Lawrance v The Commonwealth of Australia and Ors (No.3)
[2007] FMCA 806
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v THE COMMONWEALTH OF AUSTRALIA & ANOR (No.3) | [2007] FMCA 806 |
| HUMAN RIGHTS – Practice – order for confined discovery. |
Disability Services Act 1986 (Cth)
Federal Magistrates Act 1999 (Cth), ss.45, 45(2)(a)
Freedom of Information Act1982 (Cth)
Freedom of Information Act 1989 (NSW)
Lawrance v Centrelink (2005) AATA 14
Lawrance v Centrelink [2005] FCA 1318
Lawrance v Chief Executive Officer, CRS Australia [2006] FCA 341
Lawrance v CRS Australia (2005) AATA 466
Lawrance v The Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792
NAQR & Ors v Minister for Immigration [2002] FMCA 271
| Applicant: | AROHA LAWRANCE |
| First Respondent: | THE COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | THE STATE OF NEW SOUTH WALES |
| Third Respondent: | THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
| Fourth Respondent: | THE GENERAL MANAGER, CRS AUSTRALIA |
| Fifth Respondent: | THE AUSTRALIAN GOVERNMENT SOLICITOR |
| Sixth Respondent: | ANDRAS MARKUS |
| Seventh Respondent: | THE REGISTRAR, FEDERAL COURT OF AUSTRALIA |
| Eighth Respondent: | KIM LACKENBY |
| Ninth Respondent: | MICHAEL WALL |
| Tenth Respondent: | MICHAEL PACKER |
| Eleventh Respondent: | JOHN PETKOVSHEK |
| Twelfth Respondent: | JULIET CURTIN |
| Thirteenth Respondent: | GERARD ENGLISH |
| File Number: | SYG 2015 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 18 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First and Third to Respondents: | Ms D Watson |
| Solicitors for the First and Third to Respondents: | Australian Government Solicitors |
| Counsel for the second Respondent: | Mr P Moorhouse |
| Solicitors for the second Respondent: | Crown Solicitors |
ORDERS
Declare that it is appropriate to allow limited discovery, and order that the 5th to 13th respondents shall give discovery under Part 14.2 of the Rules in relation to:
(i)Documents disclosing the existence of a programme or policy under which staff of the Federal Court were given information about the applicant and suggesting or advising or permitting them to place their pens in their mouths or to their mouths, and the information provided to them.
(ii)Documents disclosing the existence of a programme or policy pursuant to which Kim Lackenby was given information in relation to the applicant, including about speaking to the applicant concerning O.52 r.24A of the Federal Court Rules.
The applicant must file and serve all further affidavits she relies upon before 1 June 2007.
Any evidence in reply by any respondent must be filed and served before 22 June 2007.
The applicant must before 1 June 2007 serve copies of her notice under r.10.06 on each of the Attornies-General pursuant to the provisions of s.78B of the Judicary Act 1903, and a copy of this order.
The application is listed for final hearing on 8 August 2007 at 10.15 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney. (2 days allowed)
The applicant must file and serve in the Registry 14 days before the hearing a short written outline of submissions, a list of authorities, and list of affidavits which have been filed and which are relied upon at the hearing.
The respondents must file and serve a short written outline of submissions and list of authorities 7 days before the hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2015 of 2006
| AROHA LAWRANCE |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA |
First Respondent
| THE STATE OF NEW SOUTH WALES |
Second Respondent
| THE SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
Third Respondent
| THE GENERAL MANAGER, CRS AUSTRALIA |
Fourth Respondent
| THE AUSTRALIAN GOVERNMENT SOLICITOR |
Fifth Respondent
| ANDRAS MARUS |
Sixth Respondent
| THE REGISTRAR, FEDERAL COURT OF AUSTRALIA |
Seventh Respondent
| KIM LACKENBY |
Eighth Respondent
| MICHAEL WALL |
Ninth Respondent
| MICHAEL PACKER |
Tenth Respondent
| JOHN PETKOVSHEK |
Eleventh Respondent
| JULIET CURTIN |
Twelfth Respondent
| GERARD ENGLISH |
Thirteenth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have explained the nature of the proceeding in this matter in my previous judgment, Lawrance v The Commonwealth of Australia & Ors(No.1) [2006] FMCA 1792. In the orders which I made when giving that judgment on 17 November 2006, I made provision for the listing of the matter today to receive submissions concerning the making of orders allowing discovery or subpoenas.
The applicant has not sought leave to request the issue of any subpoenas. She has, however, filed a document headed, “points of claim – disclosure” on 11 May 2007, which explains her application for an order requiring discovery of classes of documents in terms set out therein.
