Lawrance v The Commonwealth of Australia and Ors (No.4) - [2007] FMCA 1408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWRANCE v THE COMMONWEALTH OF AUSTRALIA & ANOR (No.4)

[2007] FMCA 1408

HUMAN RIGHTS – Practice – admissibility and rejection of irrelevant and embarrassing evidence – refusal to allow amendment in relation to alleged guardianship order.

Evidence Act 1995 (Cth), ss.55, 78, 135
Federal Magistrates Court Rules 2001 (Cth), r.15.29
Human Rights and Equal Opportunities Act 1986 (Cth), s.46PO

Lawrance v Commonwealth & Ors (No.1) [2006] FMCA 1792
Lawrance v Commonwealth & Ors (No.2) [2007] FMCA 797
Lawrance v Commonwealth & Ors (No.3) [2007] FMCA 806

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:

8 August 2007

Delivered at:

Sydney

Delivered on:

8 August 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First and Third to Respondents:

Mr S Lloyd

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

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)

The background to this matter can be found in my three previous judgments given in the course of its case-management (Lawrance v Commonwealth & Ors (No.1) [2006] FMCA 1792, Lawrance v Commonwealth & Ors (No.2) [2007] FMCA 797, and Lawrance v Commonwealth & Ors (No.3) [2007] FMCA 806). On 18 May 2007,

I set the application down for final hearing today, and confirmed this order at a directions listing on 29 June 2007. Two days were set aside for the reception of all written and oral evidence, and I foreshadowed that I would give further directions for written submissions once the evidence was completed. [Postscript: the taking of evidence was completed on 9 August 2007, and I have directed that the parties’ submissions will be received by way of written submissions according to a time-table, which will reserve the matter for judgment on

