Lawrance v Refugee Review Tribunal & Ors (No.2)
[2008] FMCA 1499
•19 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v REFUGEE REVIEW TRIBUNAL & ORS (No.2) | [2008] FMCA 1499 |
| HUMAN RIGHTS – Disability discrimination – sex discrimination – victimisation – sexual harassment – jurisdiction – the Court has no jurisdiction to entertain proceedings under Human Rights and Equal Opportunity Commission Act 1986 (Cth) s.46PO unless the criteria of s.46PO(1) and s.46PO(3) are satisfied. PRACTICE & PROCEDURE – Summary dismissal – no reasonable prospect of successfully prosecuting the claim – frivolous or vexatious – abuse of process – jurisdiction – whether the Court has jurisdiction under Human Rights and Equal Opportunity Commission Act 1986 (Cth) – where claims by the applicant against certain respondents have been dismissed in earlier proceedings – whether evidence ambivalent – where allegations inherently incredible – application dismissed as vexatious and an abuse of process against various respondents – vexatious litigant – habitually and persistently and without reasonable grounds institutes vexatious proceedings. PRACTICE & PROCEDURE – Service of an application – service by hand required for an application starting a proceeding. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO Federal Magistrates Act 1999 (Cth), s.17A Disability Services Act 1986 (Cth) Disability Discrimination Act 1992 (Cth), ss.4, 5, 15, 21, 29, 42, 43, 122 Sex Discrimination Act 1984 (Cth), ss.5, 6, 14, 20, 26, 28A, 28B, 28L, 94, 105, 106 Guardianship Act 1987 (NSW), s.6C Mental Health Act 1990 (NSW) Mental Health Act 2007 (NSW) Federal Court Act 1976 (Cth), s.31A Federal Magistrates Court Rules 2001, rr.6.06, 13.10, 13.11 |
| Lawrance v Refugee Review Tribunal & Ors (No 1) [2008] FMCA 1306 Chung v University of Sydney [2001] FMCA 94 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157 Lawrance v The Commonwealth of Australia & Ors [2006] FMCA 1792 Gauci v Kennedy & Anor [2005] FMCA 1505 L v Commonwealth of Australia & Ors [2008] FMCA 658 Lawrance v Macarthur Legal Centre & Ors [2008] FMCA 1420 Lawrance v Commonwealth of Australia & Ors and Lawrance v AAT & Ors [2008] FMCA 1340 Lawrance v Commonwealth of Australia & Anor (No 5) [2007] FMCA 1934 Lawrance v Watson & Ors [2008] FMCA 984 Tadawan v State of South Australia [2001] FMCA 25 Lawrance v The Commonwealth of Australia & Ors (No 4) [2007] FMCA 1408 Lawrance v Commonwealth of Australia & Ors [2007] FMCA 1478 Horvath v Commonwealth of Australia [1999] FCA 504 Walton v Gardiner (1993) 112 ALR 289 |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | COMMONWEATH 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 CRISTOFFANINI |
| Thirteenth Respondent | JOHN GODFREY |
| Fourteenth Respondent | MICHAEL PASFIELD |
| Fifteenth Respondent | LYN ROGERS |
| File Number: | SYG 882 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 16 and 17 September, 15 October 2008 |
| Date of Last Submission: | 15 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel 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 application is summarily dismissed as against the first respondent under the provisions of rule 13.10(a).
The applicant is to pay the first respondent’s costs.
The application is summarily dismissed as against the second, third and fourth respondents as a vexatious proceeding under rule 13.10(b)
IN THE ALTERNATIVE the application is summarily dismissed as against the second, third and fourth respondents as an abuse of the process of the Court under rule 13.10(c).
The applicant is to pay the second, third and fourth respondents’ costs.
The application is not competent as against the fifth respondent as the Court has no jurisdiction and it is therefore summarily dismissed under rule 13.10(a).
The applicant is to pay the fifth respondent’s costs.
The application is summarily dismissed as against the sixth and seventh respondents as a vexatious proceeding under rule 13.10(b).
IN THE ALTERNATIVE the application is summarily dismissed as against the sixth and seventh respondents as an abuse of the process of the Court under rule 13.10(c).
The applicant is to pay the sixth and seventh respondents’ costs.
The application is summarily dismissed as against the eighth respondent as an abuse of the process of the Court under rule 13.10(c).
IN THE ALTERNATIVE the application is summarily dismissed as against the eighth respondent under rule 13.10(a).
The applicant is to pay the eighth respondent’s costs.
The application is summarily dismissed as against the tenth and eleventh respondents under rule 13.10(a).
The applicant is to pay the tenth and eleventh respondents’ costs.
The application is summarily dismissed as against the fourteenth respondent as an abuse of the process of the Court under rule 13.10(c).
The applicant is to pay the fourteenth respondent’s costs.
Under rule 13.11(3) (a) any proceeding instituted by the applicant against the Commonwealth of Australia, CRS Australia, the Department of Families, Housing, Community Services and Indigenous Affairs, the State of New South Wales or the New South Wales Guardianship Tribunal may not be continued without the leave of the Court.
Under rule 13.11(3)(b) the applicant may not institute any proceedings against the Commonwealth of Australia, CRS Australia, the Department of Families, Housing, Community Services and Indigenous Affairs, the State of New South Wales or the New South Wales Guardianship Tribunal without the leave of the Court.
| 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
| CSR 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 CRISTOFFANINI |
Twelfth Respondent
| JOHN GODFREY |
Thirteenth Respondent
| MICHAEL PASFIELD |
Fourteenth Respondent
| LYN ROGERS |
Fifteenth Respondent
REASONS FOR JUDGMENT
Application
This is an application by eleven of the fifteen respondents for summary dismissal of the applicant’s claim against them under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986, in which she asserts that she has been discriminated against by their conduct in a number of ways. The first, second, third, fourth, fifth, sixth, seventh, eighth, tenth, eleventh and fourteenth respondents ask the Court to give judgment in their favour against the applicant under the provisions of s 17A(2) of the Federal Magistrates Act 1999 (Cth) and Rule 13.10 of the Federal Magistrates Court Rules 2001 on the bases that in each case:
1)the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding applying to the particular respondent;
2)that the claim for relief is frivolous or vexatious; and
3)that the claim for relief is an abuse of the process of the Court.
In the case of the fifth respondent, the Department of Education, Employment and Workplace Relations, that the proceeding be dismissed on the basis that the Court does not have jurisdiction under
s 46PO of the Human Rights and Equal Opportunity Commission Act in relation to that respondent.
In the case of the sixth and seventh respondents, the Guardianship Tribunal (NSW) and the State of New South Wales, it is also claimed that the applicant’s claim as presently formulated against them fails to disclose any specific acts or conduct for which either respondent is said to be liable and does not enable the respondents to know the claims against them or properly respond to the claims or prepare their defences to the claims and are embarrassing.
The third and fourth respondents, being CRS Australia and the Department of Families, Community Services and Indigenous Affairs, also seek orders under rule 13.11(3) that:
1)any proceeding instituted by the applicant in relation to those respondents may not be continued without leave of the Court; and
2)that the applicant may not institute any proceeding against those respondents without leave of the Court.
As to the ninth, twelfth, thirteenth and fifteenth respondents, they have either not been properly served or they have not been served at all. In her affidavit filed on 17th June 2008, the applicant sets out the results of her efforts to effect service on those respondents.
The applicant deposes that she posted a copy of the service documents to the ninth respondent, Anne Brimson, and the thirteenth respondent, John Godfrey, by ordinary post. Rule 6.06 makes it clear that service by hand is required for an application starting a proceeding. Consequently, I find that service by post is not good service on either respondent.
The applicant also deposes that she has been unable to effect service on either the twelfth respondent, Paula Christoflanini, or the fifteenth respondent, Lyn Rogers.