A litigant in this Court does not have an automatic right to discovery. Federal Magistrates Act 1999 (Cth) s.45 gives what has been described by Driver FM in NAQR & Ors v Minister for Immigration [2002] FMCA 271 as a “rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted”, which I accept in the sense that there must be a justification for allowing discovery shown in the particular circumstances of the proceeding. The section provides:
45(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
Among the matters to be considered, s.45(2)(a) specifically identifies the consideration of whether allowing discovery: “would be likely to contribute to the fair and expeditious conduct of the proceedings”.
In the present matter, I do not propose to give an extensive judgment explaining why I have generally not been persuaded that discovery would appropriately be ordered in this case. I have carefully considered all the arguments presented in writing and orally by the applicant, and have examined each of the categories which she lists in her list in relation to which she seeks an order. My particular difficulties with their formulation were made apparent to the applicant in the course of submissions, and should be obvious when they are read. In my opinion, the applicant was unable to present to me, with any precision, an acceptable formulation of any of the classes of the documents which she now seeks.
I have also taken into account evidence presented by the respondents relevant to considering the issues raised by s.45. This evidence included, on the part of the State of New South Wales, affidavits explaining the difficulties that the Crown Solicitor and agencies of that State would face dealing with an order in the general terms of most of the applicant's requests which are directed at agencies which administer the New South Wales health system. The evidence includes another affidavit explaining difficulties in relation to discovery which would face the Guardianship Tribunal. It also presents evidence indicating that further searching for documents, additional to that which has already been performed in that agency under the Freedom of Information Act 1989 (NSW), would appear to be futile.
A similar point has been made on behalf of the Commonwealth respondents, by reference to extensive proceedings which have been conducted by the applicant under the Freedom of Information Act1982 (Cth), seeking to discover records concerning herself and her concerns which, in part, are now the subject matter of this proceeding. Those proceedings also sought the identification and disclosure of documents concerning a program under the Disability Services Act 1986 (Cth) of the nature described in her complaints to HREOC and alleged in the current proceeding. The outcome of the administrative proceedings under the FOI Act is explained in reasoned decisions of the Administrative Appeals Tribunal (see Lawrance v Centrelink (2005) AATA 14 and Lawrance v CRS Australia (2005) AATA 466).
The applicant has had the opportunity to present, on a merits appeal to an independent tribunal, her challenge to a ‘nil return’ response to her requests under the Freedom of Information Act 1982 (Cth), in relation to documents which essentially appear to me to be the same documents that she is now seeking discovery of under most of the paragraphs relevant to the general government agencies who are respondents to this present application. The decisions of the AAT were upheld respectively in Lawrance v Centrelink [2005] FCA 1318 and Lawrance v Chief Executive Officer, CRS Australia [2006] FCA 341. It appears to me that there is little prospect that an order for discovery is likely to be more fruitful than the administrative processes pursued by the applicant, and I consider that it would be oppressive and unjustified to require the respondents to repeat their searches.
I am not persuaded, on what the applicant has said to me, that the interests of the administration of justice would be served, in the present matter, by my making orders for discovery in the general terms which she seeks.
As my previous judgment reveals, aspects of her complaints, which she made to HREOC and which she has now brought to this Court, are not easily comprehended. It is conceivable that in the course of the final hearing, which I propose to appoint this afternoon, some reason might appear causing me to reconsider my refusal of discovery. Although I would not encourage the applicant to think that this is likely to happen, if it does, I shall entertain further applications for discovery or subpoenas if necessary, and shall then consider any necessary adjournments that might then arise. This is a latitude which would not normally be given to a legally represented applicant, but I am prepared to leave the question of discovery open to that extent, taking into account the circumstances of the present applicant.
What I have said above has one exception. Orders for discovery are sought by the applicant under paragraphs 23 and 24 of her document, which are specifically directed at the Federal Court of Australia and the personal respondents who are officers of that Court's registry and a solicitor in the office of the Australian Government Solicitor. In my opinion, it would be appropriate to allow the applicant an order for discovery in the terms sought in those paragraphs which is directed at those persons, specifically relating to the particular acts alleged in the complaint to HREOC and in this Court. It may be that such discovery will do no more than prove the absence of documents to support the applicant's case. However, in the circumstances of this matter, I consider that it is in the interests of the administration of justice that she should be allowed the opportunity to have discovery in relation to such documents. I would, however, propose to confine the order for discovery to documents specifically concerning the applicant, and will take further submissions from the parties in relation to reformulating the order for discovery.
Postscript. I note that the orders for discovery set out in the order attached to this judgment, were in the re-formulated terms proposed by the applicant and accepted by the solicitor for the relevant respondents.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date:
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