance v Refugee Review Tribunal & Ors (No.1)
[2008] FMCA 1306
•17 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v REFUGEE REVIEW TRIBUNAL & ORS (No.1) | [2008] FMCA 1306 |
| HUMAN RIGHTS – Interlocutory Proceedings – Evidence – Matters of common Knowledge. PRACTICE & PROCEDURE – Notice of Motion – application to add a respondent – where respondent previously removed – whether name of respondent should be rejoined. PRACTICE & PROCEDURE – Title of party – where name of respondent department has been changed. |
| Disability Discrimination Act 1992 (Cth) Sex Discrimination Act 1984 (Cth) Evidence Act 1995 (Cth), s.144 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | COMMONWEALTH OF AUSTRALIA |
| Third Respondent: | CRS AUSTRALIA |
| Fourth Respondent: | DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| Fifth Respondent: | DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
| Sixth Respondent: | STATE OF NEW SOUTH WALES |
| Seventh Respondent: | NSW GUARDIANSHIP TRIBUNAL |
| Eight Respondent: | BEV SMITH |
| Ninth Respondent: | ANNE BRIMSON |
| Tenth Respondent: | JILL TOOHEY |
| Eleventh Respondent: | SUE MCILLHATTON |
| Twelfth Respondent: | PAULA CHRISTOFLANNI |
| Thirteenth Respondent: | JOHN GODFREY |
| Fourteenth Respondent: | MICHAEL PASFIELD |
| Fifteenth Respondent: | LYN ROGERS |
| File Number: | SYG 882 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 16 September 2008 |
| Date of Last Submission: | 16 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2008 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitor for the First, Second, Third, Fourth, Fifth, Eighth, Tenth, Eleventh and Fourteenth Respondents: | Ms Watson |
| Solicitor for the First, Second, Third, Fourth, Fifth, Eighth, Tenth, Eleventh and Fourteenth Respondents: | Australian Government Solicitor |
| Counsel for the Sixth and Seventh Respondents: | Mr Moorhouse |
| Solicitor for the Sixth and Seventh Respondents: | I.V. Knight, Crown Solicitor |
| Ninth, Twelfth, Thirteenth and Fifteenth Respondents | No appearance |
ORDERS
The Notice of Motion filed on 17 July 2008 is dismissed.
The title of the fourth respondent is changed to Department of Families, Housing, Community Services and Indigenous Affairs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 882 of 2008
| AROHA LAWRANCE |
Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
| COMMONWEALTH OF AUSTRALIA |
Second Respondent
| CRS AUSTRALIA |
Third Respondent
| DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Fourth Respondent
| DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
Fifth Respondent
| STATE OF NEW SOUTH WALES |
Sixth Respondent
| NSW GUARDIANSHIP TRIBUNAL |
Seventh Respondent
| BEV SMITH |
Eighth Respondent
| ANNE BRIMSON |
Ninth Respondent
| JILL TOOHEY |
Tenth Respondent
| SUE MCILLHATTON |
Eleventh Respondent
| PAULA CHRISTOFLANNI |
Twelfth Respondent
| JOHN GODFREY |
Thirteenth Respondent
| MICHAEL PASFIELD |
Fourteenth Respondent
| LYN ROGERS |
Fifteenth Respondent
REASONS FOR JUDGMENT
Application
The applicant has filed a Notice of Motion seeking to add a respondent to her application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for orders against the various respondents. The name of the particular respondent, Dr Nygh, had earlier been removed.
The applicant seeks to have Dr Nygh’s name restored.
Background
Dr Nygh the Principal Member of the Refugee Review Tribunal, the first respondent in these proceedings. The applicant claims that
Dr Nygh committed unlawful discrimination against her under various sections of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth). In her application she sought a written apology and damages.
The application first came before the Court on 26th May 2008, where I raised with the applicant the fact that I understood that Dr Nygh, being Dr Peter Nygh, was deceased and had been deceased for several years. The applicant was unprepared to concede that fact, submitting that the Human Rights and Equal Opportunity Commission had not raised that issue in its Notice of the 28th March 2008 terminating her complaint. The applicant had not served any court documents on Dr Nygh.