Those four respondents will play no part in these proceedings, which are interlocutory proceedings and it is unnecessary to consider any part of the applicant’s claims against those four respondents at this stage.
The first, second, third, fourth, fifth, eighth, tenth, eleventh and fourteenth respondents all have the same representation. For convenience, where necessary, they will be referred to as “The Commonwealth respondents”.
The sixth and seventh respondents, the State of New South Wales and the Guardianship Tribunal, have the same representation. For convenience, where necessary, they will be referred to as “The State respondents”.
In her application, filed on 11th April 2008, the applicant claims that she has been discriminated against by the conduct of the respondents in providing her with services and programs under Part III of the Disability Services Act 1986 (Cth), contacting friends, relatives and employers of the applicant, entering the applicant’s places of dwelling, administering involuntary medical treatment to the applicant, interfering with the applicant’s belongings, placing the applicant under surveillance, disclosing information about the applicant to others, and in granting guardianship orders in relation to the applicant.
The Claims Against the Refugee Review Tribunal
The applicant claims that the Refugee Review Tribunal has committed unlawful discrimination against her under sections 4, 5, 15, 29, 42, 43 and 122 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 26, 28A, 28B, 28L, 94, 105 and 106 of the Sex Discrimination Act 1984. She seeks a written apology and damages, including exemplary damages.
The applicant’s claims are set out in four affidavits, filed on 11th April 2008, 5th May 2008, 10th July 2008 and 1st August 2008.
The applicant claims that during her employment she was imputed with a psychiatric impairment which she did not in fact have and has not been diagnosed with such impairment. She deposes in her affidavit filed on 11th April that she was employed by the Refugee Review Tribunal from 31st August 1998 to 5th January 2001. She deposes that at no stage during her employment did she think, know, realise or suspect that she was receiving Part III Disability Services Act services or programs, nor was she aware that she was being imputed with any sort of psychiatric impairment or mental illness.
The applicant deposes that:
During my employment I did not know that it was possible to be administered involuntary medical treatment. On 4 April 2003, or thereabouts (in the first week of April 2003) I began to be administered involuntary medical treatment.[1]
[1] Applicant’s affidavit filed 11.4.2008 at paragraph [8]
She goes on to state:
In 2004 I realised that I had probably been administered this aspect of the involuntary treatment prior to 2003. I could recall a handful of occasions in the past, during my SSAT[2] and RRT[3] employment, where I had experienced problems that I could attribute in 2004 to this involuntary treatment.[4]
[2] Social Security Appeals Tribunal
[3] Refugee Review Tribunal
[4] Applicant’s affidavit filed 11.4.2008 at [10]
The applicant deposes further:
As far as I know, such services commenced in 1994. I make this statement because of the contents of a statement written by Bev Smith, which I received in February 2006 (I deal with this statement further on). Bev Smith’s statement and the circumstances make it manifest basically that I was being imputed with a psychiatric impairment at least from 1994 onwards, and that this would rationally, logically, have involved the provision to me of Part III DSA services.[5]
[5] Applicant’s affidavit at [11]
The applicant goes on to depose:
This absence of a rational explanation by the respondents is one of the reasons I state that it is manifest that Part III DSA services have been provided to me, probably since 1994, or at least since 1994 onwards. This is the only logical conclusion to draw, particularly when all of the other circumstances and evidence is (sic) taken into account.[6]
[6] Applicant’s affidavit 11.4.2008 at [13]
The applicant goes on to describe a conversation with her sister, Fiona Stiff, in late 2001 where she asked her sister why her workplaces at Macarthur Legal Centre and the RRT were becoming “really weird”.[7] Her sister replied that she did not know.
[7] Applicant’s affidavit at [26]
The applicant further deposed that she was not aware during her employment with the Refugee Review Tribunal that it was possible to be administered involuntary medical treatment.[8]
[8] Applicant’s affidavit at [34]
The applicant complained of stains appearing on her clothes whilst she was employed by the RRT:
I noticed in 2000 large, faint yellow stains one day on a freshly laundered white shirt that I had pulled out to iron. …I never thought or sensed that my home unit was being entered during my RRT employment. It only became a possibility in the context of my wondering if I was under some sort of surveillance.[9]
[9] Applicant’s affidavit at [35]
The applicant alleges that:
1)during her RRT employment she was being provided with Part III DSA services without ever having been informed of this occurring;[10]
2)the terms and conditions of her RRT employment included the existence of a guardian or a person acting on her behalf, as well as the provision to her of Part III DSA services;[11]
3)she was not aware of those matters during her employment with the RRT;[12]
4)she still does not know enough about what was happening during her RRT employment to further detail or particularise allegations;
5)that Jill Toohey[13] was involved in some form of surveillance of her on RRT premises;[14]
6)it never occurred to the applicant until 2007 that Jill Toohey “might have actually have been using surveillance technology” to observe her at the workstation at the RRT;[15]
7)“At no stage have I ever thought that Jill Toohey, or any other RRT employee, was observing me in my own home, and indeed I have not thought that any RRT employee was involved in any observation of me whilst I was on RRT premises other than that 2007 allegation in relation to Jill Toohey;[16]
8)The applicant conceded she did not know if Jill Toohey was observing her on RRT premises;[17] and
9)Where she did develop concerns during her RRT employment they were always rational.[18]
[10] Applicant’s affidavit at [67]
[11] Applicant’s affidavit at [69]
[12] Applicant’s affidavit at [70]
[13] the tenth respondent
[14] Applicant’s affidavit at [72]
[15] Applicant’s affidavit at [73]
[16] Applicant’s affidavit at [74]
[17] Applicant’s affidavit at [76]
[18] Applicant’s affidavit at [78]
The applicant provides these examples of less favourable treatment she alleges occurred during her employment with the Refugee Review Tribunal:
·The provision of Part III DSA services;
·A person, be it a guardian or not, who consents to those services;
·Surveillance;
·Involuntary medical treatment;
·Disclosure of information;
·Miscommunication by other employees;
·Refusing to reimburse her;
·Yelling and screaming by two people, one of whom was the (unserved) respondent Paula Cristoffanini;
·Odd comments made by people, including Jill Toohey and Ms Cristoffanini;
·Odd gossip;
·A policy of preventing her or making it difficult for her to have a romantic relationship with former boyfriend;
·Marital status discrimination;
·Punitive responses to her not behaving as though she were insane or paranoid or otherwise psychiatrically impaired;
·Contacting one Dr Walska;
·An abnormal office environment;
·Odd conduct;
·“pen conduct” by the then Principal Member of the Refugee Review Tribunal, the late Dr Nygh[19];
·unwelcome conduct by the late Dr Nygh; and
·odd things she observed in 2000, including her shirts, t shirts and other tops “being routinely stolen and replaced with replicas that have almost transparent fabric and cannot be worn without a camisole”.[20]
[19] formerly a respondent but removed by order of 30 May 2008; see also Lawrance v Refugee Review Tribunal & Ors (No 1) [2008] FMCA 1306
[20] Applicant’s affidavit at [80]
The applicant’s affidavit filed on 5th May 2008 annexes copies of various documents, including a memorandum from Jill Toohey, then the Registrar of the Refugee Review Tribunal, relating to the applicant’s complaint that she was not reimbursed the sum of $1000.00 for her attendance at the College of Law.
In her affidavit filed on 10th July 2008, the applicant reiterates her allegation that the terms and conditions of her employment at the Refugee Review Tribunal imputed to her a psychiatric impairment by the provision to her of Part III Disability Services Act services and programs and by the existence of a person acting on her behalf ‘probably through a guardianship order under the Guardianship Act (NSW).[21]
[21] Applicant’s affidavit filed 10.7.2008 at [1]
The applicant reiterates her claims that she had not been informed of these circumstances and her claims that she does not have any psychiatric impairment. She also repeats her claim that from 1994 onwards she was given involuntary medical treatment without her knowledge.