16 October 2007.]
In my orders made on 29 June 2007, I directed that the respondents should file and serve written objections to voluminous affidavits filed by the applicant in the proceedings, and allowed the applicant to lodge a written response. I foreshadowed that I would then consider my rulings when reading the material in Chambers prior to the hearing. This appeared to have the agreement of the parties, and today they did not seek to supplement their written submissions.
The respondents have filed detailed written objections to all of the affidavits which the applicant had foreshadowed in an outline of argument which she filed on 22 July 2007 that she wished to rely upon.
The applicant then filed a 37 page written response to those objections. She has also sought to rely on a further affidavit filed on 3 August 2007, which essentially repeats matters covered in her first affidavit to which objections were taken. I have indicated that I will rule upon that affidavit after hearing the parties' further submissions in the light of my present reasons for ruling upon the objections to her other affidavits. [Postscript: I subsequently admitted all of the affidavit, subject to further consideration of the relevance and weight to be given to some parts of it.]
I have carefully considered each of the particular objections raised by the respondents in their written submissions, and each of the particular responses of the applicant, when reading the affidavit material. I do not propose to set out each of those particular objections and respond to them individually in these reasons. My specific rulings on those objections appear in the attached Schedule, [which was given to the parties immediately after I delivered this judgment]. I consider that they can be sufficiently understood by reading the relevant evidence and arguments in the light of my broad reasoning which I shall now explain.
When considering the objections, I have addressed the considerations raised by the Evidence Act 1995 (Cth) (“Evidence Act”) in relation to the admissibility of evidence, in particular s.55 which defines the overriding concept of relevant evidence:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a)     the credibility of a witness; or
(b)     the admissibility of other evidence; or
(c)    a failure to adduce evidence.
I have also considered the Court's general discretion under s.135 to exclude evidence, notwithstanding that it may have some relevance or arguable relevance.
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
This Court's Rules which have been developed to allow the Court to operate in an expeditious manner, according to its status as an inferior and relatively summary court of record, include a provision which gives the Court further powers to refuse to receive material which is in procedural terms ‘embarrassing’, if it accords with the description set out in that rule.
R.15.29
Objectionable material may be struck out
(1)The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
(2)Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.
Considering all of the twelve affidavits which the applicant seeks to rely upon, I have identified those parts which contain her narrative of events involving the personal respondents themselves and the particular conduct covered by her complaint to HREOC as previously ruled upon by me. These parts are largely found in her first affidavit, and also to a minor extent in the tenth affidavit and the twelfth. There are some arguable formal and other objections in relation to these parts. However, in relation to objections to the admissibility of the applicant’s opinions and generalisations about what happened in her dealings with the Federal Court and AGS officers, there are countervailing arguments available to the applicant. She has invoked s.78 of the Evidence Act, which alleviates the previous rigors of the ‘opinion rule’, and also other provisions allowing an element of discretion in the admission of evidence which might previously be excluded in response to formal or insubstantial objections.
In the circumstances of this case, I have decided that the proper way to deal with all these parts of her affidavits is to admit them into evidence, without engaging in a fine analysis of each of the sentences in them to which objection is taken, reserving until my final judgment my conclusions as to their probative weight and relevance.
Generally, in relation to the other material, I have attempted to make rulings which allow into evidence all evidence which is reasonably arguable to be admissible, while seeking to remove a very large volume of material which is plainly embarrassing in the sense that it answers one or more of the adjectives in r.15.29 or gives rise to the prejudice and difficulties identified in s.135 of the Evidence Act.
I accept that the applicant perceives all of this material to be relevant to the issues which I must decide. However, her perceptions of the relevance of material, which in my own judgment has no rational probative value in relation to the issues in the matter, cannot itself render that evidence admissible. As I shall explain, in my opinion, most of the material which I have decided to exclude is not capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact at issue in the proceedings, in the terms of s.55 of the Evidence Act.
I accept that some other parts of material which I have decided to exclude might conceivably be indirectly relevant to providing ‘background’ to the issues in the case. However, I consider that these parts have a probative value which is substantially outweighed by the dangers of admitting it which are identified in s.135 or by one or more of the characteristics described in r.15.29. I therefore have rejected almost all of the ‘background’ information in the affidavits.
In relation to particular categories of evidence presented by the applicant I make these further points.
First, as I have explained above, I admit all of the applicant's narrative of events involving specific conduct of Federal Court and Australia Government Solicitor personnel, which is the subject matter of the complaint to HREOC and of this proceeding, and of its effects on the applicant.
Secondly, the applicant's evidence in her first affidavit which affirms the absence of any mental condition, disability or impairment has been admitted. Her evidence as to this has not been put into issue by any respondent, and therefore the very extensive repetition and elaboration of this evidence in later affidavits, with reference to a multitude of factual circumstances having no other bearing on the issues in the proceedings, has been rejected by me as manifestly unnecessary and embarrassing to the proceedings, within the descriptions used in r.15.29.
Thirdly, some opinion evidence in the applicant's principal affidavit, which is of dubious admissibility and which attempts to relate the particular conduct alleged on the part of the personal respondents to the existence of a Commonwealth or State Government agency disability program or policy directed at her has been admitted. However, the repetition of such evidence and contentions in subsequent affidavits has been rejected by me under r.15.29. I find that none of the excluded material has probative value within the definition of ‘relevant evidence’ in s.55, rationally assisting proof of the existence of the alleged program or policy. It also manifestly satisfies all of the reasons for excluding it under s.135.
Fourthly, I have rejected very extensive material which amounts to no more than submissions repeating the general contentions of fact and law made in the applicant's points of claim documents, her particulars and her written submissions. These parts of the applicant’s affidavits serve no useful function in assisting the Court or respondents to understand the applicant's case, and are embarrassing to the proceeding. I have therefore rejected those parts.
I intend to allow the applicant the opportunity to make further written submissions after all evidence has been received, and also in reply to any submissions then made by the respondents. She will be, at that time, in a better position to focus her submissions on the evidence which has been admitted and upon the relevant law.
Fifthly, much of the contents of all of the affidavits filed by the applicant gives details of the conduct of numerous persons other than the personal respondents to this case, which is alleged to have occurred in the course of the applicant's personal and employment life prior to 2005, and in which she alleges that there were false imputations of mental disability or the implementation of a disability program. I have already ruled in my first interlocutory judgment in this matter on 17 November 2006 that the applicant’s complaints about the conduct of these other people are not within the terminated complaint which defines this Court's jurisdiction in the present matter under s.46PO of the Human Rights and Equal Opportunities Act 1986 (Cth). The applicant’s evidence of these matters is therefore irrelevant and inadmissible in so far as she continues to pursue complaints which