I adjourned the proceedings until 30th May 2008.
On 30th May 2008, I mentioned to the applicant that I believed it to be common knowledge that Dr Nygh had died some years before.
The applicant consented to the removal of Dr Nygh’s name as a respondent.
Notice of Motion
The applicant now seeks to restore Dr Nygh’s name as a party to the proceedings. In her affidavit in support of the Notice of Motion, the applicant makes the following assertions:
(1)When she consented to the removal of Dr Nygh’s name, the applicant did so on the basis of information that she now cannot assume to be reliable or accurate.
(2)The applicant submits that the issue of Dr Nygh’s death is not a matter of common knowledge under s 144 of the Evidence Act 1995.
(3)The Human Rights and Equal Opportunity Commission in its Notice of Termination listed Dr Nygh as a respondent and did not treat him as deceased.
(4)No document exists that can verify that Dr Nygh is deceased.
(5)The applicant looked at a website called the Ryerson Index which contained details of newspaper reports of deaths. Even though she found such an entry, she can no longer place any reliance on it. The applicant deposed in her affidavit:
Since 30 May 2008 it has come to my notice that false information is being placed on the internet specifically aimed at me or specifically there in case I peruse the website in question.[1]
(6)In another proceeding in the Federal Court, Ms Dale Watson, a solicitor from the office of the Australian Government Solicitor, told the judge that she did not know whether or not a party to that proceeding had been served with a Notice of Appeal. The applicant believed that there was no reason for Ms Watson to have said anything about the issue “unless she was involved in a hoax, or a Disability Services Act 1986 (Cth) programme in relation to me”.[2]
(7)The applicant had made unsuccessful attempts to serve documents on the person concerned, a solicitor, but he had left the business address that she had obtained from the website of the Law Society of New South Wales.
(8)The applicant submitted that it was incumbent on the respondents to prove that Dr Nygh is deceased.
(9)The applicant further submitted that she had been unfairly prejudiced by the removal of Dr Nygh’s name as a respondent to the proceedings.
[1] Affidavit of Aroha Lawrance affirmed 17 July 2008 at [7]
[2] Applicant’s affidavit at [8]
Ms Watson, who appeared for the first, second, third, fourth, fifth, eighth, tenth, eleventh and fourteenth respondents, submitted that
Dr Nygh’s death was a matter of common knowledge that was readily verifiable on a number of websites. There was no onus on the respondents to prove that fact and it was not in the interests of justice for Dr Nygh to be re-joined as a respondent.
Reasons
Section 144 of the Evidence Act 1995 provides:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to document the authority of which cannot be reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
Dr Peter Nygh was formerly the Principal Member of the Refugee Review Tribunal. His death on 19th June 2002 was widely reported in the media.
He was a professor of law at the University of Sydney from 1969 to 1973, after which time he became Professor of Law at Macquarie University Law School until 1979. He was then appointed Judge of the Family Court of Australia, from which he retired in 1993.
Numerous obituaries were published and are easily available by a search of the Internet. The former Solicitor-General, Mr David Bennett QC, wrote an obituary entitled “Peter Edward Nygh” which can be found at (2002) 76 Australian Law Journal 595. The Division of Law at Macquarie University published an obituary entitled “Vale Peter Nygh” in the Macquarie Law Notes newsletter for November 2002.
A Peter Nygh Memorial Lecture has been instituted. The inaugural memorial lecture in the late Dr Nygh’s honour was given on
30th September 2004 by the Hon. John Fogarty and the Hon Justice Michael Kirby AC CMG delivered a subsequent Memorial Lecture at the Twelfth National Family Law Conference in Perth on 23rd October 2006.I am satisfied that it is common knowledge in this country that the Hon Dr Peter Nygh AM died on 19th June 2002. The Notice of Motion to restore his name as a respondent is dismissed.
On another point, it has been brought to my attention that the title of the fourth respondent has been changed to the Department of Families, Housing, Community Services and Indigenous Affairs. I will make an order reflecting that change.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 September 2008
0
4