The applicant deposes:
I allege that marital status discrimination and sexual harassment has occurred in employment, including the RRT employment, for reasons associated with the provision to me of DSA services.[22]
[22] Applicant’s affidavit at [18]
The applicant further claims that Anne Brimson, the ninth respondent, suggested to her whilst she was working at Centrelink that she should apply for a job advertised at the Refugee Review Tribunal. She goes on to claim:
I allege that Anne Brimson was involved in my being placed on terms and conditions of employment at the RRT which imputed to me a psychiatric impairment, involved the provision to me of DSA services and the existence of guardianship orders, or of a personal representative of some description.[23]
[23] Applicant’s affidavit at [21]
The applicant set out at some length that she had no knowledge of those alleged terms and conditions whilst she worked at the RRT, nor did she consent to them. She would not have applied for employment at the RRT had she known of those terms and conditions of employment.
The applicant accused the late Dr Nygh and another man of “unwelcome conduct” towards her, which she explains as:
…because, without my knowledge, they were participating in the provision to me of DSA services.[24]
[24] Applicant’s affidavit 10.7.2008 at [72]
The applicant deposed that she was employed by the Refugee Review Tribunal from 31st August 1998 until 5th January 2001 as executive assistant to the late Dr Nygh. She states:
I did not know or suspect that I was being provided with DSA services. In neither 1998 nor 1999 was I informed that I was receiving DSA services, nor that someone was consenting to the provision to me of DSA services.[25]
[25] Applicant’s affidavit at [114]
The applicant described the conduct of the Registrar of the Refugee Review Tribunal, Jill Toohey, as “odd”[26]. She now considers that words used by Jill Toohey targeted her, because she was receiving DSA services.[27] The applicant then goes on to speculate that she may have been administered involuntary treatment whilst at the Refugee Review Tribunal in 1998[28]. The applicant described her interest in cooking and, with the benefit of hindsight, attributes disparaging comments made by Jill Toohey at the RRT about Jill Toohey’s sister making jam as really a derisive comment about her.[29]
[26] Applicant’s affidavit at [118]-[122]
[27] Applicant’s affidavit at [123]-[125], [127]-[129]
[28] Applicant’s affidavit at [131], [133], [135]- [137]
[29] Applicant’s affidavit at [139]-[141]
The applicant later in her affidavit refers to a comment she heard Jill Toohey make to another employee of the RRT which she now believes to be about her, as she became convinced in 2003 that she was under surveillance.[30]
[30] Applicant’s affidavit at [152]-[153]
The applicant further deposes that she had a conversation with John Godfrey, the thirteenth respondent (unserved) in 1999, when he was the Deputy Principal Member of the Refugee Review Tribunal. She raised with him her concerns that there might be surveillance devices in her home. He laughed and the applicant deposed:
I was left with the impression that he did not know what I was referring to[31].
[31] Applicant’s affidavit at [188].
The applicant goes on to speculate about the possibility of surveillance devices in her home during the period of her employment at the Refugee Review Tribunal[32].
[32] Applicant’s affidavit at [189]-[191]
In her affidavit filed on 1st August 2008, the applicant refers to people at the Refugee Review Tribunal “not communicating normally” with her, and she nominates Dr Nygh, Paula Cristoffanini, Jill Toohey and her own sister, Fiona Stiff.[33]
[33] Applicant’s affidavit filed on 1.8.2008 at [2]-[9], [11]-[18]
The applicant set out in her affidavit that she had no romantic interest in Dr Nygh and complained of a change in his behaviour in 2000, when she alleged he would stand too close to her and invade her personal space.[34]
[34] Applicant’s affidavit at [39]-[40], [42],[45], [65]
The applicant set out in her affidavit her concerns about going on a circuit to Woomera with the Refugee Review Tribunal and the difficulty about accommodation arrangements at the motel where they were to stay. She deposed that it was offensive to her to contemplate sharing a bathroom with Dr Nygh or any other person of the opposite sex.[35]
[35] Applicant’s affidavit at [70]-[77]
The applicant further discusses her concerns about her workplace at the RRT.[36] She attributes her difficulties with Paula Cristoffanini playing music, or receiving files for a circuit which she was not attending, or noticing that the handwriting on certain documents resembled that of a person she used to know, to the fact she was in fact receiving DSA services whilst employed at the Refugee Review Tribunal. The applicant complains that some of the files on which she worked were “fake files”:
…files made up for the purposes of my being provided with DSA services.[37]
[36] Applicant’s affidavit [79]-[95]
[37] Applicant’s affidavit at [97]; see also at [100]-[101]
The applicant complains of being deliberately placed in a very stressful situation in 2000 as a punitive response to her refusing to go on circuit with the Tribunal to Darwin and Port Hedland. The punitive responses included:
1)discouraging her then boyfriend from remaining in contact with her; and
2)“an organised, pre-planned strategy to completely ignore my birthday”[38].
[38] Applicant’s affidavit at [102]-[103]
The applicant complains of a deliberate strategy to control what occurred in her life, resulting in her deciding to leave the RRT. This included allegations of Dr Nygh invading her personal space[39]. The applicant complained about “dark” comments being made, feeling ‘danger’ when a Tribunal member walked past her desk and her disappointment at not being fully reimbursed for her fees while attending the College of Law. The applicant annexes to her affidavit copies of various items of correspondence to the Human Rights and Equal Opportunity Commission concerning her complaint about the Refugee Review Tribunal and Dr Nygh.
[39] applicant’s affidavit at [104]-[112]
The Applicant’s Submissions
In her written submissions filed on 5th May 2008, the applicant puts to the court that her case is that she does not have a psychiatric impairment or a mental illness. She does not need a guardian, nor is she in need of supervision. This is central to her case against all the respondents. She further submits that it is logical to conclude that guardianship orders have been made by the Guardianship Tribunal, particularly in light of the advice she received from a solicitor at the Redfern Legal Centre on 28th October 2003 that she should make inquiries of the Guardianship Tribunal.
The applicant submits that, although the Human Rights and Equal Opportunity Commission has decided in its Notice of Termination that she has not provided probative evidence of her being imputed with a disability by the respondents, the Court is not bound by the decision of the Human Rights and Equal Opportunity Commission. The applicant relies on the decision of Driver FM in Chung v University of Sydney[40], where his Honour said at [18]:
…this Court stands in a different position to the Commission and cannot simply rely upon an assessment of a complaint made by the Commission. This court must look at the matter afresh and, if anything, must be more rigorous in doing so, so as to ensure that justice is done to both parties.
[40] [2001] FMCA 94
The applicant contends that the terms and conditions of her employment with the Refugee Review Tribunal included that she be provided with Part III DSA services and that she have a guardian or person acting on her behalf. She further submits that she is not the subject of an admissible medico-legal report diagnosing a psychiatric impairment or a mental illness. She is not and has not been the subject of any orders under the Mental Health Act 1990 (NSW) or the Mental Health Act 2007 (NSW).
The applicant reiterates her claim that she is being administered involuntary medical treatment and is being provided with disability services. Her places of dwelling are under surveillance and are routinely and without her consent being entered. Information about her is being disclosed to the community.
The applicant submits that the respondents to her application do not have reasonable prospects of successfully defending her application. She is being imputed with a disability by all of the respondents.
The applicant submits to the Court that an application for summary dismissal should only succeed in the clearest of cases and the Court should proceed exceptionally cautiously (Dey v Victorian Railways Commissioners[41] at 91; General Steel Industries Inc v Commissioner for Railways (NSW)[42]). Further, the applicant referred the Court to the decision of McInnis FM in Cate v International Flavours and Fragrances (Aust) Pty Ltd[43] where his Honour stated at [74]:
It is also relevant at the outset to note that human rights proceedings necessarily involve what might be described as significant claims where it is in the public interest for those claims to be the subject of a hearing so that the allegations can be properly tested. It is in the interests of both parties for serious allegations of unlawful discrimination to be fully tested in an open court.