I have found not to be within jurisdiction.
Furthermore the alleged conduct of these other persons prior to 2005, as narrated by the applicant in her affidavits, does not in my opinion carry any probative assistance towards establishing, directly or indirectly, the particular conduct complained about in this proceeding, nor its relevant character under the anti-discrimination legislation invoked by the applicant, nor its relevant effects on the applicant. In my opinion, it is inadmissible under the relevancy test in s.55.
In relation to the jurisdictional ambit of the present matter, I would construe the complaint to HREOC, insofar as it was extended to encompass agencies of the Commonwealth and State, as doing so only to the extent that the conduct of the present personal respondents in 2005 and 2006 was alleged to have evidenced and formed part of a program or policy directed at her by Commonwealth and State agencies. I do not consider that the complaint raised a general inquiry into the conduct of the agencies of the State and Commonwealth in years prior to 2005, which the applicant has sought to establish in her affidavits. She has other proceedings on foot in this Court, based on earlier complaints to HREOC, where these matters have been raised in the context of events occurring in previous years.
Sixthly, even where some of the excluded material concerning events prior to 2005 might have indirect relevance by providing ‘background’ to the relevant evidence of the applicant, its capacity to assist the proof of the applicant’s relevant complaints, in my opinion, is insubstantial. The prejudice the respondents face in being forced to address all of that history is clear, and, in my opinion, it should be excluded under s.135 of the Evidence Act. I therefore have also relied upon that provision in relation to various parts of the affidavits shown in the Schedule. The repetitive and objectionable form of the narrative of these events also gives rise to proper rejection of most of that material under r.15.29.
Seventhly, much of this background material consists of detailed accounts of, and reflections by the applicant upon, her personal and employment history, including her relationship with her family, friends and other people over many years. It physically duplicates, as well as repeats in the body of affidavits, material presented in other past and current Court proceedings having no bearing on this proceeding.

I consider that all of such material is irrelevant and embarrassing in its prolixity and repetition. I have therefore excluded it under r.15.29.
Eighthly, to the extent that parts of these narratives of events prior to 2005 are argued to provide evidence of a disability policy or program which is also to have accompanied or been revealed in the present complaints, that evidence is rejected on the same basis as the above.

I have found none of that material rationally probative of the actual existence of any such policy or program or services as are alleged by the applicant.
Ninthly, to the extent that it is suggested that all the ‘background’ evidence presents comparators in relation to the unlawful discrimination complained of in 2005, I have not found any of it to be probative in relation to such issues. Moreover, the contentions in relation to unlawful discrimination made by the applicant may well not require any evidence of specific comparators, since the Court would be able to apply common sense and experience to considering how persons without imputed disabilities would be treated in the particular circumstances described by the applicant.
My above reasons broadly explain my rulings summarised in the attached Schedule.
Before completing this judgment, I should also address an application for amendment made at the start of today's hearing by the applicant, which she formulated at page 37 of her “response to objections” filed on 3 August 2007. She applied to extend her principal application, as already amended, “to seek an order revoking all guardianship orders or instruments made in relation to me”. Her reference to guardianship orders or instruments appears to be a reference to determinations or actions of the NSW Guardianship Tribunal, which the applicant now suspects have been made without her knowledge or consent.
The applicant’s affidavits contain at various points her speculations and complaints about alleged Guardianship orders and proceedings. I have not found any of this material to be rationally probative, whether directly or indirectly, of the existence of any such order or instrument. Moreover, in my opinion, the orders sought in the amendment are not encompassed by the matters complained of to HREOC, and which have been brought to this Court. Nor was the Guardianship Tribunal a respondent to the terminated complaint. In my opinion, the amendment should therefore not be allowed, the Guardianship Tribunal should not be joined as a respondent, and all the applicant’s evidence directed at challenging the alleged guardianship order or instrument should not be admitted in this proceeding.
Postscript. I also note that, at the start of the hearing on 8 August,

I also ruled upon some other preliminary applications made by Ms Lawance, including a request that I should revisit her application for discovery which was addressed in my third judgment cited above.