[41] (1949) 78 CLR 62
[42] (1964) 112 CLR 125
[43] [2007] FMCA 36
The applicant referred to the decision of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[44] where his Honour held at [47]:
If there is a reasonable danger that a claim or defence could be dismissed under s 31A[45], which could succeed at a trial, the provision would create a miscarriage of justice.
[44] (2006) 236 ALR 720; [2006] FCA 1352
[45] s 31A of the Federal Court Act 1976 is identical to s 17A of the Federal Magistrates Act 1999
The applicant also relied on the decision of Driver FM in Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors[46] where his Honour held at [30]:
[46] [2007] FMCA 157
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 17A cannot be enlivened.
The applicant also filed a written outline of submissions on 8th September 2008 in which she referred to her case against the Refuge Review Tribunal:
In alleging imputed disability discrimination I refer to the alleged provision of DSA services (something I did not know or suspect was occurring during my RRT employment i.e. at the time I was employed0; the pen conduct; the yelling and other conduct of Paula Cristffanini; the studybank and other conduct of Jill Toohey; the misconnection by Juhan Lubek; and other incidents.[47]
[47] Applicant’s submission filed 8.9.2008 at [9]
The applicant goes on in her submission to refer to conduct by various RRT employees as “odd, extraordinary, arbitrary and abnormal”.[48] She complains that:
No rational explanations have been provided for the conduct complained of, that do not involve an admission that DSA services have been provided. The respondents have merely obfuscated.[49]
[48] Applicant’s submission at [15]
[49] Applicant’s submission at [19]
The applicant contends that she has an arguable case and:
In the light of all the evidence, the only logical conclusion is that DSA services were provided. That is the only rational explanation.[50]
[50] Applicant’s submission at [22]
Conclusions
The applicant’s very submissions illustrate the fantastic and far-fetched nature of her claim. There is no ambivalence about the evidence. The applicant has applied a process of retrospective interpretation to incidents in her past, real or imagined, and concluded that the only logical explanation is that she was unknowingly under a program of disability services provided to her because she had been imputed with a psychiatric impairment by a person or persons unknown, for no apparent motive. This Kafka-esque scenario envisages her then employer, the Refugee Review Tribunal in employing her for the very purpose of putting her on such a program.
The applicant’s claims against the Refugee Review Tribunal are inherently incredible. Part of her claim relates to the behaviour of the late Dr Nygh, whom she alleges sexually harassed her. The evidence is insufficient to make out such a claim, and any claim against the Tribunal alleging some sort of vicarious liability for this alleged harassment is bound to fail.
The applicant complains that the Refugee Review Tribunal employed her on the basis that she would be, unknown to her and without her consent, imputed with a psychiatric disability or impairment which she does not have, and had arranged or facilitated for some unnamed person to consent to her receiving involuntary medical treatment, some of which, she alleges, occurred whilst she was at her workstation in 1998. The applicant alleges that services under the Disability Services Act were provided to her without her knowledge or consent, and that she was placed under surveillance and people entered her home and stole her clothes, only to replace them with others in the wrong size or made out of see-through material.
The applicant provides no evidence as to how this would have been done or what possible motive the Refugee Review Tribunal would have for acting in this sinister way.
Further, it is the applicant’s evidence that she was unaware of this imputation of a psychiatric impairment and the provision of Disability Services Act programs being supplied other during the course of her employment at the Refugee Review Tribunal from 1998 to 2001. It was only in 2003, she claimed, when she somehow ascertained that she was being provided these disability services and involuntary medical treatment, that she concluded that it was occurring the time she worked for the RRT. This process of retrospective interpretation led the applicant to conclude that she was in some way placed on this program.
The applicant’s claims, including the production of “fake files” for her to work on, and actions to punish her for not going on circuit by discouraging her boyfriend at the time from contacting her or ensuring that no-one acknowledged her birthday are fantastic allegations that are inherently unbelievable.
The applicant has no reasonable prospect of successfully prosecuting her claim against the first respondent, the Refugee Review Tribunal. The claim has no merit whatsoever and will be summarily dismissed with costs.
The Claims against the Commonwealth of Australia, CRS Australia, the Department of Families, Housing, Community Services and Indigenous Affairs and the Department of Education, Employment and Workplace Relations
The applicant claims that the Commonwealth of Australia and the other three bodies (the Commonwealth respondents) committed unlawful discrimination against her under sections 4, 5, 15, 21, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 20, 26, 28a, 28B, 28L and 94 of the Sex Discrimination Act 1984.
She seeks orders that the Commonwealth respondents are to cease the provision of all services, arrangements and programs in relation to her under the Disability Services Act 1986 including the provision of diagnostic and assessment services, disability services, surveillance, entering her places of dwelling, administering involuntary medical treatment to her, contacting her friends, relatives and others, and disclosing information about her to other people.
The applicant seeks a written apology. She also seeks damages, including aggravated damages and exemplary damages.
Department of Education, Employment and Workplace Relations
The Commonwealth respondents submit that the Court does not have jurisdiction to hear a claim against the Department of Education, Employment and Workplace Relations, the fifth respondent, because the Department was not a party to the terminated complaint to the Human Rights and Equal Opportunity Commission and no allegations were made against it.
It is clear, in my view, that each respondent to an application under s 46PO of the Human Rights and Equal Opportunity Commission Act must have been a respondent to the terminated complaint is a jurisdictional requirement of an application such as this (see Lawrance v The Commonwealth of Australia & Ors[51] at [12]; Gauci v Kennedy & Anor[52] at [53]).
[51] [2006] FMCA 1792
[52] [2005] FMCA 1505
The complaint against the fifth respondent was not among the complaints terminated by the notice of termination by the Human Rights and Equal Opportunity Commission dated 28th March 2008 which is the subject of these proceedings. It follows that the Court has no jurisdiction in relation to that complaint (see L v Commonwealth of Australia & Ors[53] at [33]-[34].
[53] [2008] FMCA 658
Consequently the application against the fifth respondent is not competent as the court has no jurisdiction and it will be dismissed for that reason.
The Commonwealth of Australia, CRS Australia and the Department of Families, Housing, Community Services and Indigenous Affairs
The claim against these remaining Commonwealth respondents is set out in the applicant’s affidavits filed on 11th April 2008[54], 10th July 2008[55] and 1st August 2008[56]. She alleges that she has been imputed with a psychiatric impairment or a mental illness, when in fact she has neither.
[54] at paragraphs [16], [29], [62], [67] and [77]
[55] at paragraphs [9], [15], [16], [17], [143] and [175]
[56] at paragraphs [63], [93], [102], [103] and annexure C
The Commonwealth respondents rely on the affidavit of Dale Jennifer Watson, solicitor, sworn and filed 22nd May 2008, in support of their claim that the applicant’s claims are materially identical to claims made against those respondents, or the Secretary, Department of Families and Community Services and Indigenous Affairs and the General Manager, CRS Australia. They have also referred the Court to earlier proceedings before me, Lawrance v Macarthur Legal Centre & Ors[57] and a recent decision by Turner FM involving the same applicant, Lawrance v Commonwealth of Australia & Ors and Lawrance v AAT & Ors[58].
[57] [2008] FMCA 1420
[58] [2008] FMCA 1340
In Lawrance v Commonwealth of Australia & Anor (No 5)[59], the Commonwealth of Australia was the first respondent, the Secretary, Department of Families, Community Services and Indigenous Affairs (to use the department’s earlier title) was the third respondent, and the General Manager, CRS Australia was the fourth respondent. The applicant’s amended application filed on 28th November 2006 shows that the applicant alleged the same discrimination and sought the same remedies as she does in her present application.
[59] [2007] FMCA 1934
Smith FM delivered judgment on 30th November 2007, dismissing the application against all respondents.
In L v Commonwealth of Australia & Ors[60], the Commonwealth of Australia was the first respondent, the Secretary, the Department of Families, Community Services and Indigenous Affairs was the third respondent and the General Manager, CRS Australia was the fourth respondent. The applicant’s application, filed on 6th November 2006, alleged the same discrimination and sought the same remedies as she does in this application.
[60] supra
On 22nd May 2008 Cameron FM delivered judgment, refusing an application to bring the proceedings out of time and dismissing the proceedings against all respondents.
In Lawrance v Watson & Ors[61] CRS Australia was the third respondent, the Department of Family & Community Services & Indigenous Affairs was the fourth respondent and the Commonwealth of Australia was the ninth respondent. The applicant’s application, filed on 26th February 2007, alleged the same discrimination and sought the same remedies as she does in her present application before this Court.
[61] [2008] FMCA 984
On 21st July 2008 Cameron FM delivered judgment, dismissing the application against all respondents under the provisions of all respondents under the provisions of r. 13.10.
In Lawrance v Macarthur Legal Centre & Ors[62] the Commonwealth of Australia was the fifth respondent, the Department of Families, Housing, Community Services and Indigenous Affairs was the sixth respondent and CRS Australia was the seventh respondent. In her application the applicant alleged the same discrimination and sought the same remedies as she does in her present application, which was filed on 11th April 2008.
[62] supra
On 15th October 2008 I delivered judgment, summarily dismissing the application as against those, and other respondents. The application against the Commonwealth of Australia, the Department of Families, Housing, Community Services and Indigenous Affairs and CRS Australia was summarily dismissed as a vexatious proceeding under rule 13.10(b). In the alternative, the application against the three Commonwealth respondents was summarily dismissed as an abuse of the process of the Court under rule 13.10(c).
The decision in Lawrance v Commonwealth of Australia & Ors and Lawrance v AAT & Ors[63] involved two separate claims by the applicant. The first application, file no SYG 2109 of 2006, was a claim by the applicant against seven respondents. The Commonwealth of Australia was the first respondent, the Department of Families, Community Services and Indigenous Affairs was the fourth respondent and CRS Australia was the sixth respondent.
[63] supra
In her amended application filed on 12th October 2006, the applicant claimed that she had been imputed with a disability, namely a psychiatric illness, and that she had been placed on disability support services. She also complained of sex and marital status discrimination and sexual harassment and victimisation. These claims are essentially the same as those in the present application before this Court.
On 26th September 2008 Turner FM delivered judgment, summarily dismissing the application under rule 13.10. His Honour also made orders under rule 13.11:
(a)That any proceeding instituted by the applicant in this Court may not be continued without leave of the Court; and
(b)The applicant may not institute a proceeding in this Court without prior leave of the Court.
The above order, Order 4(a), is of relevance to the matters before this Court, which I will discuss later.
The second application, file no SYG 655 of 2007, was a claim by the applicant against eighteen respondents. The Commonwealth of Australia was the second respondent, CRS Australia was the twelfth respondent, and the Department of Families, Community Services and Indigenous Affairs was the thirteenth respondent.
By her application filed on 26th February 2007, the applicant claimed that she had been subjected to unlawful discrimination and sexual harassment and sought orders against CRS Australia and the Department of Families, Community Services and Indigenous Affairs that “all programmes and services provided to the applicant under the [DSA] are to cease (Lawrance v AAT & Ors at [147] and [148).
The applications were dismissed as vexatious proceedings and an abuse of the process of the Court.
The claims made by the applicant against the Commonwealth respondents in Lawrance v AAT & Ors and the relief sought are essentially the same as the matters in issue in the present application.
The applicant has now made the same claims against all three Commonwealth respondents in six different proceedings, all of which have been dismissed. The applicant’s claims against those same three respondents in the present application clearly cannot succeed, as they have already been decided against her. The applicant has no reasonable prospect of successfully prosecuting her claims against the same three Commonwealth respondents and her application is open to summary dismissal under rule 13.10(a). The Commonwealth respondents submit that it is appropriate not only to dismiss the application insofar as it relates to them as vexatious, but also that it is appropriate to make orders restricting the applicant’s ability to bring further proceedings against those respondents without leave of the Court.
The application will be summarily dismissed as against the second, third and fourth respondents.
The claims against the State of New South Wales and the Guardianship Tribunal
In her application filed on 11th April 2008 the applicant claims that the sixth respondent, the State of New South Wales, has committed unlawful discrimination against her under sections 4, 5, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 26, 28L, 94, 105 and 106 of the Sex Discrimination Act 1984.
The applicant seeks orders that the State of New South Wales is to cease the provision of all disability services and diagnostic and assessment services to her, including:
· The provision of involuntary medical treatment
· Entering the applicant’s places of dwelling
· Placing the applicant under surveillance and observation
· Interfering with the applicant’s belongings; and
· Disclosing information about the applicant to others.
The applicant seeks a written apology. She also seeks damages, including exemplary damages and aggravated damages for the way litigation has been conducted.
The applicant claims that the Guardianship Tribunal has committed unlawful discrimination against her under sections 4, 5, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 26, 28L and 94 of the Sex Discrimination Act 1984.
The applicant seeks orders that the Guardianship Tribunal is to revoke all and any guardianship orders it has made in relation to her. She seeks a written apology. She also seeks damages, including exemplary damages and aggravated damages in respect of the way that the litigation has been conducted.
The applicant’s claims against the State respondents are set out in her affidavits filed on 11th April 2008[64], 5th May 2008[65] and 10th July 2008[66]. Very little mention is made of either the State of New South Wales or the Guardianship Tribunal.
[64] at paragraphs [1], [2] and [44]
[65] at paragraph [18] and annexure G
[66] at paragraphs [97], [110] and [144]
The applicant claims that she was being provided with disability services by the State of New South Wales, even though she is neither the subject of an order under the Mental Health Act nor of an admissible medico-legal opinion diagnosing her with a psychiatric impairment. She claims that she is being imputed with a psychiatric impairment.
Essentially, the applicant is making the same claims against the State respondents and seeking the same remedies as she has sought in previous proceedings. I have already dealt with those claims in Lawrance v Macarthur Legal Centre at [75]:
Clearly, the applicant’s claims against the State of New South Wales and the Guardianship Tribunal in the present matter cannot succeed. They have already been decided unfavourably to the applicant in earlier proceedings and consequently, the applicant has no reasonable prospect of successfully prosecuting her claim against either respondent, and the application is open to be summarily dismissed under rule 13.10.
The application will be summarily dismissed. I will consider later in these reasons whether the application is a vexatious proceeding or an abuse of process, or both.
The Claims against Bev Smith
In her application filed on 11th April 2008, the applicant claims that Bev Smith, the eighth respondent, has committed unlawful discrimination against her under sections 4, 5, 15, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 26, 28L and 94 of the Sex Discrimination Act 1984.
The applicant seeks a written apology and damages.
The applicant’s claims against Ms Smith are contained in her affidavits filed on 11th April 2008[67], 5th May 2008[68], 10th July 2008[69] and 1st August 2008[70].
[67] at paragraphs [11] and [12]
[68] at paragraph [2] and Annexure C
[69] at paragraphs [4], [61], [62], and [110]
[70] at paragraphs[61], [62], [69], [135]-[149], [151]-[157], [162] and Annexure C
The applicant made a statement to the Human Rights and Equal Opportunity Commission[71] alleging that Ms Smith incited unlawful discrimination against her, participated in a campaign of victimisation against her and incited unlawful discrimination by imputing to her psychiatric conditions which she has never had and with which she has never been diagnosed.