I refused that application, indicating that my reading of the evidence did not cause me to alter my previously expressed opinions. My reasons for this, and other rulings in the course of the hearing which are not covered by this judgment, will appear from the transcript of what occurred during the hearing on 8 and 9 August 2007.

Summary of rulings on objections to Applicant’s affidavits.

1 Affidavit affirmed 14 June 2006

Paragraph	Objections	Ruling
1-18	Submissions, conclusions, form	Admit, subject to further assessment of weight and relevance.
19-27	Relevance	Reject.
28 (first occurring) -30	Conclusion, form	Admit, subject to further assessment.
33-35	Relevance, speculation	Reject.
36-37	Relevance	Admit subject to further consideration of relevance
38-63	Relevance, form	Reject, including under r.15.29(1), and Evidence Act s.135.
64-81	Relevance, form	Admit, subject to further consideration of admissibility and weight in relation to non-existence of disability and alleged disability programme.
83-88	Speculative, submission	Admit, subject to further consideration of admissibility and weight in relation to injury to feelings.
89-93	Relevance, form	Reject, including under r.15.29(1) and Evidence Act s.135.
94-96	Conclusion, form, submission, relevance	Admitted, subject to further consideration. Second sentence of 96 rejected on relevance and r.15.29(1).
97-108	Relevance	Reject, including under r.15.29(1) and Evidence Act s.135.

2 Affidavit affirmed 11 July 2006

Paragraph	Objections	Ruling
All, annexures	Relevance	Reject, including under r.15.29(1) and Evidence Act s.135.

3 Affidavit affirmed 25 July 2006

Paragraph	Objections	Ruling
All	Relevance	Reject, including under r.15.29(1) and Evidence Act s.135.

4 Affidavit affirmed 28 August 2006, re Minister for Aging and Guardianship Tribunal.

Paragraph	Objections	Ruling
All	Relevance etc	Reject, including under r.15.29(1) and Evidence Act s.135.

5 Affidavit affirmed 28 August 2006, re proposed respondents

Paragraph	Objections	Ruling
1-123	Submissions not evidence, relevance	Reject, including under r.15.29(1) and Evidence Act s.135.

6 Affidavit affirmed 28 August 2006, re Michael Pasfield

Paragraph	Objections	Ruling
All	Relevance	Reject, including under r.15.29(1) and Evidence Act s.135.

7 Affidavit affirmed 28 August 2006, re Stephen Hodges

Paragraph	Objections	Ruling
All	Relevance, submission not evidence	Reject, including under r.15.29(1) and Evidence Act s.135.

8 Affidavit affirmed 28 August 2006, proposed amended application

Paragraph	Objections	Ruling
All	Relevance	Reject.

9 Affidavit affirmed 12 January 2007

Paragraph	Objections	Ruling
1-28 and Annexures	Relevance, submissions not evidence	Reject, including under r.15.29(1) and Evidence Act s.135.

10 Affidavit affirmed 1 March 2007, response to request for particulars

Paragraph	Objections	Ruling
5-22	Relevance, submission not evidence	Received as applicant’s response to request for particulars. Statements of fact are conditionally admitted as evidence, subject to further consideration of admissibility, including evidentiary weight and relevance to terminated complaint.

11 Affidavit affirmed 17 April 2007

Paragraph	Objections	Ruling
1-147 and Annexures	Relevance, submission not evidence, repetitive, r.15.29(1).	Reject, including under r.15.29(1) and ss.55 and 135 of the Evidence Act.

12 Affidavit affirmed 29 May 2007

Paragraph	Objections	Ruling
1-25	Submission not evidence, relevance, repetitive, r.15.29(1).	Reject, including under r.15.29(1) and Evidence Act s.135.
26-30	Relevance, opinion, form.	Admit, subject to further assessment of weight and relevance.
31-205 and annexures	Submission not evidence, relevance, repetitive, r.15.29(1).	Reject, including under r.15.29(1) and ss.55 and 135 of the Evidence Act.

13 Affidavit affirmed 3 August 2007

Paragraph	Objections	Ruling
1-19	Relevance, opinion, form	Admit, subject to further assessment of weight and relevance.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 22 August 2007