[71] Annexure C to the applicant’s affidavit of 5.5.2008
The applicant claimed that Ms Smith was a personal friend whom she met whilst working at the Department of Social Security in 1991. The applicant claimed that another female friend said to her over the telephone in 1999 “Bev Smith was no friend to you”. The applicant claimed that she immediately telephoned Ms Smith to inquire about the meaning of this comment. She claimed Ms Smith terminated the call:
…then she said to me ‘Have a great life’, and she hung up on me. This was the last time I had any contact with her.
The applicant stated that commenced reflecting about her relationship with Ms Smith, referring to her as a “parasite” and accused her of lying about matters. She accused Ms Smith talking about her to her friends and finished her statement by saying:
I have never been told why it was that ‘Bev was no friend’.
Ms Smith’s statement to the Human Rights and Equal Opportunity Commission forms Annexure C to the applicant’s affidavit filed on 1st August 2008. In her statement Ms Smith described how she and the applicant were close personal friends between 1992 and 1997. She described how the applicant was adversely affected by a relationship with a work colleague and:
Over a number of years Aroha appeared to gradually develop a paranoia regarding work colleagues and friends attempting to discredit her reputation due to their disapproval of this short-lived relationship.
Ms Smith went to describe how her concern for the applicant led her to recommend that the applicant should seek medical assistance due to the nature of her delusions. She stated that she rang the applicant to discuss meeting for lunch and the applicant spoke to her in a hostile manner:
She told me she could not meet me for lunch because she had new information from a trusted source that I was the person who had been responsible for spreading the rumours and destroying her work reputation. That unless I proved to her the contrary she never wished to see me again.
Ms Smith never initiated contact with the applicant again. She stated that she received a letter from the applicant in around July 2001 indirectly accusing her of spreading malicious gossip about her mental state. Ms Smith stated that she had had no further contact with the applicant since then,
The applicant claims that Ms Smith’s statement and the circumstances:
…make it manifest, basically, that I was being imputed with a psychiatric impairment at least from 1994 onwards, and that this would rationally, logically, have involved the provision to me of Part III DSA services.[72]
[72] Applicant’s affidavit 11.4.2008 at [11]
The applicant describes this statement as:
…the first objective evidence I have of this having occurred, and it is overwhelmingly strong, persuasive evidence of the existence of an imputation since around 1994.[73]
[73] Applicant’s affidavit 11.4.2008 at [12]
The evidence never gets any better than that. In her affidavit filed on 1st August 2008 the applicant makes statements such as:
· Bev Smith has never told me that she thought I had delusions, in 1994-1995. She did not tell me that she thought I was unwell.[74]
· No mention was ever made of medical treatment.[75]
· Bev Smith has never said to me that in her opinion I am paranoid or deluded and require medical treatment.[76]
· Bev Smith has never one told me that she has discussed her alleged concerns with Louise Perrottet, nor indeed with any other person.[77]
· I have never become distressed or agitated when talking to Bev Smith.[78]
· If Bev had ever been spreading rumours about me or harming my reputation, she managed to do so entirely without my ever knowing or suspecting that this was occurring…I had no idea she was involved in imputing to me a disability.[79]
· When I rang Bev in 1999 and asked her why I might be hearing from someone who has never even met her[80], that she ‘was no friend’ to me, Bev reacted defensively, angrily, unpleasantly, refused to talk to me or tell me why such a comment was being made, and then hung up on me. I was just stunned. This was the first time in my life that any conflict existed between Bev and I. she struck me as someone with a guilty conscience.[81]
· It would appear, and I allege, that Bev Smith is the source of lies that have found their way to psychiatrists, including Dr McMurdo.[82]
[74] at [135]
[75] at [136]
[76] at [137]
[77] at [138]
[78] at [141]
[79] at [148]
[80] emphasis added
[81] at [152]
[82] at [157]
The Applicant’s Submissions
In her written submission filed on 5th May 2008, the applicant claims that Bev Smith’s statement:
…is clearly and most obviously, objective evidence that Bev Smith, and CRS Australia (eg Janine Woods) are treating me as though I am insane.
43. The statement has been written in a manner that is naïve, and it is naïve because I am being imputed with a psychiatric disability, and treated as though I am insane. It is, however, not evidence that in fact any disability exists, nor that I am insane…
44. Inferences can be drawn from Bev Smith’s statement in support of my allegation that I was, and am being provided with Part III DSA services, both in employment and whilst unemployed.
The applicant refers to the decision of Raphael FM in Tadawan v State of South Australia[83] in support of the proposition that inferences can be drawn from objective evidence and circumstantial evidence where there is no direct proof to assist in establishing a prima facie case, or an arguable case, or reasonable prospects of success:
In the absence of direct proof an inference may be drawn from the circumstantial evidence.[84]
[83] [2001] FMCA 25
[84] Tadawan at [52]
The applicant submits that the statement is evidence that she is being imputed with a psychiatric impairment.
Conclusions
The statement of Bev Smith is not in any way evidence that the applicant is being imputed with a psychiatric impairment and is being provided with Part III disability services with out her knowledge, including being subjected to involuntary medical treatment.
The applicant’s affidavits do not provide a shred of evidence to show how or why the applicant is being treated in this way, or what involvement Ms Smith has or had in this program, or what possible motive she could have for doing so. The applicant’s affidavit evidence go more towards showing that the applicant’s claims are the product of a delusion than that Ms Smith is involved in a conspiracy of the type alleged by the applicant.
The applicant has no reasonable prospect of successfully prosecuting her claim against this respondent and I intend to dismiss the application insofar as it applies to Ms Smith.
The Claim against Jill Toohey
In her application filed on 11th April 2008, the applicant claims that Ms Toohey, the tenth respondent, has committed unlawful discrimination against her under sections 4, 5, 15, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 26, 28L and 94 of the Sex Discrimination Act 1984. The applicant seeks a written apology and damages.
The applicant’s claim against Ms Toohey is contained in her affidavits filed on 11th April 2008[85], 10th July 2008[86] and 1st August 2008[87]. The applicant claims that Ms Toohey was involved in imputing to her a psychiatric impairment and facilitating her receipt of involuntary medical treatment whilst she was employed at the Refugee Review Tribunal. Ms Toohey was the Registrar of the Refugee Review Tribunal.
[85] at paragraphs [72]-[76] and [80]
[86] at paragraphs [119]-[125], [127]-[129], [140]-[142], [149], and [152]-[154]
[87] at paragraphs [3], [12], [106], [119], [127]-[130] and Annexure A
In particular, the applicant’s complaints about Ms Toohey are:
· Jill Toohey was involved in some form of surveillance of her on RRT premises, using surveillance technology;
· The applicant was unaware that this was happening;
· The applicant is being provided with involuntary treatment;
· Jill Toohey “miscommunicated”
· Jill Toohey made “odd comments” in the applicant’s hearing;
· Jill Toohey went through a stage of saying words such as “beautiful”, “gorgeous” and “beautiful, beautiful, gorgeous” when handed work, rather than saying “thank you” or “OK”;
· Ms Toohey’s comments were, in hindsight, possibly aimed at the applicant because she was receiving DSA services, unknown to her;
· Jill Toohey mentioned that she knew a member of the Social Security Appeals Tribunal named Jenny D’Arcy;
· It did not occur to the applicant at the time that she had been imputed with a disability or that Jenny D’Arcy might have been involved in this imputation;
· Jill Toohey said in a conversation to a colleague at the RRT about another person whose name was not mentioned:
It’s not as if she expects to get married!
· The applicant did not at the time believe at the time, in 1999, that the comment was a reference to the fact that she was being unlawfully discriminated against by being wrongly imputed with a psychiatric impairment, but in 2008 she now believes that this was the case;
· Jill Toohey made a disparaging comment about Ms Toohey’s sister always making jam which the applicant now sees as part of a policy of treating her with derision;
· The applicant alleges that her sister, Paula Christoflanini, Jill Toohey and others have imputed to her a medical condition characterised by disordered thinking, but the applicant has no such condition;
· Jill Toohey made a comment to a male colleague in 1999:
Must be a really good fantasy
· The applicant did not think at the time the comment was made that she was being imputed with a psychiatric impairment or that someone might be observing her and disclosing information about her to others, or that she was being administered or subjected to involuntary medical treatment;
· Jill Toohey was one of a number of people who communicated abnormally with her, including the late Dr Nygh and her own sister;
· Jill Toohey asked the applicant to obtain a form of conference telephone which she referred to as “the bat phone” but when she asked the RRT case management staff for the bat phone they did not know what she meant;
· Jill Toohey was not present on occasions when Dr Nygh allegedly invaded the applicant’s personal space;
· Jill Toohey informed the applicant in mid 2000 that she would not be paid the full rate of fee reimbursement for attending the College of Law; and
· Jill Toohey is incorrect in claiming that there was conflict between the applicant and other staff members and lied about her involvement in the applicant’s complaint about a Melbourne RRT employee’s behaviour.
Ms Toohey’s statement to the Human Rights and Equal Opportunity Commission dated 25th May 2001 is annexed to the applicant’s affidavit filed on 1st August 2008.
The Applicant’s submissions
The applicant’s written submission filed on 5th May 2008 refers to a comment made by one Elizabeth Morley, a solicitor at the Redfern Legal Centre on 28th October 2003 that Jill Toohey and Sue McIllhatton, the eleventh respondent top the application, were friends of hers. The applicant notes that she complained about Ms Toohey and Ms McIllhatton in 2003 and states:
…I took great care to never again have any contact with Elizabeth Morley.[88]
[88] Submission filed 5.5.2008 at [9]
Conclusions
The applicant’s evidence is not in any way probative of her claims against Jill Toohey. It is inherently unbelievable and it beggars belief that Ms Toohey would have been using surveillance technology against the applicant at the Refugee Review Tribunal as part of a conspiracy to treat the applicant as if she were psychiatrically impaired and submit her to involuntary medical treatment whilst she was working.
The applicant’s retrospective interpretation of overheard remarks made by Ms Toohey are fantasies that cannot be taken at all seriously.
The applicant’s claims against Jill Toohey cannot succeed. The applicant has no reasonable prospect of successfully prosecuting her claim against this respondent.
The application will be summarily dismissed as against the tenth respondent under Rule 13.10 (a).
The Claims against Sue McIllhatton
The applicant claims in her application filed on 11th April 2008 that Sue McIllhatton, the eleventh respondent, committed unlawful discrimination against her under sections 4, 5, 15, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 26, 28l and 94 of the Sex Discrimination Act 1984. The applicant seeks a written apology and damages.
There is no evidence about Ms McIllhatton. The applicant has no reasonable prospect of successfully prosecuting her claim against this respondent.
The application will be summarily dismissed as against the tenth respondent under Rule 13.10(a).
The Claims against Michael Pasfield
The applicant claims that Dr Michael Pasfield committed unlawful discrimination against her under sections 4, 5, 15, 29, 42 and 43 of the Disability Discrimination Act 1992 and sections 5, 6, 14, 26, 28L and 94 of the Sex Discrimination Act 1984. She seeks a written apology and damages.
The applicant’s claims against Dr Pasfield are contained in her affidavits filed on 5th May 2008[89] and 10th July 2008[90]. The applicant contends that Dr Pasfield, a former colleague of hers at the Social Security Appeals Tribunal, has:
(a)incited unlawful discrimination and victimisation by imputing to her psychiatric conditions which she has never had and with which she has never been diagnosed;[91]and
(b)participated in her being unlawfully discriminated against in the terms and conditions of her employment by the provision to her of DSA services and the existence of guardianship orders or of “some sort of personal representative”.[92]
[89] at Annexure B
[90] at paragraphs [53]-[56], and [67]-[69]
[91] Applicant’s affidavit filed 5 May 2008 at Annexure B
[92] Applicant’s affidavit filed 10.7.2008 at [69]
The applicant’s claims against Dr Pasfield are essentially to those which she aired in previous proceedings which have now been dismissed (Lawrance v Macarthur Legal Centre & Ors[93]), including the annexure of:
(a)her letter to Dr Pasfield dated 28th August 2004;
(b)Dr Pasfield’s reply dated 13th September 2004; and
(c)her letter to Dr Pasfield dated 1st October 2004.
[93] supra
The applicant makes this extraordinary claim:
(67) Ever since 2003, I have on occasions heard, via the provision of disability services in my places of dwelling, the sound of laughter that resembles Michael Pasfield’s laughter. I do not know how disability service providers do this or achieve this effect, but its obviously occurring by such services being provided. I do not think that Michael Pasfield is present or is in reality laughing in my room. However, the sound is one I allege is deliberately one that resembles his laughter. I have not experienced any hallucination or delusion along those lines. I am stating what is occurring in the provision of disability services.[94]
[94] Applicant’s affidavit 10.7.2008 at [67]
This preposterous claim was made in the applicant’s earlier application:
Since around 2003, the sound of his laughter has been artificially transmitted into my environment by disability service providers.[95]
[95] Lawrance v Macarthur Legal Centre & Ors at [96]
The applicant’s submissions make no specific reference to her claims against Dr Pasfield and I have considered her submissions generally.
Conclusions
The applicant’s claim against Dr Pasfield has already been dismissed in previous proceedings before this Court. The applicant has no reasonable prospect of successfully prosecuting her claim against this respondent.
What is more, the applicant commenced these proceedings in which she joined Dr Pasfield as a respondent on 11th April 2008. At the time she did so, her previous proceedings in which she made the same claim against Dr Pasfield were already on foot, having been commenced in 2007. Consequently, this application against the respondent, duplicating a claim already made, is an abuse of the process of the Court.
The application will be dismissed as an abuse of the process of the Court under Rule 13.10(c).
Frivolous or Vexatious; abuse of process
The Commonwealth respondents and the State respondents seek orders that the application against them is vexatious and an abuse of the process of the Court and should be dismissed for that reason. They further seek orders under Rule 13.11 that:
(a)any proceedings instituted by the applicant against them, or a number of them, may not be continued without the leave of the Court.; and
(b)the applicant may not institute any proceedings against them, or a number of them, without the leave of the Court.
To some extent, these applications have been overtaken by events and orders have now been made in other proceedings.
In Lawrance v Macarthur Legal Centre, I delivered judgment on 15th October 2008, summarily dismissing the application against most of the respondents to that application. Several of the respondents in that matter are respondents in the present application. I made orders in the earlier proceedings that are relevant to some of the respondents in the present application.
The State of New South Wales and the Guardianship Tribunal (NSW) were the third and fourth respondents, respectively. I made these orders:
20)The application is summarily dismissed as against the third and fourth respondents as a vexatious proceeding under rule 13.10(b).
21)IN THE ALTERNATIVE the application is summarily dismissed as against the third and fourth respondents as an abuse of the process of the Court under rule 13.10(c).
22)The applicant is to pay the third and fourth respondents’ costs.
The Commonwealth of Australia, the Department of Families, Housing, Community Services and Indigenous Affairs and CRS Australia were the fifth, sixth and seventh respondents, respectively. I made these orders:
23)The application is summarily dismissed as against the fifth, sixth and seventh respondents as a vexatious proceeding under the provisions of rule 13.10(b).
24)IN THE ALTERNATIVE the application is summarily dismissed as against the fifth, sixth and seventh respondents as an abuse of the process of the Court under rule 13.10(c).
25)The applicant is to pay the fifth, sixth and seventh respondents’ costs.
Michael Pasfield was the ninth respondent in those proceedings. I made these orders:
26)The application is summarily dismissed as against the ninth respondent under the provision of rule 13.10(a).
27)The applicant is to pay the ninth respondent’s costs.
I then went on to make orders under rule 13.11 in respect of several of those respondents:
28)Any proceeding instituted by the applicant against the State of New South Wales, the Department of Families, Housing, Community Services and Indigenous Affairs or CRS Australia may not be continued without leave of the Court.
29)The applicant may not institute any proceeding against the State of New South Wales, the Department of Families, Housing, Community Services and Indigenous Affairs or CRS Australia without the leave of the Court.
The decision in Lawrance v Commonwealth of Australia & Ors and Lawrance v AAT & Ors was handed down on 26th September 2008. In that decision, Turner FM made an order under rule 13.11 which is relevant to the present application:
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 Magistrate Court Rules 2001.
Whilst the above order refers to “any proceeding” it cites Rule 13.11(3) (a), which might suggest that his Honour intended that it was only intended to some of the respondents in the matters before him, it is clear from the decision that his Honour intended the order to apply to any proceeding currently before the Federal Magistrates Court. His Honour stated at [368] and [369]:
368. Acting on its own motion and on the applications for summary dismissal filed by the respondents, the Court finds that the applicant has instituted a vexatious proceeding, and is satisfied that the applicant has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court and in other Australian Courts.
369. The Court orders that:
a) That all proceedings instituted by the applicant may not be continued without leave of the Court…
It is perfectly clear that Turner FM intended to make orders restraining the applicant from continuing any current proceeding in this Court. This would apply to the present application, or at least that part of the application that will remain after the summary dismissal orders have been made.
Similarly, His Honour’s order will apply to the applicant’s claim against Colin Thomson and Marilyn Moore, who are the only respondents remaining in the proceedings Lawrence v Macarthur Legal Centre & Ors SYG 3139 of 2007. That application is listed for mention and directions on 19th November 2008, and it will be appropriate for the applicant to be given the opportunity to make submissions as to whether or not she should be granted leave to continue those proceedings.
As I stated at [86] above, the applicant has now made the same claims against all three Commonwealth respondents in six different proceedings, all of which have been dismissed. All of those earlier proceedings were commenced in 2007, whilst this application was not commenced until 11th April 2008.
The applicant has also commenced proceedings against the State of New South Wales and the NSW Guardianship Tribunal in earlier proceedings.
As I noted in Lawrance v Macarthur Legal Centre at [124]:
[124] The State of New South Wales, the Commonwealth of Australia, the Department of Families, Housing, Community Services and Indigenous Affairs (however described) and CRS Australia (however described) have been respondents to each application. The Guardianship Tribunal has been a respondent to two of these applications, and the applicant has sought unsuccessfully to join The Guardianship Tribunal as a respondent on three occasions, in Lawrance v The Commonwealth of Australia & Ors (No 4)[96] (per Smith FM at [29]), L v Commonwealth of Australia & Ors[97] and in Lawrance v Commonwealth of Australia & Ors[98]…
[96] [2007] FMCA 1408
[97] [2008] FMCA 658
[98] [2007] FMCA 1478
The State of New South Wales has now been a respondent to essentially the same claim in six different applications before this Court. The Guardianship Tribunal has now been a respondent to essentially the same claim in three different applications and the applicant has sought unsuccessfully to join the Guardianship Tribunal in three other proceedings.
Bev Smith has been a respondent to two applications in this Court, Lawrance v AAT & Ors[99], where she was the eighteenth respondent, and this application, where she is the eighth respondent. The claim against her was essentially the same in each case.
[99] [2008] FMCA 1340
Michael Pasfield has been a respondent to two applications in this Court, Lawrance v Macarthur Legal Centre & Ors[100], where he was the ninth respondent, and this application, where he is the fourteenth respondent. The claim against him was essentially the same in each case.
[100] [2008] FMCA 1420
Proceedings can be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable, or manifestly groundless, as to be utterly hopeless. They must also have been habitually and persistently instituted by the litigant. The persistent institution of proceedings for the purpose of re-agitating the questions already determined points to a situation in which a party has frequently and without reasonable ground instituted vexatious legal proceedings in the Court (Horvath v Commonwealth Bank of Australia[101] PER Weinberg J at [98],[102]).
[101] [1999] FCA 504
Proceedings which unnecessarily duplicate proceedings already or determined have held to be incapable of serving a legitimate purpose (see Walton v Gardiner[102], per Brennan J at 312):
They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that it to say, a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy.
[102] (1993) 112 ALR 289
In Lawrance v Watson & Ors[103] at [80] and [81] Cameron FM held that the duplication of allegations and factual assertions against various respondents (including CRS Australia, Department of Families, Community Services and Indigenous Affairs, the State of New South Wales, New South Wales Guardianship Tribunal and the Commonwealth of Australia) meant that those proceedings were vexatious as against those respondents. The multiplicity of proceedings against those parties was held to be an abuse of process.
[103] supra
In the present application, I am satisfied that the applicant has habitually and persistently and without reasonable grounds instituted vexatious proceedings in this Court against the second, third, fourth, sixth and seventh respondents. The proceeding is a vexatious proceeding against the second, third, fourth, sixth and seventh respondents.
The application is an abuse of the process of the Court as against the second, third, fourth, sixth, seventh, eighth and fourteenth respondents. The eighth respondent is Bev Smith and the fourteenth respondent is Michael Pasfield.
I have previously made orders under rule 13.11(3) against the applicant in respect of the third, fourth and sixth respondents (Lawrance v Macarthur Legal Centre). It should not be necessary to do so again, but for more abundant caution I propose to make orders restraining the applicant from instituting or continuing any proceedings against those respondents without leave of the Court.
I now consider it appropriate to make orders under rule 13.11 restraining the applicant from instituting or continuing proceedings against the second respondent, the Commonwealth of Australia, and the seventh respondent, the New South Wales Guardianship Tribunal.
The application will be dismissed as a vexatious proceeding as against the second, third, fourth, sixth and seventh respondents. In the alternative, it will be dismissed as an abuse of process as against those respondents.
The application will be dismissed as an abuse of process as against the eighth respondent, Bev Smith, and the fourteenth respondent, Michael Pasfield.
It follows that the Court will make an order for costs against the applicant in respect of those respondents in whose favour the Court has made orders for summary dismissal of the applicant’s claims. The quantum of costs and the basis upon which such an order should be made will be a matter for submissions by the parties.
Residual proceedings
There are four respondents remaining:
(a)Anne Brimson, the ninth respondent;
(b)Paula Christoffanini, the twelfth respondent;
(c)John Godfrey, the thirteenth respondent; and
(d)Lyn Rogers, the fifteenth respondent.
I have found at [5]-[7] above that these respondents have not been personally served. In light of the orders made by Turner FM in Lawrance v Commonwealth of Australia & Ors and Lawrance v AAT & Ors, it would appear that the applicant is precluded from continuing the proceeding against those respondents unless she obtains the leave of the Court. It is appropriate that she should be given the opportunity to make submissions to the Court as to:
(a)whether Order 4 (a) made in that proceeding applies to the present application against those respondents; and
(b)if so, whether she should be granted leave to continue her present application against all or any of those respondents.
It follows that the application will be summarily dismissed as against the first, second, third, fourth, fifth, sixth, seventh, eighth, tenth, eleventh and fourteenth respondents.
The applicant is to pay the first, second, third, fourth, fifth, sixth, seventh, eighth, tenth, eleventh and fourteenth respondents’ costs.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 18 November 2008
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